This Roth Digital Services Access Agreement ("Agreement") is entered into by the subscriber ("you") and Roth Digital. This Agreement sets forth the terms and conditions under which you agree to use the Roth Digital Services and under which Roth Digital, agrees to provide the services to you. You and Roth Digital agree to the following terms and conditions:
1. SCOPE OF SERVICE
1.1 Roth Digital will provide you with access to web hosting / email services, or as applicable, Web Hosting Account (the "Service") in accordance with the terms of this Agreement. The Service consists of: (a) web hosting access, (b) use of an electronic mail account or multiple accounts where available.
1.2 The Service is generally available daily, seven days a week, except for regularly scheduled maintenance. Roth Digital may, at anytime, without notice or liability, restrict the use of the Service or limit its time of availability in order to perform maintenance activities.
2. AUTHORIZED USER
2.1 You warrant that the information for your registration with the Service is correct and complete, and you agree to contact Roth Digital to update your information promptly. Roth Digital will provide you with a User Identification code ("UserID") and password for each account purchased to enable your access to the Service.
2.2 You warrant that you are eighteen years of age or older and that you are responsible for all usage of the Service and any other services accessed through the Service on your account.
2.3 You may not resell the Service or engage in similar activities, commercial or non-commercial, which constitute resale, without permission.
2.4 Roth Digital will issue email aliases, IP addresses, and hostnames based upon availability of the alias requested. If you surrender your alias by changing it, terminating your account, or because your account is terminated for cause, Roth Digital shall not be obligated to reserve that alias for you or to receive or forward email messages addressed to that alias.
3. TERM AND TERMINATION
3.1 This Agreement goes into effect when you have completed your registration for the Service. The Agreement shall continue in full force and effect on a yearly basis until it is terminated.
3.2 Either party may terminate this Agreement without cause by giving notice to the other in accordance with the notice provision set forth at Paragraph 14.5 below. Termination by you will be effective immediately upon your notice to Roth Digital, but you will be responsible for charges that would otherwise have become due for the balance of the term.
3.3 If, in the sole discretion of Roth Digital: (a) you are in breach of any of the terms of this Agreement (including all policies regarding abuse and acceptable use of the Service), (b) your use of the Service is disruptive or causes a malfunction of the Service, or (c) Roth Digital receives an order from a court of competent jurisdiction to terminate your service, then Roth Digital may terminate or suspend your Service immediately without notice. For termination in accordance with Section 3.3, you shall be liable for fees as if you cancelled the Services in Section 3.2. The foregoing notwithstanding, Roth Digital reserves the right to pursue any and all legal and equitable claims against you pertaining to your use or misuse of the Service. Roth Digital, in its sole discretion, may refuse to accept your application for renewal or re-subscription following a termination or suspension of your use of the Service .
3.4 In the event that a ruling, regulation, or order issued by a judicial, legislative or regulatory body causes Roth Digital to believe that this Agreement may be in conflict with such rules, regulations and orders, Roth Digital may terminate this Agreement immediately without notice.
3.5 You agree that if your Service is terminated for any reason, Roth Digital has the right to delete all data, files and other information stored in or for your account.
You agree that Roth Digital may revise the terms and conditions of this Agreement (including any of the policies which may be applicable to your use of the Service) by posting such revisions to the Roth Digital ('Web Site') at http://www.Roth Digital. You agree to visit this Web site periodically to be aware of and review any such revisions. By continuing to use the Service after revisions are in effect, you accept the revisions and agree to abide by them.
5. UPLINK PROVIDER
5.1 The majority of the Service and your connection for your use of the Service will be provided by a Uplink Provider ("UPLINK"), who has agreed to connect Roth Digital services to the Internet and to serve you. The UPLINK is a separate network provider and independently establishes the charges, terms and conditions of the service it provides to Roth Digital. Roth Digital will enforce the rules and policies of the UPLINK without question.
6. MANAGEMENT OF YOUR DATA
6.1 You are solely responsible for obtaining, installing, and maintaining suitable equipment and software, including any necessary system or software upgrades, patches or other fixes, which are or may become necessary to access the Service.
6.2 You are responsible for management of your information, including but not limited to back-up and restoration of data, erasing data from disk space you control and changing data on your end. You are responsible for development and maintenance of any security procedures you deem appropriate, such as logon security and encryption of data to protect your information. Roth Digital is not responsible for back-up and restoration of your information. If at any time during the period you use the Service Roth Digital provides free or for-fee software, including network security software, you agree that your sole right to recourse, including but not limited to damages for failure of such software to perform, is against the manufacturer of such software.
6.3 For the purposes of back-up and maintenance, Roth Digital may use, copy, display, store, transmit, translate, rearrange, reformat, view and distribute your information to multiple Roth Digital servers. Roth Digital does not guarantee that these procedures will prevent the loss of, alteration of, or the improper access to, your information.
7. BILLING AND PAYMENT
7.1 Roth Digital fees for your Service are supplied to you during your order, and as may be updated on the Web site. You are responsible for updating your customer information (e.g., name, address, telephone number) Roth Digital as soon as it changes by visiting our online contact form.
7.2 You agree to pay the Roth Digital charges for your Service. Activation fees, installation fees, equipment charges and other non-recurring charges if applicable, will be included in your first year's bill.
7.3 Account service fees are paid annually. Payment options available to you will be specified on your renewal invoice. Invoices for payment due will be sent via email to the last known email address of the primary account contact approximately 30 days prior to the payment due date. All billing notices will be made in accordance with the notice provision set forth at Paragraph 14.5 below.
7.3. A Service to you may be denied or discontinued without notice at anytime in the event your account becomes past due.
7.3.B Roth Digital is not responsible for any additional charge(s) or fee(s) applied to your billing account, for any reason, including but not limited to, interest, insufficient credit or insufficient funds.
7.4 Check Payments are permitted as payent of serivce for annual agreements. Check payments returned for non sufficient funds (NSF) will result in an addtional charge added to the account balance in the amount of $25.00 + any fees charged to Roth Digital. In addtion, the account will be suspended.
7.5 Roth Digital does not guarantee or warrant that any phone / support number provided will be a local call from your location. Roth Digital IS NOT RESPONSIBLE FOR ANY CHARGES, INCLUDING BUT NOT LIMITED TO, LONG DISTANCE, METERED LOCAL OR TOLL CHARGES INCURRED WHEN YOU CALL OUR SUPPORT OR ACCESS THE SERVICE.
7.6 If any portion of your bill is not paid by the due date, Roth Digital may charge you a late fee on unpaid balances and may also terminate your Service without notice. The late fee will be the lesser of one and one-half percent (1.5 %) per month, or the highest rate permitted by law. In the event Roth Digital utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse Roth Digital for all expenses incurred to recover such monies, including attorney's fees.
7.7 Roth Digital reserves the right to suspend services (prevent access to web site and email) at anytime if payment is not received. In most cases, your account will be suspended after 15 days of non payment.
7.8 If your service is suspended due to non-payment, a $15.00 reactivation fee will apply in addition to any past due amount from the time your account subscription was due and the suspension of your service. Accounts suspended for more than 15 days may be deleted. Accounts that have been deleted can not be automatically reactivated. All files associated with a deleted account will be lost.
7.9 If your account becomes past due you understand that Roth Digital reserves the right to assume ownership of your domain name. Failure to bring your account current may result in your domain name being sold to the public. At our sole discretion, Roth Digital may release ownership of your domain name in exchange for the balance due on your account plus applicable fees.
8. SOFTWARE LICENSE
8.1 Your use of software to connect or interact with any and all Roth Digital Services is your responsibility. This software is not necessarily created or managed by Roth Digital.
9. WEB MAIL / ELECTRONIC MAIL
9.1 Web Mail may be made available to You as an optional feature of certain Roth Digital Service packages.
9.2 Additional terms and conditions applicable to Web Mail, including pricing if applicable, shall be posted at http://www.Roth Digital. In the event of a breach by you of the terms and conditions applicable to Web Mail or any email service, Roth Digital has the right to immediately terminate your email without notice. Roth Digital has the right to delete all data, files, and other information stored on or for your Web Mail upon termination of your Service for any reason.
10. ACCEPTABLE USE AND YOUR RESPONSIBILITIES
10.1 You agree to comply with the terms set forth in Attachment B, Acceptable Use and Your Responsibilities, which is attached hereto and incorporated herein.
11. LIMITATIONS ON USE AND WARRANTIES
11.1 The Internet is an international computer network of both government and non-government inter-operable packet switched data networks. The Internet is not owned, operated or managed by, or in any way affiliated with Roth Digital, and Roth Digital is not responsible and has no control over the information or materials accessible via the Internet through use of the Service. Roth Digital does not own or control all of the various facilities and communications lines through which access may be provided.
11.2 You agree that your use of the Service and the Internet, without limitation, is your sole responsibility, is solely at your own risk and is subject to all applicable local, state, national and international laws and regulations.
11.3 You agree that the reliability, availability and performance of resources accessed through the Internet or other services connected or linked to Roth Digital's Service are beyond Roth Digital's control and are not in any way warranted or supported by Roth Digital.
11.4 You agree that Roth Digital cannot and does not guarantee or warrant that files available for downloading through the Service will be free of viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Service for the reconstruction of any lost data.
11.5 You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information you transmit over the Internet. Roth Digital is not responsible for invalid destinations, transmission errors, or corruption or security of your data.
11.6 You understand and agree that Roth Digital does not warrant the Service to be uninterrupted or error free. You further understand and agree that Roth Digital has no control over third party networks or web sites that you may access in the course of your use of the Service, and that delays and disruptions of other network transmissions are completely beyond the control of Roth Digital. Roth Digital cannot and will not guarantee that the Service will provide Internet access that meets your needs.
11.7 You are not authorized to use any Roth Digital name or mark as a hypertext link to any Roth Digital Web site or in any advertising, publicity or in any other commercial manner without the prior written consent of Roth Digital. You understand that your ability to link to a Web site through the Service does not, in any way, represent or imply Roth Digital's approval of, or its determination of the quality of that product or service. The links provided through the Service are maintained by their respective organizations, who are solely responsible for their content.
11.8 No warranty is given that the Service is error free. Roth Digital makes no warranty regarding any transactions executed through the Service.
12. LIMITATION OF LIABILITY AND REMEDIES
12.1 THE SERVICE IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS. DO NOT USE THE SERVICE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT OR BUSINESS MAY RESULT IF AN ERROR OCCURS. YOU EXPRESSLY ASSUME ALL RISK FOR SUCH USE.
12.2 EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, Roth Digital, ITS THIRD PARTY LICENSORS AND THIRD PARTY SERVICE PROVIDERS DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANT OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12.3 IN NO EVENT SHALL Roth Digital, ITS THIRD PARTY LICENSORS OR THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE PROVIDED UNDER THIS AGREEMENT, AND WITH REGARD TO ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE INTERNET OR ANY TRANSACTIONS CONDUCTED ON THE INTERNET, EVEN IF Roth Digital HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
12.4 Roth Digital, ITS THIRD PARTY LICENSORS AND THIRD PARTY SERVICE PROVIDERS DISCLAIM ANY LIABILITY OR RESPONSIBILITY ARISING FROM ON ANY CLAIM THAT YOUR ACCESS OR USE OF THE SERVICE PROVIDED UNDER THIS AGREEMENT INFRINGES ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
12.5 This Paragraph 12 applies to all claims by you irrespective of the cause of action underlying your claim, including, but not limited to: (a) breach of contract, even if in the nature of a breach of condition or a fundamental term or a fundamental breach, or (b) tort, including but not limited to Roth Digital's negligence or misrepresentation.
12.6 All limitations and disclaimers stated in Paragraph 11 above and this Paragraph 12 above also apply to Roth Digital' third party licensors and third party service providers as third party beneficiaries of this Agreement. Any rights or limits stated herein are the maximum for which Roth Digital, its third party licensors and service providers are collectively responsible.
12.7 The remedies expressly set forth in this Agreement are your sole and exclusive remedies.
13.1 You agree to defend, indemnify and hold harmless Roth Digital from and against all liabilities, costs and expenses, including reasonable attorney's fees, related to or arising from: (a) any violation of this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, software, or the Internet.
14. GENERAL PROVISIONS
14.1 Roth Digital will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, or an inability to obtain necessary equipment or services.
14.2 Roth Digital' failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future.
14.3 You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void.
14.4 You may have additional rights under certain laws (such as consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply, our exclusions or limitations may not apply to you.
14.5 Notices by Roth Digital to you shall be deemed given: (a) when sent to your last-known email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to your home or business, as applicable.
With regard to electronic communications, you and Roth Digital further agree:
A. The EMAIL ADDRESS of a sender, contained in an electronic Communication (e.g., 'email'), is legally sufficient to verify the sender's identity and the authenticity of the communication.
B. An electronic communication (e.g., 'email') sent containing your EMAIL ADDRESS establishes you as its originator and has the same effect as a document with your written signature on it.
C. An electronic communication (e.g., 'email'), or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.
14.6 If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
14.7 You and Roth Digital agree that this Agreement shall be interpreted in accordance with the substantive laws of the State of Oregon, without reference to its principles of conflicts of laws. You and Roth Digital consent to the exclusive personal jurisdiction of and venue in a court of competent jurisdiction located in Portland, Oregon. Any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
14.8 Use, duplication or disclosure by any Government entity is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Roth Digital, PO Box 25342, Portland, Oregon, 97298-0342.
14.9 This Agreement, including all Attachments hereto, which are fully incorporated into this Agreement, constitutes the entire agreement between you and Roth Digital with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. This Agreement may be revised by Roth Digital as set forth in Paragraph 4, "Revisions", above. Any terms varying from this Agreement in any order, written or electronic communication from you are void. In the event of a conflict between this Agreement and any Attachments, the terms of the Attachments shall prevail.
ACCEPTABLE USE AND YOUR RESPONSIBILITIES
1. This Attachment B, "Acceptable Use and Your Responsibilities" sets forth the Roth Digital policy on the acceptable use by you of the Service. It is designed to help protect the Service, Roth Digital customers and the Internet community, from irresponsible or illegal activities.
2. Roth Digital reserves the right to decline to provide Service to you, or to terminate your Service for material breach, if your alias or aliases of additional users, whether explicitly or implicitly, and in the sole discretion of Roth Digital: (a) is obscene, indecent, pornographic, sadistic, cruel or racist in nature, or of a sexually explicit or graphic nature; (b) espouses, promotes or incites bigotry, hatred or racism; (c) might be legally actionable for any reason, or (d) is objectionable for any reason.
3. You may not use the Service as follows: (a) for any unlawful, improper or criminal purpose or activity; (b) to post or transmit information or communications that, whether explicitly stated, implied, or suggested through use of symbols, are obscene, indecent, pornographic, sadistic, cruel, or racist in content, or of a sexually explicit or graphic nature; or which espouses, promotes or incites bigotry, hatred or racism; or which might be legally actionable for any reason; (c) to attempt to access or access the accounts of others, to spoof or attempt to spoof the URL or DNS address of Roth Digital or any other entity, or to attempt to penetrate or penetrate security measures of Roth Digital or other entities' systems ("hacking") whether or not the intrusion results in corruption or loss of data; (d) to bombard individuals or newsgroups with uninvited communications, data or information, or other similar activities, including but not limited to "spamming", "flaming" or denial or distributed denial of service attacks; (e) to transmit unsolicited voluminous emails (for example, spamming) or to intercept, interfere with or redirect email intended for third parties using the Services; (f) to introduce viruses, worms, harmful code and/or Trojan horses on the Internet; (g) to post information on newsgroups which is not in the topic area of the newsgroup; (h) to interfere with another person's usage or enjoyment of the Internet or this Service; (i) to post or transmit information or communications that are defamatory, fraudulent, obscene or deceptive, including but not limited to scams such as "make-money-fast" schemes or "pyramid/chain" letters; (j) to damage the name or reputation of Roth Digital, its parent, affiliates and subsidiaries, or any third parties; (k) to transmit confidential or proprietary information, except solely at your own risk; (l) to violate Roth Digital' or any third party's copyright, trademark, proprietary or other intellectual property rights, including trade secret rights; (m) to use more than one IP address; (n) to generate excessive amounts (as determined by Roth Digital in its sole discretion) of Internet traffic, or to disrupt net user groups or email use by others; (o) to engage in activities designed to or having the effect of degrading or denying Service to Roth Digital users or others (including activities that compromise a server, router, circuit or software; (p) to use any name or mark of Roth Digital, its parent, affiliates or subsidiaries, as a hypertext link to any Web site or in any advertising publicity or other commercial manner; (q) to use your Roth Digital account for the purpose of operating a server of any type without written permission; (r) using the Service or the Internet in a manner intended to threaten, harass, intimidate,; (s) installing "auto-responders," "cancel-bots" or similar automated or manual routines which generate excessive amounts of net traffic, or disrupt net user groups or email use by others; (t) exporting software or any information in violation of US export laws; or (u) using the Service in contravention of the limitations of the pricing plan you have chosen; or (v) for users who have been assigned an IP, such customers must only use their assigned IP address.
4. You shall comply with all applicable local, state, national and international laws and regulations, including those related to data privacy, international communications, and exportation or technical or personal data. You represent that you are not a specifically designated individual or entity under any US embargo or otherwise the subject, either directly or indirectly (by affiliation, or any other connection with another party) to any order issued by any agency of the US Government limiting, barring, revoking or denying, in whole or in part your US export privileges. You agree to notify Roth Digital if you become subject to any such order.
5. You shall not delete any proprietary designations, legal notices or other identifiers belonging to third parties from any information obtained or sent using the Services and shall not impersonate any person or use a false name while using the Services. You agree to obtain all required permissions if you use the Service to receive, upload, download, display, distribute, or execute Software or perform other works protected by intellectual property laws including copyright, trademark, trade secret and patent laws. You agree to cooperate with Roth Digital and provide requested information in connection with all security and use matters. You agree to promptly notify Roth Digital if you suspect unauthorized use of the Service or of your UserID. You remain liable for unauthorized use until your notification to Roth Digital. You agree that your name, UserID and other identifying information may be placed in our user directory.
6. Roth Digital reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong.
7. Roth Digital reserves the right, but shall be under no obligation, to monitor your compliance, or the compliance of other subscribers, with the terms, conditions or policies of this Agreement.