Tirrus Content Management System
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Website Hosting Terms and Conditions
1. Acceptance of Terms
This is a legal agreement ("Agreement") between you, the user, together with any company or other business entity you are representing, if any (collectively, the "Member") and Digital Assets, Inc. This Agreement governs the access and use of all products and services, including but not limited to Digital Assets, Inc. Web Sites, for which Member registers and which are provided by or through any web site or co-branded web site owned or controlled by Digital Assets, Inc., or any successor web sites (collectively, the "Service"). IF MEMBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PURCHASE, USE OR ACCESS THE SERVICE.
The Service is offered to Member conditioned upon Member's acceptance without modification of this Agreement. Member acknowledges that, from time to time, it may be necessary for Digital Assets, Inc. to update or revise certain provisions of the Agreement. By signing up for any Digital Assets, Inc. Service and accepting this Agreement, Member agrees that Digital Assets, Inc. may change the terms of the Agreement in its sole discretion without specific notice to Member. If Member does not agree to the changes proposed by Digital Assets, Inc., or to any terms in this Agreement, Member's sole and exclusive remedy is to cancel Member's Digital Assets, Inc. Service ("Member's Account"). Notwithstanding the foregoing, Digital Assets, Inc. reserves the right to cancel, suspend or refuse access to the Service to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Agreement.
2. General Use of the Service
Member shall not use the Service, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. Member agrees that Member will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other Web site or product, transfer, or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Service other than for use as contemplated in any Service, including but not limited to the creation or operation of Member created Web sites, (collectively, "Member Site")in accordance with this Agreement. This means, among other activities, that Member agrees not to engage in the practices of "screen scraping", "database scraping", or any other activity with the purpose of obtaining lists of users or other information. Member agrees that Member will not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party's use and enjoyment of the Service. Member may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service. Except with the written permission of Digital Assets, Inc., Member agrees that Member will not access or attempt to access password protected, secure or non-public areas of the Service. If Member attempts to access prohibited areas of the Service, Member may be subject to prosecution.
3. Charges Billing and Advertisements
Digital Assets, Inc. reserves the right to charge fees for the Service or any portion thereof and any applicable fees will be posted on the Digital Assets, Inc. Web Site. If Member is required to pay a fee for all or any part of the Service for which Member has chosen to register. Member hereby authorizes Digital Assets, Inc. to charge Member's valid and current credit or debit card in advance for all applicable fees incurred by Member in connection with Member's chosen Service and Member's Account. Member's Service and Account will automatically renew at the end of each subscription period, unless the Service or Member Account is terminated in advance of the end of the then-current term. If there are any annual, monthly or similar periodic subscription fees associated with the Member Account, these fees will be billed automatically to the Member's designated valid and current credit or debit card at the start of each renewal period, unless Member terminates the Service before the relevant period begins. If Member registered for the Service using a Digital Assets, Inc. promotional code or discount, after the initial promotional period expires, Member's subscription (base package and any purchased upgrades) will automatically be renewed and billing will continue at the then-current prices for the Service. Member further acknowledges that it is Member's responsibility to notify Digital Assets, Inc. of any changes to Member's credit card and to update Member's credit card number if Member's credit card has expired otherwise Member's access to the Service may be disconnected or interrupted. All fees shall be paid in U.S. dollars. Digital Assets, Inc. shall consider ownership of an account and its constituent site(s) to be the identity of the person providing payment; or for free trial sites, the identity of the person registered for the trial period.
Digital Assets, Inc. reserves the right to change any fees (which includes but is not limited to, increasing prices and charging a fee for upgrades and/or a Service for which Digital Assets, Inc. does not currently charge a fee) at any time, provided, however, that Digital Assets, Inc. will provide Member with reasonable notice prior to making any fee changes. In addition, Digital Assets, Inc. will also give Member reasonable notice before any modification to the Service that could adversely impact Member's Site(s). If Member finds any change to the Service to be unacceptable, Member is free to cancel any part of the Service or Member's Account after the initial contractual time period has expired. Digital Assets, Inc. will not refund any remaining portion of Member's pre-paid fees when Member cancels any part of the Service or Member's Account and Member may be charged a cancellation fee.
Member agrees to pay Member's Account balance on time. Member also agrees to pay any taxes, including sales or use taxes, resulting from Member's use of the Service. Member is responsible and liable for any fees, including attorney and collection fees, that Digital Assets, Inc. may incur in its efforts to collect any remaining balances due from Member. This Section 3 shall in no way limit any other remedies available to Digital Assets, Inc.. Member also acknowledges and agrees that Member will be billed for and will pay any outstanding balances if Member cancels Member's Account or Member's Account is terminated due to Member's breach of this Agreement. Member must notify Digital Assets, Inc. of any billing problems or discrepancies within sixty (60) days after they first appear on Member's credit card account statement. If Member does not notify Digital Assets, Inc. within sixty (60) days, Member waives any right to dispute such problems or discrepancies.
If Member has registered for a trial of a Service ("Trial Period"), Member will have the entire Trial Period within which to purchase the Service Member is using in order to retain any Member Content (as defined below) that is on the Member Site(s) that Member built during the Trial Period. If Member has not purchased the Service by the end of the Trial Period, all of your Member Content will be deleted. Digital Assets, Inc. is not responsible for any damages to Member in the event Member decide not to purchase the Service and Digital Assets, Inc. deletes your Member Content after the Trial Period expires.
Digital Assets, Inc. may show advertisements on any portion of the Service which it provides to Members free of charge, excluding limited timed free trial accounts. Please see section nine (9) of this Agreement for more information regarding third party advertising content.
4. Digital Assets, Inc. Support Services
Digital Assets, Inc. offers e-mail and phone support services. Members in good standing may submit an unlimited amount of support related questions through Digital Assets, Inc.’s on-line customer support, available on the Digital Assets, Inc. website. In the event that a customer is eligible for telephone support at no additional charge, such support service is limited to technical questions only. Questions related to, but not limited to, design, search engine optimization, marketing planning or similar services shall not be included in the phone support services offered at no additional charge. Phone support incidents that are not specified to be at no additional charge, shall be billed to the customer at the rate of $20.00 per incident.
Telephone Support:
Trial Membership:
Trial members may utilize telephone support services at no additional charge for the duration of their trial period.
Silver or Gold Accounts:
Customers with Silver or Gold accounts, in good standing, may utilize the phone support services at no additional charge for a period of ninety (90) days from the commencement date of their paid service.
Platinum and E-Commerce Accounts:
Customers with Platinum and E-Commerce accounts in good standing, may utilize the phone support service without limitations for the duration of their paid account.
Digital Assets, Inc. Support can be reached at http://www.DigitalAssetsInc.com/ or by dialing 1-303-282-7966 Mon.-Fri. 9am-4pm, Mountain Standard Time.
5. Member Registration/Privacy Policy
In order for Member to participate in the Service, Digital Assets, Inc. will require Member to provide specific information about Member and/or and Member's business. If Member chooses to become a customer, Member agrees to provide true, accurate and complete information and to refrain from impersonating or falsely representing Member's affiliation with any person or entity. Member shall maintain a valid email address at all times. Member shall be responsible for maintaining the confidentiality of Member's Account and password and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such account and password. Member shall be responsible for all actions by such users, including without limitation former employees and former partners, and shall indemnify Digital Assets, Inc. for such actions as set forth in Section 14.
Any information supplied by Member upon registering for the Service and any other information about Member and/or Member's business (collectively, "Member Data") is subject to Digital Assets, Inc.'s Privacy Policy. Digital Assets, Inc. will send Member newsletters and e-mail messages to inform Member of new products, promotions, features and helpful tips for Digital Assets, Inc. services . Digital Assets, Inc. will also use email to inform Member of important policy changes or subscription renewal notices. For more information, Members may review the Digital Assets, Inc. Privacy Policy which is hereby incorporated into this Agreement.
6. Member Account Limitations
Member hereby acknowledges that Digital Assets, Inc. may, from time to time, establish general practices and limits concerning the use of the Service, including without limitation, (a) the maximum number of days that email messages, guest book entries, discussion board postings or other content posted on the Member Web Site will be retained by Digital Assets, Inc., (b) maximum limits on bandwidth usage that will be allotted to Member, (c) maximum limits on storage space, (d) the maximum number of Web sites per Member Account, (e) maximum number of photographs or other data according to the type of Member Account, (f) maximum limits on the number of pages within each Member Web Site, and (g) maximum time limitations for the retention of Member Content following a Trial Period or account cancellation. Digital Assets, Inc. further reserves the right to delete at any time without prior notice duplicate images uploaded for printing. Any of the foregoing limits will be consistent with the Service (including any upgrades) for which Member has registered. Member agrees that Digital Assets, Inc. has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Service. Member further acknowledges and agrees that Digital Assets, Inc. reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. Digital Assets, Inc. reserves the right to charge member for any third party fees associated with the creation of additional sites, including but not limited to domain registration fees.
7. Submitted to Digital Assets, Inc.
The Service includes a number of venues such as Member sites, Discussion Boards and/or other message or communication facilities designed to enable Members to disseminate and exchange thoughts and opinions to and with other users or the public. Although Digital Assets, Inc. firmly believes in the value of free and open dissemination and exchanges; however, it is under no obligation, but does reserve the right, to monitor, pre-screen, or otherwise remove any content stored in its servers. Therefore, Digital Assets, Inc. cannot be responsible for the appropriateness, accuracy, sufficiency, correctness, veracity, completeness, or timeliness of such thoughts and opinions. Member acknowledges that Member should always use caution when posting any personally identifying information about Member or Member's employees on the Service, the Member Site, or any other user sites.
8. Member Conduct
Member's right to use the Service is personal to Member and Member's company and its employees (if applicable). Member, and not Digital Assets, Inc., is entirely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Member Content") posted via the Service. Member, and not Digital Assets, Inc., is also responsible for compliance with all laws, regulations and ordinances connected with all aspects of Member's use of the Service. Member shall not use the Service for any illegal purpose in violation of any local, state, federal or international law. Member must provide all required and appropriate warnings, information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate actions (collectively, "Information and Actions") in connection with Member's use of the Service. If the Service does not provide adequate facility or features for Member to provide such Information and Actions, then Member shall not use the Service.
Digital Assets, Inc. does not control or monitor the Member Content posted via the Service and as such, does not guarantee the accuracy, integrity or quality of such content. Digital Assets, Inc. reserves the right, but is not obligated to review the Member Content posted via the Service and to refuse or remove any such materials in its sole discretion, without notice at any time. Digital Assets, Inc. also reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or remove any information or materials, in whole or in part, from the Member Content in Digital Assets, Inc.'s sole discretion. With respect to the content on the Member Web Site, Member agrees not to:
a. post, upload or otherwise transmit any content which is misleading to others or impersonate any person or entity or falsely state or otherwise misrepresent Member's affiliation with a person or entity to others, including, but not limited to, consumers;
b. post, upload or otherwise transmit any content that is threatening, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another's privacy, hateful, or racially and ethnically objectionable;
c. post, upload or otherwise transmit any content that Member does not have a right to post and transmit under any law or under contractual or fiduciary relationships (such as information learned or disclosed as part of employment relationships or under nondisclosure agreements);
d. post, upload or otherwise transmit any content, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary rights of any party;
e. post, upload or otherwise transmit any materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment and/or attempt to access the accounts of others, or attempt to penetrate security measures of Digital Assets, Inc., its vendors or suppliers or other entities' systems ("hacking"), whether or not the intrusion results in corruption or loss of data;
f. post, upload or otherwise transmit any materials that impose an unreasonable or disproportionately large load on Digital Assets, Inc.'s infrastructure that exceed the limits provided by the Service for which Member registered;
g. post, upload or transmit any unsolicited or unauthorized advertising, promotional materials, "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
h. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
i. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities Exchange Commission, any rules of national or other securities exchange, including without limitation, the Colorado Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
j. forge any headers or other manipulation of identifiers in order to disguise the origin of any content transmitted through the Service; k. promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or
l. sell, distribute, disseminate or link to any sites for marketing, sales, distribution of: firearms, explosives, ammunition, liquor, tobacco products and any other products or services that (i) Member cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via the Member Web Site could cause Digital Assets, Inc. to violate any law, statute or regulation.
m. post or disclose any personal or private information or images about children or any third party without their consent (or a parent's consent in the case of a minor).
Digital Assets, Inc. may terminate Member's account for failure to comply with the above listed rules of Member Conduct. Additionally, Digital Assets, Inc. may request Member to place all or any portion of the Member Content behind password protection if Digital Assets, Inc. determines that such content is inappropriate for the community at large but does not otherwise violate the terms of this Agreement. If Digital Assets, Inc. has requested Member to place Member Content behind password protection or if Member independently determines that the Member Content appropriately belongs behind password protection, Member may not publish the password in such a way that negates the limited-access nature of the password protected site. If Digital Assets, Inc. requests Member to place any Member Content behind password protection and Member fails to do so promptly, Digital Assets, Inc. reserves the right to (a) place such content behind password protection itself, or (b) terminate Member's Account.
9. Discussion Boards
As part of the Service, Digital Assets, Inc. provides its Members with a venue and an opportunity to participate in discussion boards ("Discussion Boards"). Member shall abide by all terms and conditions of Digital Assets, Inc.'s Discussion Board Policy, which is hereby incorporated by reference, in utilizing the Discussion Boards. Please see Digital Assets, Inc.'s Discussion Boards Policy for more information.
10. Third Party Content
For Member's convenience, the Service may contain products, services, content and information from third party providers (which includes advertisers and affiliates) and/or links to their Web sites ("Third Party Content"). Such Third Party Content is not under the control of Digital Assets, Inc. and Digital Assets, Inc. is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. Digital Assets, Inc. is under no obligation, but does reserve the right to pre-screen Third Part Content available on the Service and does not assume any responsibility or liability for the content provided by others. Digital Assets, Inc. is providing such Third Party Content to Member only as a convenience, and the inclusion of such content does not imply endorsement by Digital Assets, Inc. of such content or the affiliate or advertiser. Member may be subject to additional and/or different terms, conditions, and privacy policies when using third party products, services, content, software, or sites. Digital Assets, Inc. does reserve the right to remove content that, in Digital Assets, Inc.'s judgment, does not meet its standards, but Digital Assets, Inc. is not responsible for any failure or delay in removing such material.
Digital Assets, Inc. is not and will not be responsible for (i) the terms and conditions of any transaction between Member and any third party, (ii) any insufficiency of or problems with any such third party's background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that Member has a dispute with any such third party, Member releases Digital Assets, Inc. (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
11. DISCLAIMER OF WARRANTIES.
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT: (A) MEMBER'S USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. DIGITAL ASSETS, INC. AND ITS SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND THE MEMBER SITE(S) "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. (B) DIGITAL ASSETS, INC. AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY MEMBER THROUGH THE SERVICE WILL MEET MEMBER'S EXPECTATIONS. (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, OR MEMBER SITES IS DONE AT MEMBER'S OWN DISCRETION AND RISK, AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL DIGITAL ASSETS, INC. AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF DIGITAL ASSETS, INC. OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVICE, (B) THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, (C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO MEMBER. IN NO EVENT SHALL DIGITAL ASSETS, INC.'S AGGREGATE LIABILITY TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT MEMBER ACTUALLY PAYS TO DIGITAL ASSETS, INC. UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $500.00, WHICHEVER IS LESS. Without limiting the foregoing, neither Digital Assets, Inc. nor its suppliers is responsible for any of Member's data residing on the Service or Digital Assets, Inc.'s suppliers' hardware. Member is responsible for backing-up Member's data and information that may reside on the Service or Digital Assets, Inc.'s suppliers' hardware, whether or not such information is produced through the use of the Service. It is Member's responsibility to take the necessary steps to ensure that Member's primary means of business is maintained (if applicable).
13. Proprietary Rights to Member Content
Digital Assets, Inc. does not claim ownership of the Member Content that Member provides to Digital Assets, Inc. and/or places on the Member Site. However, Member grants Digital Assets, Inc. a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Member Content on and through the Service and in Digital Assets, Inc.'s promotional or advertising materials (only for the limited purpose of promoting the Service), and (ii) sublicense to third parties such Member Content to the extent necessary for the creation and maintenance of, in part or in whole, such Web sites. No compensation will be paid or due Member with respect to Digital Assets, Inc.'s or its sublicensee's use of the materials as licensed above. By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through any Member Site, Member warrants and represents that Member owns or otherwise controls the rights necessary to do so and to grant Digital Assets, Inc. the license set forth above, and, pursuant to the terms set forth in Section 14, Member will defend and indemnify Digital Assets, Inc. and its suppliers from any third party claim related to a breach of any of the foregoing representations and warranties.
14. Digital Assets, Inc. Proprietary Rights/Software Licenses
Member acknowledges and hereby agrees that the Service and any software used in connection with the Service (the "Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Member further acknowledges and agrees that content contained in sponsor advertisements or information presented to Member through the Service, advertisers and/or Discussion Boards is protected by applicable copyrights, trademarks, service marks, patents and other proprietary rights and laws.
Digital Assets, Inc. provides Member with a non-exclusive, non-transferable, limited license to use the Software, which Member agrees to use in accordance with this Agreement. Member may not sub-license or charge others to use or access the Software without first obtaining written permission or a written agreement from Digital Assets, Inc.. The Software is owned by Digital Assets, Inc. and/or its suppliers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification, creation of derivative works from or redistribution of the Software is expressly prohibited, and may result in severe civil and criminal penalties. The Software, its structure, sequence and organization and source code are considered trade secrets of Digital Assets, Inc. and its suppliers and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. MEMBER MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
15. Indemnification
Member agrees to indemnify and hold Digital Assets, Inc. and its suppliers, affiliates, partners, subsidiaries and employees (collectively, the "Indemnified Parties") harmless from any and all claims and demands, losses, liability costs and expenses (including, but not limited to, reasonable attorneys' fees), incurred by an Indemnified Party arising out of or related to (i) Member's breach of this Agreement; (ii) any information (including but not limited to Member Content and Member's publicly posted information) submitted, posted, or otherwise provided by Member at the Member Site and/or to Digital Assets, Inc. and/or its affiliates; (iii) any dispute or litigation between an Indemnified Party and a third party caused by Member's actions; and (iv) Member's negligence or violation or alleged violations of any rights of another. These obligations will survive any termination of Member's relationship with Digital Assets, Inc. or Member's use of the Service. To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of Digital Assets, Inc. and/or its suppliers, affiliates, partners, subsidiaries and employees.
16. Copyright and Trademark Notices
All materials of the Service and the Software (as well as the organization and layout of the Service are owned and copyrighted or licensed by Digital Assets, Inc., its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials of the Service, which includes the Digital Assets, Inc. Web sites (and any successor Web sites or additional Web sites or any co-branded Web sites), and/or the Software, is permitted without the written permission of Digital Assets, Inc.. Any rights not expressly granted herein are reserved.
Digital Assets, Inc., digitalassetsinc.com, the Digital Assets, Inc. logo, Digital Assets, Inc. SiteManager, and other Digital Assets, Inc. logos and product and service names are trademarks of Digital Assets, Inc. (the "Digital Assets, Inc. Marks"). Member agrees not to display or use the Digital Assets, Inc. Marks in any manner whatsoever without Digital Assets, Inc.'s prior permission. From time to time Digital Assets, Inc. may offer a limited license to Members to display Digital Assets, Inc. award logos or other symbols of merit on Member Web Sites after Digital Assets, Inc. in its sole discretion confers such distinctions to the applicable Members. However, Digital Assets, Inc. reserves the right to withdraw such logos or symbols and delete them in its sole discretion for any reason.
17. Notification of Claims of Copyright Infringement
Any notifications of claimed copyright infringement should be sent to Digital Assets, Inc.'s Registered Agent. Please see Digital Assets, Inc.'s Copyright Policy at Digital Assets, Inc.'s Copyright Policy for more information.
18. Modification of the Service
Digital Assets, Inc. reserves the right, at its sole discretion, to, at any time, modify, or discontinue the Service, temporarily or permanently, (or any part thereof), including the imposition of limits on certain features and services or restriction of access to parts or all of the Service, with or without notice. Member agrees that Digital Assets, Inc. shall not be liable to Member or to any third party for any modification, suspension or discontinuance of the Service. Member further agrees that Digital Assets, Inc. shall have the right to remove any feature from the Member Site, with or without notice to Member, at any time at Digital Assets, Inc.'s sole discretion, if Digital Assets, Inc. discontinues offering the feature for any reason. If Member does not agree to any such modifications, Member's sole and exclusive remedy is to cancel Member's Account.
19. Termination/Cancellation of Member Account
Either Member or Digital Assets, Inc. may terminate or cancel Member's Account (or any part of the Service) at any time, but Digital Assets, Inc. will not refund any pre-paid fees upon such termination or cancellation.
a. Termination by Member. Member may cancel your Member Account or any part of the Service at any time after initial contractual time period. To cancel your Service, Member must call 1-303-282-7966 from the U.S. or Canada; or, in certain circumstances at Digital Assets, Inc.'s sole discretion, on a case by case basis, by submitting a cancellation form. Member will receive a cancellation confirmation via email after Digital Assets, Inc. processes Member's cancellation request. Digital Assets, Inc. reserves the right to collect fees, surcharges or costs incurred before Member cancels Member's Account in addition to the applicable cancellation fee(s).
Member must provide us with the following information in order for us to process the cancellation:
- The exact name of the Service that Member would like to cancel
- Member's username and password
- Member's email address
- Member's billing information, including the credit card number Member used when purchasing the Service
- Member's reason for canceling the Service
Member understands and agrees that the cancellation of Member's Account is Member's sole right, except during the initial contractual time period, and remedy with respect to any dispute with Digital Assets, Inc.. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this Agreement or Digital Assets, Inc.'s enforcement or application of any such term; (2) any policy or practice of Digital Assets, Inc., including Digital Assets, Inc.'s Privacy Policy and Copyright Policy, or Digital Assets, Inc.'s enforcement or application of these policies; (3) the content available through the Service or any change in content provided through the Service; (4) Members' ability to access or use the Service or Member's Web Site; or (5) the amount or type of fees, surcharges, applicable taxes, billing methods or change to the fees, applicable taxes, surcharges or billing methods, if any.
20. Notice
Statements, notices and other communications to Member may be made by mail, email, postings within Member's account or other reasonable means. Member shall be solely responsible for updating the account's registered email and postal address. Digital Assets, Inc. shall not be responsible for any undelivered notices caused by Member's failure to update the account information. Digital Assets, Inc. may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices generally on the Digital Assets, Inc. Web Site. Member should refer to the Member Support page of the Service for information on how to contact and/or provide notice to Digital Assets, Inc..
21. Arbitration/ Jurisdiction
Member agrees that any dispute or claim arising out of or related to the Service or this Agreement, or the interpretation, making, performance, breach or termination thereof, shall be finally settled by binding arbitration in the City of Littleton, Colorado under the American Arbitration Association Rules by one arbitrator appointed in accordance with said Rules. The proceedings shall be conducted and all evidence shall be offered in the English language. Member agrees that any claim against Digital Assets, Inc. must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be barred forever.
Notwithstanding the above, Digital Assets, Inc. may apply to any court of competent jurisdiction (i) for a temporary restraining order, preliminary injunction or other interim or conservatory relief as necessary, including without limitation for breach of Section 13 (Digital Assets, Inc. Proprietary Rights/Software License) or (ii) to collect fees due and owing from Member pursuant to this Agreement, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator.
This Agreement shall be governed in all respects by the laws of the State of Colorado, U.S.A. Such law shall be applied by the arbitrator to the merits of any dispute or claim. For any non-arbitral action or proceeding arising out of or related to the Service or this Agreement, both parties submit to sole and exclusive jurisdiction and venue in the courts located in City of Littleton, Colorado and further agree that any such action or proceeding shall be brought in a court in The City of Littleton, Colorado.
A printed version of this Agreement shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
22. General
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Digital Assets, Inc.'s failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Member shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without prior written approval of Digital Assets, Inc., and any such attempted assignment shall be void. Digital Assets, Inc. shall have the right to freely assign this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent or notice of Member. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and permitted assigns. This Agreement sets forth the entire understanding and agreement between Digital Assets, Inc. and Member with respect to the subject matter hereof. The section and subsection titles in the Agreement are for convenience only and have no legal or contractual effect. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures.
The Services hereunder are offered by Digital Assets, Inc., located at 2329 W. Main St., Suite 202, Littleton, CO 80120
23. Information for Colorado Residents
Under Colorado Department of Law, Colorado Members are entitled to the following specific consumer rights information: a. Complaints - To file a Consumer Claim, go to http://www.ago.state.co.us/consline/complaint.pdf.
24. Violations
Please report any violations of this Agreement to our Member Violation Report form.
25.Independent Review
MEMBER ACKNOWLEDGES THAT MEMBER HAS READ THIS AGREEMENT AND ALL RELATED SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT MEMBER AGREES TO ALL ITS TERMS AND CONDITIONS. MEMBER HAS INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
Service-Specific Terms: The following terms apply in addition to paragraphs 1-24 if Member has purchased a Service package which includes the particular service described. Digital Assets, Inc. may change service providers or stop providing the following services at any time without notice to Member; and Member shall permit Digital Assets, Inc. to act as its agent with respect to the following services:
26. Internet Domain Names
Digital Assets, Inc. has chosen independent Third Party Domain Name Vendors ("TPDNVs") who are ICANN accredited registrars, to provide domain name registration services. Member hereby authorizes Digital Assets, Inc. if requested, to transfer in or acquire Member's selected domain name from TPDNVs. In order to receive a domain name, Member must agree and remain agreeable through the use of the Domain Name, to the TPDNVs' terms of service which the TPDNVs may change at any time in their sole discretion to the TPDNVs' terms of service. Member understands that Member is creating a separate contractual relationship between Member and the TPDNVs, and that Member, and not Digital Assets, Inc., is responsible for all liability, and obligations in connection with that relationship.
If, after registering one or more domain names that are included with any Digital Assets, Inc. Service package, because of a customer's incorrect registration of a domain name or otherwise, member chooses to delete a previously registered domain name and subsequently register one or more additional different Domain Names, Customer will be charged the resulting Domain Name registration fees.
Member will be listed as the registrant and administrative contact in connection with Member's domain name; however, Digital Assets, Inc. may temporarily list itself as the registrant and administrative contact in the event that it changes to a different TPDNVs until the TPDNVs change is completed. Member hereby authorizes Digital Assets, Inc. to list itself as the billing contact, technical contact and name servers in connection with Member's domain name and to take any actions Digital Assets, Inc. deems appropriate in those capacities. However, upon termination of the Service, Digital Assets, Inc. will immediately cease acting in those capacities including switching registrars. After such time, Digital Assets, Inc. will not be responsible to forward any notices, emails or other correspondence to Member or to take any other actions in connection with Member's domain name. Member will be solely responsible for all ongoing fees, as well as removing Digital Assets, Inc. as the billing, technical contact and name servers in connection with Member's domain name.
27. Email.
Email services are provided by an independent Third Party Email Services Vendor ("TPESV"). Digital Assets, Inc. is not responsible for the actions or inaction of the then current TPESV or the unavailability or malfunction of their network or services. Digital Assets, Inc. is not a party to, and shall not be involved in or responsible for, transactions, agreements, and/or disputes between Member and the TPESV ("TPESV Dispute"). In the event of a TPESV Dispute, Member hereby releases Digital Assets, Inc. (and its officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes. By using email services, Member agrees to the terms and conditions contained in the "Acceptable Use Policy" and "Mass Mailing Policy" provided below:
27.1 Acceptable Use Policy
a. Definitions
i. "User" refers to the person or business entity that has contracted with Digital Assets, Inc. for e-mail services.
ii. "End User" refers to the person, persons, or entity using a specific account (designated by a unique e-mail address) within a domain controlled by User and operated by Digital Assets, Inc..
b. Unsolicited Bulk E-mail
Any User who sends unsolicited advertisements or solicitations, commercial or otherwise, may have its account disabled and be disallowed further service. The User is responsible for ensuring that its End Users use the email services obtained from Digital Assets, Inc. in an appropriate manner. Therefore, the User must take steps to manage the use of the services obtained in such a way that network abuse is minimized. The User must also make contact information publicly available, and must respond in a timely manner to any complaints. Digital Assets, Inc. shall consider any complaints regarding the User's End Users to apply to the User. In extreme cases, Digital Assets, Inc. operations personnel have the option to immediately disable any User account in order to forestall further abuse or damage to e-mail systems. Should this occur, the User shall be notified as soon as possible.
Unsolicited advertisements or solicitations sent from other networks which reference e-mail accounts hosted at Digital Assets, Inc. shall be treated as if they originated from the account referenced, unless there is sufficient reason given for Digital Assets, Inc. operations staff to believe that the message truly originated with some unrelated party. Likewise, postings made to the usenet newsgroups or other online forums which reference e-mail accounts hosted at Digital Assets, Inc., and are deemed to be inappropriate according to the local ethical standards of that forum, may be treated in the same manner as unsolicited bulk e-mail above.
c. Filtering of Incoming E-mail
As owner of the equipment and other resources utilized to provide services, Digital Assets, Inc. has the legal right to block electronic communications from other entities on the Internet. Users should be aware that such blocking or filtering might take place if deemed necessary by designated members of the Digital Assets, Inc. operations staff (or a third party chosen by Digital Assets, Inc. and made known to the User). Whenever possible, the party being blocked shall be made aware of such action before it occurs.
d. Illegal Activities
Email services offered may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or of state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statute. Digital Assets, Inc. and the TPESV reserve the right to cooperate with law enforcement and other legal authorities in investigating claims of illegal activity.
e. Right to Damages
Digital Assets, Inc. and the TPESV consider most instances of unsolicited bulk e-mail to be a theft of services and reserve the right to prosecute originators of same in a court of law. Digital Assets, Inc. and the TPESV reserve the right to collect damages (software, hardware, and man hours) if any harm is done to Digital Assets, Inc. or to the TPESV's network or equipment that requires repair or reconfiguration of any kind. If deemed appropriate by Digital Assets, Inc. and/or the TPESV, User will be billed not less than $500 per individual complaint received by Digital Assets, Inc. staff. In addition, Digital Assets, Inc. and the TPESV reserve the right to collect punitive damages in recompense for any perceived loss of brand reputation.
Nothing contained in this Section 27 shall be construed to limit action Digital Assets, Inc. and/or the TPESV may take or remedies available to Digital Assets, Inc. and the TPESV in any way with respect to any of the described conduct. Digital Assets, Inc. and TPESV reserves the right to take any additional actions Digital Assets, Inc. and/or TPESV considers appropriate with respect to such conduct, including without limitation taking action to recover costs and expenses of identifying offenders and removing them from Digital Assets, Inc. and TPESV 's network or systems, and levying cancellation charges to cover costs in the event of disconnection for the causes outlined in this Agreement. In addition, Digital Assets, Inc. and TPESV reserve at all times all rights and remedies available to Digital Assets, Inc. and TPESV with respect to such conduct at law or in equity. Non-enforcement of any term or condition herein does not constitute consent or waiver, and Digital Assets, Inc. and TPESV reserve the right to enforce such term or condition at its sole discretion.
27.2 Mass Mailing Policy
The following are the guidelines for all mass mailings by User, or a third party contracted on behalf of User to send mass mailings to End Users. f. Policy objectives: The goals of this mass mailing policy include, but are not limited to, the following issues: controlling mailing rates that stress systems; eliminating service degradations; mitigating the thousands of bounce messages in mail queues that delay mail delivery; mitigating invalid return address information; and eliminating mass mailings during peak business hours.
g. Definitions:
. "Opt-in" mailings are those which are to End Users by either Users or their third party partner to any group of End Users. Opt-in means that the End User has signed up for mailings voluntarily. "Opt-in" implies that the mailing is not SPAM (defined below). i. "SPAM" is defined as unsolicited bulk email that includes advertisements or solicitations, commercial or otherwise, regardless of content. Without exception, Digital Assets, Inc. prohibits the practic
e of mass-mailing unwanted e-mail solicitations of any type, regardless of content, and will take action to prevent this practice.
h. Mass Mailing Requirements:
. Mail send rate: Mass mailings will be done at a maximum rate of 10 messages/second.
i. Use of appropriate servers for originating mailings: use of Digital Assets, Inc. or its suppliers' hosted SMTP servers for mass mailings is strictly prohibited.
ii. Delivery of mass mailings: (i.e. mass mailing sent by a domain hosted or not hosted by Digital Assets, Inc. to domains hosted by Digital Assets, Inc.) all mass mailings must be delivered through Digital Assets, Inc. or its suppliers' inbound MX machines. All mass mailings sent through Digital Assets, Inc. or its suppliers' SMTP servers will not be delivered.
iii. Valid "From", "Reply-To", "Return-Path" and "Error-To" headers: If the following values are listed in your mail header please confirm that they are valid addresses and each email address must accept any bounces at the rate they may occur:
"From",
"Reply-To",
"Return-Path"
"Errors-To"
iv. Valid "Abuse contact": Users who send/receive mass mailings must supply Digital Assets, Inc. with an emergency "abuse contact" to contact if there are any problems/complaints associated with the mailing. v. Notifying Digital Assets, Inc. of mass mailing: Digital Assets, Inc. requires 5 days advance notice for all mailings. The following information must be mailed to support@digitalassetsinc.com:
- Customer Name
- Number of recipients
- "From" domain
- "Target" domain
- Mailing Subject
- Mailing Date
- Mailing Start-End Times
- Rate of mailing (maximum of 10 messages per second)
- Valid "From", "Reply-To", "Return-Path" and "Error-To" addresses (please list the values used, if any)
- Copy of the message content
- Method for users to "opt-out" of mailings
. Blocking of the mailing currently causing the problems/complaints. i. Blocking of future mailings until the above requirements are satisfied. (Or until there is an agreement or special dispensation made by the Digital Assets, Inc. Abuse Administrator)
ii. If no "abuse contact" is provided to Digital Assets, Inc., Digital Assets, Inc. reserves the right to block mailings without notifying User as necessary.
iii. Digital Assets, Inc. reserves the right to suspend or terminate accounts for breaches of Digital Assets, Inc.'s Mass Mailing Policy.
28. Standard Clip-Art and Photos
As part of the Service, Digital Assets, Inc. may provide its Members with standard clip-art and photos to incorporate into their Member Web Sites. In using the clip-art and photos, Member may be governed by a separate Image License Agreement with a Third Party Image Vendor ("TPIV"), the supplier of the clip-art and photos, which is incorporated by reference into this Agreement. Member understands that the Image License Agreement is a separate contractual relationship between Member and the TPIV, and that Member, and not Digital Assets, Inc., is responsible for all liability, and obligations in connection with that relationship. Digital Assets, Inc. is not a party to, and shall not be involved in or responsible for, transactions, agreements, and/or disputes between Member and the TPIV ("TPIV Dispute"). In the event of a TPIV Dispute, Member hereby releases Digital Assets, Inc. (and its officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes.
©2008 Digital Assests, Inc.