(C) ACCEPTABLE USE POLICY
(1) RESTRICTIONS ON USE
(a) You agree to use the Service for lawful purposes only. The laws of the State of North Carolina, and the United States of America apply to this Agreement and your use of the Service. In the interest of maintaining a functional, high-class, professional service, we have a few other conditions for users of our Service. While some of these conditions may seem harsh, please understand that they are necessary given the ever-evolving nature of the World Wide Web. Some of our competitors may not require their customers to comply with such conditions, and if any of our existing or potential customers are unwilling or unable to comply with these conditions, we get it, and we respectfully invite them to seek service elsewhere.
(b) The following represents a partial listing of activities that are prohibited when using the Service, any one of which has the potential to result in account or service suspension or closure without prior or further notice. Without limitation and in no particular order, the Service may NOT be used to host, display, post, propagate, upload, download, transmit, transfer, disseminate, distribute, reproduce, sell, link to nor facilitate access to:
- Any Content or website that contains material that, in our judgment, is intended to promote illegal activities, is unlawful, threatening, obscene, abusive, harassing, defamatory, slanderous, libelous, hateful or that violates any section of this Agreement;
- Any Content or website that contains private or confidential information, including, but not limited to, your or any other person's or party's credit card information, social security number or other national identity number, non-public telephone number, address or email address;
- Any Content or website that, in our judgment, is child sexual abuse material (CSAM), child erotica, indecently depicts children, or, that poses any harm or potential harm to any child;
- Any Content or website that contains material that, in our judgment, is pornographic, sexually explicit, obscene or violent in nature;
- Any Content or website that promotes, encourages or engages in terrorism, violence against people, animals, or property;
- Any Content or website that is designed or used to hack or break into remote systems;
- Any Content or website that is setup to function as an open http proxy;
- Any Content or website that is designed or used to commit or facilitate any "phishing" attack;
- Any Content or website that contains any malware, including, but not limited to, software viruses, trojan horses, worms, time bombs or any other computer codes, files or programs designed to interrupt, destroy, impair or limit the functionality of any computer software, hardware, telecommunications equipment or other device or equipment;
- Unsolicited or bulk email (SPAM), including, but not limited to, using the Service's SMTP service or mail script to send out SPAM over our networks or other systems with a message referencing their website. SPAM is defined in paragraph (C)(3)(c). Our definition of SPAM is different than the CAN-SPAM Act, please read it;
- "Snowshoe spamming" (which, generally, is an abusive technique used to send SPAM from a variety of IP addresses in an effort to spread out the SPAM load);
- Any Content or website that is, in our judgment, designed to function as a farming bitcoin, bitorrenting, pirated software website or illegal or unlicensed software or 'warez' website;
- Any Content or website that is, in our judgment, designed to function as a "Tor relay" service or website;
- Any Content or website that contains URL shortener validation software;
- Any Content or website that contains or facilitate access to any material that is prohibited by BlueTone Media;
- Any Content or website that contains content that infringes on any right of any person or party, including, but not limited to a person's or party's right to privacy or intellectual property rights;
- Any Content or website that, in our judgment, is designed or used to exploit, extract or otherwise gather any content or information from any BlueTone Media database, including, but not limited to, incorporating data from any BlueTone Media database into any email or "white-pages" products or services, whether browser-based, based on proprietary client-site applications, web-based, or otherwise;
- Any Content or website that, in our judgment, is designed or used to reverse engineer, hack into, invade or otherwise gain unauthorized access into any of our systems, communications devices or resources, or any other systems, communications devices or resources (including, but not limited to security probing activities or other attempts to evaluate the security integrity of a network or host system without permission);
- Any Content or website that, in our judgment, is designed for, used to, operated as, or for purposes of topsites; IRC scripts/bots; IRCD (irc servers); proxy scripts/anonymizers; image hosting scripts (similar to Photobucket or Tinypic); AutoSurf/PTC/PTS/PPC sites; IP scanners; bruteforce programs/scripts/applications; mail bombers/spam scripts; banner-ad services (commercial banner ad rotation); file dump/Mirror scripts (similar to rapidshare); commercial audio streaming (more than one or two streams); escrow/bank debentures or bank debenture trading programs; high-yield interest programs (HYIP) or related sites; investment sites (e.g. FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme); sale of any controlled substance without prior proof of appropriate permits; prime banks programs; lottery/gambling sites; MUDs/RPGs/PBBGs; hacker focused sites/archives/programs; fraudulent sites (including, but not limited to sites listed at aa419.org & escrow-fraud.com); push button mail scripts; broadcast or streaming of live sporting events (e.g. UFC, NASCAR, FIFA, NFL, MLB, NBA, WWE, WWF, etc); "tell a friend scripts"; anonymous or bulk SMS gateways; websites advertised via SPAM ("Spamvertised"); organization, entities or websites listed in the ROKSO database; PayDay loan sites (including any site related to PayDay loans, PayDay loan affiliate programs, etc); or mailer pro.
(a) If you don't keep your password safe, you might just get hacked. Don't say we didn't warn you. Notwithstanding any of the terms of this Agreement, you are required to and solely responsible for maintaining the confidentiality and security of the passwords used to access the (BTM) Account, the Service and the Peripherals. Any and all activity that occurs under your username and password will be considered done by you and you bear sole responsibility for that activity. BlueTone Media shall not be liable for any loss or damage arising from or otherwise related to your failure to maintain control over access to your password or username, the (BTM) Account, the Service or the Peripherals, whether due to your own negligence or for any other reason. As a rule-of-thumb, it's best that you change all of your passwords periodically and at any time you think that the (BTM) Account, the Service, any of the Peripherals or any of your other usernames or passwords have become compromised.
(b) Passwords like "password1"and "love4god" are too common and are pretty easy to figure out. You are required to and solely responsible for employing industry standard best security practices, such as using secure passwords. If you use an unsecure password, the (BTM) Account, the Service and/or the Peripherals are likely to be hacked or otherwise compromised, and you will be solely liable in any such case. Audits may be done to check for weak passwords. However, in no event should you rely on the performance of any possible audit by BlueTone Media. If an audit is performed, and it is determined that your password is weak, your (BTM) Account may be suspended or you may be given time to update your password to a more secure password.
(3) ADDITIONAL USAGE RESTRICTIONS
(a) Any Content that, in our judgment, is questionable or that is found to breach any section of this Agreement, or any law to which BlueTone Media is subject, to any degree, may be removed from our servers (or otherwise disabled), in our sole discretion, with or without notice and without obligation. The (BTM) Account may also be suspended or closed in any such case.
(b) You agree to use the Service in a manner that does not interfere with or otherwise disrupt service to other BlueTone Media customers nor any of our systems. BlueTone Media reserves the right to suspend or close the (BTM) Account, without prior notice, if, in our judgment, such interference or disruption is determined by BlueTone Media to exist. Some examples of such interference or disruption include, but are not limited to, some of the items listed in Section (C)(1)(b) and any Customer action that has caused BlueTone Media mail servers or any of our IP ranges to be placed on any "black hole" list or any other mail filtering software systems used by companies on the internet.
(c) For our purposes, simply put, SPAM includes, but is not limited to, the sending of unsolicited bulk email, often in abundance. To be clear, we don't allow spamming on any Service on our systems. To that end, please be advised that the following limits apply to the number of emails that can be sent through any BTM email service: 50 emails per minute/250 emails per hour. An excess of these limits is a breach of this Agreement and the (BTM) Account is subject to suspension or closure, without prior notice.
(d) BlueTone Media does not permit excessive hosting service striping ("excessive striping"). For our purposes, excessive striping describes the condition where a customer attempts to use two or more Service, stored with duplicate Content, in order to collect an excessive allocation of overall bandwidth, disk space, GPUs, or other resources for the purpose of avoiding overage fees on a single service plan. An excessive striping condition may also be achieved by closing Service before their resource limits are reached then opening a new Service with nearly identical Content to use its bundled resources. Content and resource striping is generally permitted only on load-balancer enabled products and products which feature consolidated bandwidth billing. Any other form of content striping will be considered excessive and may result in a service suspension or closure of the (BTM) Account, without prior notice.
(e) You are not permitted to knowingly allow any other website or hosting server to link to Content stored on BlueTone Media's systems. At least 75% of any Content stored on BlueTone Media's systems must have associated HTML, PHP or similar files at the Service linking to the Content stored on that Service.
(f) BlueTone Media will remain the sole owner of all IP network addresses within BlueTone Media's network. You are not permitted to modify any TCP/IP configuration that will conflict with, or otherwise disrupt network service, by using configurations not allocated to you by BlueTone Media. We will use our best efforts to maintain permanency of any allocated IP address, however BlueTone Media reserves the right to change your underlying IP network address for any reason (including, but not limited to, for upgrades, security provisioning, or other network migration service), or for no reason at all, without notice. Any request for allocation of additional IP address(es) may be subject to justification. Justification requirements are subject to change. We reserve the right to reject any request for an additional IP address(es) based on insufficient justification or current IP address utilization.
(g) If we detect repeated failed login attempts, we may, without obligation of any kind, ban network access from the source of those failed attempts, and you'll have to contact us to fix it.
(h) Parallels® Plesk Panel and cPanel®. Your use of Plesk and cPanel requires acceptance of Plesk's End User License Agreement here, and cPanel's End User License Agreement here, which are hereby incorporated by reference.
(i) Amazon Web Services Customer License Terms. Your use of the AWS services is subject to the AWS Customer License Terms, a separate agreement between you and Amazon Web Services, Inc., a current version of which is located here.
(j) Website Projects & Marketing include only those services specified on the associated statement of work (“SOW”). Any change requests that exceed the Services set forth in any Website or Marketing SOW will be assessed and charged separately.
(k) Customer must, within 30 days of any Website Project completion, notify BlueTone Media if there are any issues with the delivered project. BlueTone Media is not responsible for and will not provide assistance with any issue(s) that arise beyond 30 days of any project.
(l) Customer must ensure BlueTone Media has access to necessary computing platforms, documentation and personnel (i.e., end users and technical representatives).
(m) Within ten (10) business days of Customer’s termination of their BlueTone Media account, BlueTone Media will transfer ownership of Customer’s Amazon Web Services (“AWS”) account back to Customer, if applicable. BlueTone Media will remove all non-customer AWS Identity Access Management (IAM) accounts, groups, roles, and federation prior to transfer of account ownership. AWS root account credential transfer will occur via secure, encrypted data transfer.
(1) GENERAL BILLING
(a) We offer three billing term options (each a "Billing Term"): Monthly prepaid, 1-year prepaid and multi-year prepaid. If you opt for annual billing terms, generally, we will bill you the base fee for the Service once per year. You may request to change the billing term for a hosting Service from annual to monthly (and vice versa) by sending us a Support or Billing Request. Your request must include: (i) the desired new Billing Term; (ii) the Service to be affected by the billing term change; (iii) the desired effective date of the change; and (iv) your acknowledgement that there may be a change in the renewal fees due for the hosting Service as a result of the change.
(b) All fees are due in advance of the applicable term. The day you purchase a Service serves as that Service's official anniversary day, ("Billing Date"). As an example, if you purchased a Service on January 1, 2011, depending on the billing term you selected, your Billing Date would either occur on January 1st of each year or on the first day of each month. The Billing Date for a Service cannot be changed. Because a Service's Billing Date is specific to that Service, it is possible for a single (BTM) Account to have Service with different Billing Dates.
(c) BlueTone Media accepts the following methods of payment (each, a "Payment Method"): Visa, MasterCard, American Express, Discover Card, PayPal and wire transfer. The Payment Method you first specify will be set as the Payment Method for the (BTM) Account.
(d) You are responsible for ensuring that the Payment Method on file is up-to-date at all times and that the (BTM) Account balance is kept current. If the Payment Method for the (BTM) Account is credit or debit card, BlueTone Media and/or our payment processor may store the credit or debit card in a database for future renewals. We may automatically attempt to collect payment from such Payment Method, without notice, when a balance comes due.
(e) If the Payment Method for the (BTM) Account is wire transfer or PayPal, you must manually send payment to BlueTone Media prior to any payment becoming due. Due to the manual nature of wire transfers and PayPal, payment must be sent well in advance of the Billing Date to avoid an interruption or loss of Service. BlueTone Media is not liable to you or any third party as a result of any such disruption.
(f) If payment is not readily available on the Payment Method on file (i.e., our attempt to collect payment from the credit or debit card is declined by the financial institution), in our sole discretion, we may continue to attempt to obtain payment from your Payment Method without further notice. If, during our attempts, any of the Services in the (BTM) Account lapses into a past due status as a result of our inability to collect payment from your Payment Method, the (BTM) Account may be suspended or closed for nonpayment. In no event shall BlueTone Media be held liable for any action we may take against you (such as suspending or closing your (BTM) Account and deleting your Content), as a result of our inability to collect payment from your Payment Method. Any Communications we may send you concerning our inability to collect payment from your Payment Method are sent as a courtesy only.
(g) The (BTM) Account is considered past due if BlueTone Media does not receive payment within 30 days of the Billing Date of any Service (Net30 Billing Terms). The (BTM) Account may be suspended, without notice, if the (BTM) Account remains past due beyond 10 days from the Due Date. To reinstate the (BTM) Account, full payment of any balance must be received by BlueTone Media. If full payment of the past due balance is not received within 10 days of any Billing Date, the (BTM) Account may be closed for nonpayment, without further notice.
(h) Billing statements become available on a Service's Billing Date. There are two ways to retrieve the (BTM) Account's billing statements: (i) via email, or (ii) via postal mail. BlueTone Media may email a copy of the billing statement to at least the Account Owner. To request that we deliver your billing statement via postal mail, please send us a Support or Billing Request.
(i) In the event a billing dispute arises, either brought by you or by BlueTone Media, the dispute must be given in writing to the other party within 30 days of the disputed transaction occurring.
(j) Should we receive a request to remove a Payment Method from the (BTM) Account, from a person or party who is not the Account Owner or an Account Contact, upon receiving sufficient documentation confirming that the person making the request is the cardholder, we may, without prior notice, remove the Payment Method and refund some or all unauthorized charges collected from the Payment Method on behalf of the (BTM) Account. Refunds issued in connection with such a request will result in the (BTM) Account immediately becoming past due and the refunded amounts will be reassessed to the (BTM) Account. To avoid an interruption in service, you must remit payment of the past due balance and any related fees within 72 hours of our notice to you. If you don't, the (BTM) Account will be suspended or closed for nonpayment.
UNLESS OTHERWISE NOTED, BlueTone Media SERVICES AUTOMATICALLY RENEW THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD, EXCEPT FOR DOMAIN NAMES WHICH WILL RENEW FOR THE ORIGINAL SERVICE PERIOD. FOR EXAMPLE, FOR PRODUCTS OTHER THAN DOMAINS, IF YOUR LAST SERVICE PERIOD IS FOR ONE YEAR, YOUR RENEWAL PERIOD WILL BE FOR ONE YEAR. THE DETAILS OF THE AUTOMATIC RENEWAL OPTION VARY FROM SERVICE TO SERVICE. THE ONLY WAY TO DISABLE THIS AUTO-RENEWAL IS TO CANCEL THE SERVICE BY SUBMITTING A SUPPORT OR BILLING REQUEST.
(2) CREDITS AND REFUNDS
(a) Setup fees, domain name registration and renewal fees, domain name redemption fees, handling fees, the cost of service add-ons, overage fees, fees for any of the Premium Service defined herein, and any BlueTone Media assessed penalty fees (e.g. chargeback fees or any other fee assessed to BlueTone Media in connection with collecting payment) are completely NON-REFUNDABLE. In addition, no refund will be issued for any (BTM) Account closed pursuant to Section (F)(2)(a) of this Agreement.
(b) Credit issued to the (BTM) Account ("in-store credit") by BlueTone Media is not redeemable for cash and may not be transferred. Any amount of in-store credit that you do not use will remain on the (BTM) Account for two years or until the Account is closed. The issuance of in-store credit is solely within BlueTone Media's discretion.
(c) BlueTone Media may, in its sole discretion, issue the refund either (i) in the form of an in-store credit, (ii) via PayPal, or (iii) via check. BlueTone Media also has the right, but not the obligation, to offer an in-store credit for customers seeking refunds, even if there are no limitations on refunds imposed by the payment provider, payment processor or individual issuing bank associated with your Payment Method.
(d) If we issue a refund to your bank account, PayPal account, or debit/credit card, it could take as much as a full billing cycle for the refund to show up in your account.
(e) Discount and coupon codes are applicable only to the Service to which they are validly applied. Discount and coupon codes are valid only towards the initial purchase and shall not affect the renewal or recurring price of any Service, unless a recurring discount is specifically referenced in the coupon or promotion and only to the extent set forth in that coupon or promotion. Discounts offered after you have purchased, or agreed to purchase the Service are not applicable. Upon any downgrade, upgrade or closure of the Service to which the discount or coupon code was applied, the discount offered in connection with said discount or coupon code is considered null and void. Discount and coupon codes have no cash value and may not be transferred or used towards later purchases, downgrades, upgrades or modifications to any Service. Discount or coupon code abuse is not permitted and may result in the suspension or closure of the (BTM) Account or retroactive adjustment of related charges. BlueTone Media reserves the right to discontinue any discount code or promotion at any time, without notice.
(f) No credits or refunds will be issued for non-usage of the Service or cancellation of month-to-month Service after the Billing Date.
(g) A prorated credit may be issued for annually billed Service upon closure of the Service by you. Annually billed Service purchased with a two-month discount, will be issued a prorated credit on the basis of 10-months, not 12-months. That discount will be removed if the Service is closed before completion of the Term.
(a) You agree to pay all prices and fees due for Services purchased or obtained at this Website at the time you order the Services. We expressly reserve the right to change our fees and prices at any time. Further, we reserve the right to adjust the amount of resources given to plans at any time. In the event of any price, fee or allocated resource change, notice shall be posted online at this Website and effective immediately without need for further notice to you. If you have purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal.
(b) You agree to pay, in full, the amount of any recurring fee(s) or non-recurring, one-time setup fee(s) listed in the Service description for each service or product prior to the Service provisioning, equipment acquisition or installation by BlueTone Media whenever such fee(s) are due.
(c) You agree that BlueTone Media shall not be liable for costs or expenses you may incur, including, but not limited to, overdraft and insufficient funds fees you may incur from any financial institution or other third party as a result of our attempts to collect payment from your Payment Method. You agree to assume complete responsibility for any third party costs or expenses you may incur as a result of our billing actions.
(d) The then-applicable Move a Site fee, per Move a Site order, will be assessed and collected from the Payment Method on file for the (BTM) Account prior to us providing the Move a Site Service. Once we have initiated processing of any Move a Site order, such order may not be cancelled and any fees paid in connection with the order are NON-REFUNDABLE.
(e) In our sole discretion, we may consider expediting the review and processing of a Work Order. In such rare cases that we do, we will assess a NON-REFUNDABLE rush fee in addition to the total cost of the Work Order.
(f) All domain registration renewal fees are NON-REFUNDABLE. The domain registration's renewal fee is due thirty (30) days prior to the domain registration's expiration. For example, if the domain registration expires on 12/01/2013, you must pay the domain registration's renewal fee on 11/01/2013 to avoid losing ownership of the domain.
(g) If BlueTone Media is the Registration Service Provider of record for a domain name that has expired, it may be possible for us to recover the expired domain name for you, if you act within the Redemption Grace Period. A NON-REFUNDABLE fee of $120.00 must be paid before we will attempt to recover any expired domain name registration.
(h) You are responsible for paying any fees incurred by BlueTone Media in connection with our efforts to collect payment from you. We will re-assess any related charges to the (BTM) Account and suspend the (BTM) Account until full payment of the outstanding balance has been received. We may also attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate Payment Method on file for the (BTM) Account.
(i) Regardless of the reason why a credit or debit or PayPal payment is retracted by a financial institution, a $25.00 NON-REFUNDABLE chargeback fee will be assessed to the (BTM) Account for each chargeback we receive. This fee is in addition to any monies owing on the (BTM) Account, and any fees assessed by the financial institution. Upon receipt of any chargeback, we will immediately, re-assess the related charges and suspend the (BTM) Account and all Service(s) until such time as you have fully complied with the instructions set forth in our notice to you regarding the chargeback. We may refuse to allow credit or debit, PayPal or automated payment from you in the future. Upon our receipt of any third chargeback, we will immediately, without notice, close the (BTM) Account; we may also attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate Payment Methods on file for the (BTM) Account.
(E) NOTICES AND COMMUNICATIONS
(1) METHOD OF COMMUNICATIONS
You consent to receive electronic communications (email) from BlueTone Media concerning your use of the Service and concerning BlueTone Media product and service offerings ("Communications"). The Communications may be those that BlueTone Media is required to send to you by law concerning the Services ("Required Communications"). The Communications may also be those that BlueTone Media sends to you for other reasons. BlueTone Media may provide these Communications to you by sending an email to the email address you provided in connection with the (BTM) Account or by posting the Communications to our Website. You also consent to receive Communications by telephone or postal mail sent to any postal address or telephone number you provided in connection with the (BTM) Account, though we are not obligated to use these mediums to send Communications to you. You may change the email, postal address or telephone number BlueTone Media has on file for the (BTM) Account through submitting a Support or Billing Request. You may, without payment of any additional fee, withdraw your consent to receive Required Communications via email by sending notice to the BTM Support or Billing Department that identifies your full name, primary domain name, and primary email address or by sending a request to BlueTone Media at:
BlueTone Media, Inc.
Attention: Billing Department
201 N Front Street, Suite 601
Wilmington, NC 28401
Any notice Customer wishes to send BlueTone Media must be in writing via either Support Request or to the Customer Service Address. BlueTone Media is not responsible for and shall not be liable for any late, lost, misdirected, intercepted, unsuccessful or otherwise failed efforts to send any Communications or Required Communications to you or any other person or party.
(2) COMMON COURTESY
(a) To avoid interruption of the Service, and possible closure of the (BTM) Account, you are required to act in accordance with the terms of any of the Communications or Required Communications we may send to you, within the time-frame specified in such communications. If we make three or more attempts to reach you concerning any matter that requires your attention or action, and we do not receive a response from you within 24 hours of any third attempt, we may suspend or close the (BTM) Account without prior notice. Notwithstanding that, we may suspend or close the (BTM) Account if you fail to respond to any Communications or Required Communications sent to you by our Abuse Department, within 48 hours of any such Communications.
(F) TERM AND TERMINATION
(1) YOUR RIGHT TO CLOSE YOUR (BTM) ACCOUNT
You can close your (BTM) Account. As long as the (BTM) Account is open, though, everything in this Agreement applies, and certain terms continue even after the (BTM) Account is closed.
(a) This Agreement shall be effective as long as our records indicate the (BTM) Account is open, regardless of whether or not the Service are being used by you or any other person or party. This Agreement and all Service on the (BTM) Account will automatically renew and you will be charged for additional terms equal to the previous term until and unless the (BTM) Account is closed by you or BlueTone Media in accordance with this Agreement. You may close the (BTM) Account or any of the Service at any time by submitting a Request to Close through a Support or Billing Request. All fees due through the closure date are completely NON-REFUNDABLE. Terms set forth herein that govern the (BTM) Account, payment of fees for the Service, resolution of any disputes between us, and other such terms that are surviving in nature, continue to apply even after you close the (BTM) Account.
(b) With the exception of closure by BlueTone Media pursuant to this Agreement, the Account Owner is the only person authorized to close the (BTM) Account or any of the Service associated with it. Account Contacts or other third parties are not permitted to close the (BTM) Account nor any of the Service associated with it.
(2) OUR RIGHT TO CLOSE YOUR (BTM) ACCOUNT
(a) BlueTone Media reserves the right, in its sole discretion, to close the (BTM) Account, without prior notice, for any one or all of the following: (i) if you or any of your Account Contacts, whether intentional or unintentional, breaches any section of this Agreement, any supplemental rules and guidelines, any of the terms and conditions of the respective service providers, or any rights of BlueTone Media; (ii) if we receive notice that you or your company will be or is subject to insolvency proceedings; (iii) upon our receipt of any third party chargeback associated with any Payment Method tendered as payment on the (BTM) Account; (iv) if we do not receive a written response from you within 48 hours of any notice sent to you by our Abuse Department; (v) if, in our judgment, your use of the Service has the potential to pose any harm to BlueTone Media, any of our affiliates, partners, service providers or customers; (vi) if the (BTM) Account becomes past due and is not paid within twenty days of becoming past due; (vii) if a hacked script or otherwise compromised website is discovered on our systems at the Service in use by you; (viii) if an unusual spike in resource usage is detected by our systems resulting in an account far outstripping the allotted resources; (ix) if you fail to cure any suspension of the (BTM) Account or any individual Service, to our satisfaction, and within the time frame we specify; or (x) if, in our judgment, we have received too many complaints about your Content. In the event of any such closure of the (BTM) Account, you will not be eligible for a refund of any fees and you may be prohibited from reopening the (BTM) Account, opening a new (BTM) Account or accessing any existing (BTM) Account. In other words, pay us on time and don't be stupid or do anything that breaches or otherwise violates any section of this Agreement, and we shouldn't have to close the (BTM) Account. You agree that BlueTone Media shall not be liable, in any way, for any closure pursuant to this section of this Agreement.
(3) EFFECTS OF CLOSURE AND SUSPENSION
(a) Upon any closure of the (BTM) Account: (i) this Agreement and all rights granted under this Agreement shall cease immediately (except those expressly surviving or which by their nature would survive); (ii) all access to the Service and (BTM) Account will cease immediately; (iii) you will be billed for, and we may automatically attempt to collect from your Payment Method, any outstanding amount owed. We recommend that you ensure you have retrieved all Content and made all necessary backups before submitting any Request to Close the (BTM) Account or any of the Service. You agree to hold BlueTone Media harmless from and against any and all claims, losses or damages arising from any closure of the (BTM) Account. Any and all sections in this Agreement which impose obligations continuing in their nature shall survive closure or otherwise continue to remain in full force and effect even after account closure. You are not permitted to access the (BTM) Account or any of the Services formerly associated with the (BTM) Account following any closure.
(b) Upon any suspension of the (BTM) Account, all Service associated with the (BTM) Account will be suspended or otherwise made inaccessible until and unless all issues are addressed and resolved by you, to our satisfaction, and within the time frame we specify. During any suspension of the (BTM) Account or any individual Service, you will not be permitted to: (i) add, upgrade, downgrade or modify any of the Service; (ii) request an emergency restoration; (iii) transfer any Service, including but not limited to domain name registrations; (iv) access any of the websites, email accounts or Content associated with the suspended Service or account. You agree to hold BlueTone Media harmless from and against any and all claims, losses or damages arising from any suspension of the (BTM) Account or the individual Service.
(4) REOPENING A SERVICE OR ACCOUNT
(a) Unfortunately, once closed, most of the Service may not be reopened; you will need to place a new order and have new Service provisioned. The only service that may be reopened is an unexpired domain name registration, if the (BTM) Account is open and in good standing. To reopen an unexpired domain name registration, simply send us a Support Request asking us to reopen the domain name registration.
(b) The Account Owner is the only person authorized to re-open the (BTM) Account. To reopen the (BTM) Account, the Account Owner must telephone our Billing Department (during our Billing Department's normal business hours) and Authenticate. Any unpaid or otherwise outstanding balance must be paid before we will complete any re-opening. Re-opening an account does not mean that we are willing or able to restore your Content.
(G) DOMAIN NAME REGISTRATION SERVICE
(1) GENERAL INFORMATION
(a) You may register through our Website any available .com, .org, .net, .info, .biz, .co or .me domain name ("Accepted TLDs"). BlueTone Media is able to accept transfers for Accepted TLDs only. Any other TLDs ("Non-Accepted TLDs") are not permissible. You may host upon our systems any Accepted TLDs you own or maintain control of. BlueTone Media does not represent or warrant that it has the certifications or authorizations necessary to host Non-Accepted TLDs.
(b) You are responsible for carefully reviewing your order for any domain name before submitting the order on our Website. Once your order for the domain name is submitted, the order is NON-REFUNDABLE. Renewal fees are also NON-REFUNDABLE. New customers may receive a discounted rate for their first domain name registration when activating new Service. If the newly activated Service is later closed (for whatever reason), and you wish to retain the domain name registration only, you will be required to pay the full recurring price for that individual domain name registration.
(c) We offer domain name renewals and domain name registrations through Wild West Domains, LLC. We offer the service of domain name registration renewals and new domain name registrations through Wild West Domains, LLC (a domain name "Registrar"). When you register or transfer a domain name through or into our systems, you are agreeing to be bound by both this Agreement and the Wild West Domain Name Registration Agreement ("Exhibit B"). Exhibit B may be viewed here. The Registrar of record for any domain name you register February 17, 2014 or later will be listed in the Registration Record as Wild West Domains, LLC; BlueTone Media will be listed in the Registration Record as the Registration Service Provider.
(d) The Uniform Domain-Name Dispute-Resolution Policy ("UDRP") rules govern all domain name disputes. When you register or transfer a domain name into our systems, you agree to be bound by the terms of the Uniform Domain Name Dispute Resolution Policy (UDRP), which may be viewed here. It is our policy to adhere to any rule issued by ICANN. If we receive notice that a UDRP, World Intellectual Property Organization (WIPO) or US state or federal complaint has been filed against you in reference to your use of the domain name, you may not be permitted to make changes to the domain's Registration Record until we are ordered to permit you to do so, or otherwise receive confirmation that the dispute has been resolved. You acknowledge that if your use of the domain name is challenged by a third party, you will submit, without prejudice, to any rule or order issued by ICANN or any administrative body, such as WIPO.
(e) If we receive a request from a person or party ("the requesting party") claiming to be Registrant of a domain name associated with the (BTM) Account, and if said person seeks to remove or otherwise disassociate the domain name registration or DNS zone file from the (BTM) Account, upon receiving what we consider to be sufficient proof that the requesting party is the domain name's Registrant, we will, with immediate effect and without prior notice, remove or otherwise disassociate the domain name registration and/or DNS zone file from the (BTM) Account. We will promptly provide notice to you following any such action.
(2) DOMAIN TRANSFERS
(a) When you initiate the transfer of any domain name to BlueTone Media, you represent and warrant that you are listed as the Registrant or Administrative contact for the domain name in the WhoIs database. You will be required to pay BlueTone Media the first year's registration fee upon initiating the domain name transfer to BlueTone Media. Domain name transfers to BlueTone Media generally take five to seven business days to complete, unless the request is denied by your current registrar. It is your responsibility to timely address any issue that may arise concerning the transfer of any domain name to BlueTone Media to complete the transfer. Once a domain name transfer to BlueTone Media is complete, and BlueTone Media becomes the new Registration Service Provider of record for the domain name, you will not be able to transfer the domain name to another registrar for at least sixty days, unless in accordance with a decision or rule issued to BlueTone Media by ICANN, the governing body for domain names. By transferring or attempting to transfer any domain name into BlueTone Media systems, you are reaffirming your unconditional acceptance of all of the terms of this Agreement.
(b) For instructions on transferring a domain name from BlueTone Media, please contact our Support or Billing Department. The time frame for completing domain name transfers away from BlueTone Media to another registrar vary depending on a variety of factors. It is your responsibility to timely address any issue that may arise concerning the transfer of any domain name from BlueTone Media to complete the transfer. We reserve the right to deny outright any request to transfer a domain name from BlueTone Media received while the (BTM) Account is past due or otherwise not in good standing.
(3) DOMAIN REGISTRATION MANAGEMENT
(a) When you register a domain name through our Website or transfer a domain name into our systems, by default, domain privacy will be disabled/off and the Account Owner's Registration Data may be used to populate the Registrant, Administrative, Technical and Billing contact fields (the "Registration Record") for the domain name. The default information we use for the Registration Record may not necessarily reflect the desired information and it is your sole responsibility to contact BlueTone Media with the Registration Record information needed whenever necessary. Your willful provision of inaccurate or unreliable information, your failure to keep the domain's Registration Record up-to-date, or any failure to respond to inquiries by us addressed to the email address of the Registrant, Administrative, Billing or Technical contact shall constitute a material breach of this Agreement and be a basis for cancellation of the domain name. If you need to verify or change the domain's Registration Record, submit a Support Request or contact our Billing Department. BlueTone Media is not responsible for lapsed registration due to outdated Registration Record data, payment failure or any other issues. Any reminder notices we may send you for domain name renewals are sent as a courtesy only. It is your responsibility to ensure your domain name registration is current. BlueTone Media is not responsible for your failure to renew a domain name or failure to remind you to renew a domain name.
(b) Domain Privacy
If you wish to privatize or otherwise keep your personal information from appearing in the Registration Record, you may do so by request only at the time you place your order for or transfer the domain name into our systems; otherwise, you will need to submit a Support Request to enable domain privacy later. When domain privacy is enabled, BlueTone Media will use a third party's contact information to populate the Registration Record. As with all DNS changes, changes in domain privacy must propagate. There may be a period when, even after enabling domain privacy, the previous Registration Record is still visible to the public. You must wait until the DNS completes propagation before your changes take effect. Remember, we have an obligation to provide your information should we be legally required to do so, regardless of whether or not you have enabled domain privacy. BlueTone Media Domain Privacy private registration is fulfilled by Wild West Domains, LLC.
(c) You are solely responsible for ensuring that all domain name registration fees are paid when due. If you fail to pay domain name registration fees when due, your domain name registration will expire and be suspended by BlueTone Media and you can and will lose ownership of the domain name if you do not take action to renew it. Once a domain name registration has expired, the domain name (including, but not limited to the website, email and other services associated with the domain name) will be completely inaccessible until and unless renewed or re-registered. Generally, when a domain name registration expires, it goes into a post-expiration grace period commonly known as a "Redemption Grace Period." The Redemption Grace Period lasts for up to thirty days from the date of expiration, and during that time, the status of the domain name registration in the WhoIs database will likely be displayed as "Redemption Period" or "Pending Delete - Restorable." During the Redemption Grace Period only, it is possible for the last known Registrant (as according to the Registrar or Registration Service Provider's records) to re-register the domain name. If you wish to renew an expired domain name registration that is within the Redemption Grace Period and BlueTone Media is the Registration Service Provider of record for that domain name, you must contact us during the Redemption Grace Period, pay a NON-REFUNDABLE fee and complete any other necessary requirements indicated by BlueTone Media at the time of your request to complete the renewal. Please note that, generally, it may take 7-10 business days for the domain registration to be updated once it has been redeemed. Once the Redemption Grace Period lapses, the domain name will enter a 5-day "Pending Delete" phase, and during such time, no one (including BlueTone Media) will be able to renew, re-register, redeem or otherwise gain ownership of the domain name. At that point, there is nothing we can do to help you get your domain name back. Following the "Pending Delete" phase, the domain name will be deleted at the registry and released back into the public pool of available domain names.
(d) Upon any expiration of any domain name registration for which BlueTone Media is the Registration Service Provider of record, BlueTone Media may direct the domain name to an IP address designated by BlueTone Media, which may contain a parked, coming soon or other such page ("Temporary Page") that may include advertisements, promotions, links and other content designated by a third party or BlueTone Media, including, but not limited to, content promoting the Service. 100% of all revenues generated, or other economic or noneconomic benefits received, from any such Temporary Page belong solely to BlueTone Media and a third party designated by BlueTone Media, if any. BlueTone Media reserves the right, in its sole and absolute discretion, to modify or disable the content and/or appearance of any Temporary Page at anytime, for any reason or no reason, and without notice.
(e) Any domain name for which BlueTone Media is the Registration Service Provider of record, and which does not resolve to an active website or otherwise contain an "a record," may resolve to a Temporary Page that may include advertisements, promotions, links and other content designated by a third party or BlueTone Media, including, but not limited to, content promoting the Service. 100% of all revenues generated, or other economic or noneconomic benefits received, from any such Temporary Page belong solely to BlueTone Media and a third party designated by BlueTone Media, if any. BlueTone Media reserves the right, in its sole and absolute discretion, to modify or disable the content and/or appearance of any Temporary Page at anytime, for any reason or no reason, and without notice.
(H) PREMIUM SERVICES
(1) MOVE A SITE
(a) We offer, for a fee, a website migration service ("Move a Site") which is currently available for most WordPress, PHP and HTML powered websites that are migrated to, from or between BlueTone Media hosting Service. Each Move a Site order covers the migration of a single website with its single database (a "Web Application") and is generally, though not always, managed by a dedicated specialist. The amount of time it takes for us to complete the migration is largely dependent on whether you've satisfied your obligations prior to the migration and how much content is being moved and where. Notwithstanding the foregoing, we are unable to make any guarantees regarding the availability, possibility or amount of time required to complete any Move a Site order.
(b) The Move a Site service includes only migration of the Web Application. Exclusions apply. Once BlueTone Media initiates any migration, all fees paid are NON-REFUNDABLE. We reserve the right, in our sole and absolute discretion, to close any Move a Site order, at anytime, for any reason or no reason, without prior notice. Notwithstanding anything to the contrary, in the event we close any Move a Site order, in our sole discretion, we may refund all or a portion of the Move a Site fee. Once an Move a Site order has been closed, for whatever reason, it may not be reopened; a new Move a Site order will need to be placed if the desired service is requested again. Customer must, within fourteen days of any migration, notify BlueTone Media if there are any issues with the migration. BlueTone Media is not responsible for and will not provide assistance with any issues that arise beyond fourteen days of any migration.
(c) After we receive your Move a Site order, we will contact you via a Support Request (generally within two business days) to gather any specific information we'll need from you to migrate your website ("our notice to you"). Some of the information we'll need to migrate your website includes, but is not limited to, login information, information pertaining to the current settings on your website, etc. If we do not receive a response from you within seven days of our notice to you, we will not be able to proceed with your order, and your Move a Site order will be closed.
(d) Move a Site does NOT include assistance with nor migration of any of the things on the following list. Please note that this list is not exhaustive and there may be other things you want help with that we can't do. Without limitation, you bear sole responsibility for addressing the migration and management of all of the following:
- Email accounts (including, but not limited to email data and content);
- SSL certificates;
- Design and formatting changes;
- Updates to the Web Application;
- DNS changes or modifications;
- Domain name registration updates (including, but not limited to unlocking the domain at the Registrar or disabling domain privacy);
- Security audits;
- Any Content that was created or added to Web Application after the time BlueTone Media began migration;
- Any Content not related to the Web Application.
1) For Move a Site migrations to a DV Developer, prior to us beginning the process of migration, you agree that you will perform all of the following tasks, as necessary for your specific setup:
- Setup LAMP; and
- Create a custom MySQL database for the CMS database, other than the root user; and
- Ensure that the proper PHP modules required for the website and plugin functionality are installed; and
- Resolve any server-related issues that arise before, during or after migration, such as user permissions.
2) For Move a Site migrations to a DV Managed, prior to us beginning the migration, you agree that you will perform all of the following, as necessary for your specific setup:
- Install all root level customization that may be required for website functionality (ex. APC, memcache, etc.); and
- Ensure that the proper PHP modules required for the website and plugin functionality are installed; and
- Confirm that the website is compatible with PHP 5.3.10 or higher; and
- Resolve any server-related issues that arise before, during or after installation, such as user permissions.
3) For Move a Site migrations to a (gs) Grid-Service, prior to us beginning the migration, you agree that you will perform all of the following, as necessary for your specific setup:
- Ensure that the proper PHP modules required for the website and plugin functionality are installed; and
- Confirm that the website is compatible with PHP 5.3.10 or higher.
4) For Move a Site migrations between (gs) Grid-Services, prior to us beginning the migration, you agree that you will perform all of the following, as necessary for your specific setup:
- Make a backup of any and all email on the (gs) Grid-Service for the website being moved; and
- Re-create all email addresses for the website on the new server, including configuring new passwords and updating your email users; and
- Lower TTL on the domain being moved (if DNS is hosted externally) and notify us of an ideal time when we can move the zone file until you point DNS; and
- Understand that email will be removed from the (gs) Grid-Service the website is moving from.
(2) ADVANCED SUPPORT ON-DEMAND
(a) We offer, for a fee, tuning service that may include performance analysis, apache performance tuning, MySQL optimization and/or PHP module installation ("Advanced Support On-Demand"). Restrictions apply. Disclaimer of Warranties / Limitation of Liability apply.
(b) The Advanced Support On-Demand service includes only those services specified on the Advanced Support On-Demand order. Exclusions apply. Once BlueTone Media initiates any tuning, all fees paid are NON-REFUNDABLE. We reserve the right, in our sole and absolute discretion, to close any Advanced Support On-Demand order, at any time, for any reason or no reason, without prior notice. Notwithstanding anything to the contrary, in the event we close any Advanced Support On-Demand order, in our sole and absolute discretion, we may refund all or a portion of the Advanced Support On-Demand fee. Once an Advanced Support On-Demand order has been closed, for whatever reason, it may not be reopened; a new Advanced Support On-Demand order will need to be placed if the desired service is requested again. Customers must, within fourteen days of any tuning service, notify BlueTone Media if there are any issues with the tuning. BlueTone Media is not responsible for and will not provide assistance with any issue(s) that arise beyond fourteen days of any tuning.
(3) TRANSFER MARKETING SERVICES
When cancelling marketing services, BlueTone Media does not transfer any account information to outside accounts. This applies to, but is not limited to, Google Ads, Google Analytics, Facebook Ads, LinkedIn Ads.
(4) SUPPORT TIME
BlueTone Media offers one hour of support time each month to websites in our platform or if agreed upon in scope documents for websites outside of our platform. This support time is limited to phone conversations, hosted email support, and minor website updates.
(5) ACCOUNT MANAGEMENT
(a) With your purchase of a new Website, you will have a dedicated account manager ("AM") to help you develop, manage and support your business. You and your AM will mutually agree on a call schedule for 1-1 consulting services, which may include collaboration with BlueTone Media product teams as needed and detailing the scope of Services. The scheduled calls may also include customized assignments or tasks to be completed by you and designed to track progress as part of the Services. We strive toward providing Services that meet your expectations. However, we do not guarantee that your expectations will be met if requests are unreasonable or unable to be completed within the scope of the Services. Our completion of the Services depends upon your participation. We are not responsible for additional fees, time, or expenses incurred because of delays caused by your lack of or untimely response, feedback or approval, including your failure to participate in scheduled 1-1 calls. Restrictions apply.
(6) SSL CERTIFICATES
The SSL Certificates are powered by BlueTone Media and are available for purchase as a stand-alone product or may be included for free with your purchase of other products.
SERVICE UPTIME GUARANTEE
We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month for the Hosting service. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 5% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.
(I) REFERRAL PROGRAM
The BlueTone Media referral program offers you a chance to get free hosting credit for referring customers to BlueTone Media services.
(1) CONTENT MADE AVAILABLE FOR INCLUSION ON THE SERVICE (WEBSITES, NEWSLETTERS)
(a) We're not responsible for any of the Content you, your Account Contacts or your users post on or via the Service; you are. You agree to assume all responsibility for and risk associated with all Content you and your party submit, transmit, email, upload, link to, display, disseminate, facilitate access to or otherwise make available through or for inclusion on the Service, including any reliance on the accuracy, completeness, truthfulness, appropriateness, legality or usefulness of such Content. You warrant and represent that you possesses all legal right to, or have obtained all necessary permissions to use any and all Content you make available, use in connection with or provide to BlueTone Media in connection with your use of the Service, and none of the Content you make available, use in connection with or provide to BlueTone Media in connection with your use of the Service infringes on any right of any person, firm, entity or party. You are solely responsible for protecting your assets as well as your rights to any of the intellectual property you provide to BlueTone Media, and BlueTone Media shall have no responsibility, whatsoever, with regard to it.
(b) You understand and agree that BlueTone Media is solely acting as a common carrier in its capacity of providing the Service hereunder, is not a publisher of any material or information and has no right to edit or censor the material at the Servers in use by Customer (unless pursuant to any local, state or federal law, or any section of this Agreement). BlueTone Media is not responsible nor pre-screens any of Customer's website content. All material submitted for publication through the Service will be considered publicly accessible. BlueTone Media does endorse nor screen in advance material submitted to BlueTone Media for publication via the Service. BlueTone Media's publication of material submitted by Customer does not create any express or implied approval by BlueTone Media of such material, nor does it indicate that such material complies with the terms of this Agreement.
(c) A Mail by BlueTone Media (“email”) account may be deactivated if there is account balance over 30 days past due. Once an email account has been deactivated, incoming emails are bounced back to the sender, and user access to the mailbox will be disabled unless re-activated via a Support Ticket within 13 days. 14 days after email deactivation, any saved data including email, photos, and attachments will be permanently deleted. We will be unable to retrieve any content that may have been stored in the mailbox at that time.
(d) We do not provide backup services. WE REPEAT: WE DO NOT PROVIDE BACKUP SERVICES. We are not responsible for Content residing on or about the Service. In no event shall BlueTone Media be held liable for any loss of any Content. It is your sole responsibility to maintain appropriate backup of your Content. Notwithstanding the foregoing, on some occasions, and in certain circumstances, with absolutely no obligation and only as a courtesy, upon a Customer submitting an emergency restoration request, we may be able to restore some or all of your data that has been deleted as of a certain date and time when we have backed up data for our own purposes. BlueTone Media makes no guarantee that the data you need will be available. An emergency restoration is intended for data recovery of specific files and/or databases, and will NOT restore your server or website to a previous version. We may reject any emergency restoration request, at any time, for any reason or no reason. We may reject any emergency restoration request received during any period when the (BTM) Account is past due, suspended, closed or under investigation for any breach of any section of this Agreement. Backups are as-is and are not designed for litigation purposes.
(e) Any mistakes, accidents, omissions, interruptions, delays, errors or defects in transmission or Service which are caused or contributed to, directly or indirectly, by an act or omission of the Customer or by the use of Customer-provided facilities or equipment, or by the use of facilities or equipment furnished by any other person using Customer's facilities which are connected to BlueTone Media's facilities, shall not result in the imposition of any liability upon BlueTone Media and Customer shall pay to BlueTone Media any reasonable costs, expenses, damages, fees or penalties incurred by BlueTone Media as a result thereof, including costs of local exchange company, labor and materials.
(f) If we receive three or more complaints (of any variety) concerning any Content hosted on or otherwise displayed via your Service, we reserve the right, in our sole discretion, to either close the (BTM) Account or suspend the (BTM) Account and require you to permanently cease hosting any specific website or Content on our systems. If we elect not to close the (BTM) Account, a directive as to remedy will be given in our Communications to you concerning the matter. If you do not adhere to the said directive, the (BTM) Account may be closed without prior or further notice.
(2) DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)
(a) You may not use the Service in any manner that infringes upon any copyright. Such infringement may include, but is not limited to selling counterfeit goods, unauthorized copying of photographs, books, music, videos, or any other copyright protected work. It is our policy to promptly investigate compliant notices of alleged copyright infringement that are provided to us in writing regarding Content hosted on or otherwise displayed via our systems. Our response to such notices may include removing or disabling access to the Content or website claimed to be the subject of infringing activity, without prior notice, and without regard to the complaint's substance or merit (or lack thereof). BlueTone Media reserves the right, in its sole discretion, to close any (BTM) Account for which BlueTone Media receives three or more copyright infringement complaints, without prior notice and without a refund of any fees.
(b) Any person or party who wishes to file a claim of copyright infringement regarding Content hosted on or otherwise displayed via our systems may file notice via either email, fax or postal mail. Any person or party who requires assistance filing a claim of copyright infringement should consult or hire a lawyer or other legal professional for assistance. NOTE: Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including, but not limited to costs and attorney's fees) incurred by the alleged infringer, the copyright holder or its licensee, or the service provider.
To email, send to firstname.lastname@example.org
To fax, send to +1 (206) 339-7159
To send via postal mail, send to:
BlueTone Media, Inc.
Attention: Compliance Officer
201 N Front Street, Suite 601
Wilmington, NC 28401
(c) The law requires very specific language be present in any notice of alleged copyright infringement. As set forth in the DMCA, in order to be effective, a notice of copyright infringement must include all of the following:
- The physical or electronic signature of complaining party;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the content that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the content (i.e. the specific URLs where the allegedly infringing activity is said to be taking place);
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(d) A counter notification is a legal request for BlueTone Media to re-enable or otherwise restore access to the material claimed to be the subject of infringing activity. The law requires very specific language be present in any counter notice. As set forth in the DMCA, in order to be effective, a counter notice must include all of the following:
- The physical or electronic signature of the alleged infringer or an agent authorized to act on behalf of the alleged infringer (such as an attorney);
- Identification of the material that was removed (or to which access was disabled) and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the alleged infringer (or his/her authorized agent) has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; The alleged infringer's (or his/her authorized agent's) name, address, and telephone number, and a statement that the alleged infringer (or his/her authorized agent) consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the alleged infringer's (or his/her authorized agent's) address is outside of the United States, for any judicial district in which the service provider may be found, and that the alleged infringer (or his/her authorized agent) will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
(e) Upon receipt of an infringement counter notice that substantially complies with the counter notification requirements set forth in the DMCA, the DMCA requires us to provide the complaining party with a full copy of the counter notice provided to us by the alleged infringer or his/her authorized agent. The DMCA also requires us to permit the alleged infringer to restore access to the material claimed to be the subject of infringing activity, within no less than ten business days and no more than fourteen business days following our receipt of a compliant counter notice, unless we first receive notice that the complaining party has filed an action seeking a court order to restrain the alleged infringer from engaging in infringing activity. Be advised, regardless of whether or not the complaining party files an action seeking a court order to restrain the alleged infringer from engaging in infringing activity, the complaining party may still maintain the right to seek relief in a court of law. It is our policy to adhere to all orders of the court. Any court order issued in connection with a complaint that has been filed against the alleged infringer with which we are served will, with immediate effect, supersede any allowance we may have made permitting the alleged infringer to re-enable or otherwise restore the access to the material claimed to be the subject of infringing activity. A filing of a copyright infringement counter notice may result in litigation between and among the parties.
(3) TRADEMARK INFRINGEMENT CLAIMS
(a) You may not use the Service in any manner that infringes on the rights of any person or party. Such infringement may include, but is not limited to selling counterfeit goods, unauthorized copying of photographs, logos, designs or other lawfully protected works. It is our policy to promptly investigate compliant notices of alleged trademark infringement that are provided to us in writing regarding Content hosted on or otherwise displayed via our systems. Our response to such notices may include removing or disabling access to the material claimed to be the subject of infringing activity, without prior notice, and without regard to the complaint's substance (or lack thereof). Presently, there is no counter notification process in place for trademark law. If you wish to object to the complaint filed against you, you will need to take matter up with the trademark owner in a court of law. In any case, you hold BlueTone Media completely harmless in all matters concerning our action with respect to any trademark infringement complaint. BlueTone Media reserves the right, in its sole discretion, to close any (BTM) Account for which BlueTone Media receives three or more trademark infringement complaints, without prior notice and without a refund of any fees.
(b) Any person or party who wishes to file a claim of trademark infringement regarding Content hosted on or otherwise displayed via our systems may file notice via either email, fax or postal mail. Any person or party who requires assistance filing a claim of trademark infringement should consult or hire a lawyer or other legal professional for assistance. NOTE: Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including, but not limited to costs and attorney's fees) incurred by the alleged infringer, the trademark owner or its licensee, or the service provider.
To email, send to email@example.com
To fax, send to +1 (206) 339-7159
To send via postal mail, send to:
BlueTone Media, Inc.
Attention: Compliance Officer
201 N Front Street, Suite 601
Wilmington, NC 28401
(c) In order for us to investigate any claim of alleged trademark infringement, the notice of trademark infringement must include, substantially, all of the following:
- The trademark or service mark ("the mark") claimed to be the subject of infringing activity;
- The registration number of the mark;
- The country of origin of the mark;
- The contact information of the owner of the mark, including name, address and telephone number;
- The goods or services associated with the mark;
- A complete description of the manner in which the complaining party believes the mark has been or is being infringed upon;
- The precise location of the allegedly infringing activity, specifically, the URLs;
- A statement, under penalty of perjury, that the complaining party has a good faith belief that use of the mark in the manner complained is not authorized by the owner of the mark, and use of the mark by in the manner complained infringes upon the rights of owner of the mark.
(4) EFFECTS OF OUR ACTIONS
(a) In some cases, when we remove or disable access to material claimed to be the subject of infringing activity or that, in our judgment, breaches any section of this Agreement, that action may cause some elements or areas of your website or the Service to malfunction or become unavailable. In no event shall BlueTone Media be held liable in any case and you are solely responsible for repairing or redressing such an issue.
(b) If we are unable to immediately access Content claimed to be the subject of infringing activity or that, in our judgment, breaches any section of this Agreement, or if our attempt to remove or disable access to said Content or website is unsuccessful we may immediately suspend the website or Service upon which the Content is displayed. In any such case, you will not be permitted to re-enable or otherwise restore access to the website or Service until you have complied with all of the terms set out in our notice to you concerning the issue.
(c) If any Content or website is disabled or removed pursuant to BlueTone Media's obligations as a service provider under the DMCA, or pursuant to any section of this Agreement, re-enabling or otherwise restoring access to that Content or website is prohibited until and unless you are otherwise notified by BlueTone Media, via Support Request. In any event where the Content or website is re-enabled or otherwise restored (whether on the original (BTM) Account or a different (BTM) Account), absent BlueTone Media's express authorization as set forth in this Agreement, the (BTM) Account will be closed with immediate effect and without prior or further notice.
(d) You must immediately remove or disable access to any duplicative or derivative works of any Content or website BlueTone Media may disable pursuant to any section of this Agreement, whether or not such Content has the same title, name or label as the offending Content, is in any other format, form, size or is in or on any other directory or location on our systems. Your failure to do so could subject you to civil liability pursuant to U.S. federal law, and could also result in the suspension or closure of the (BTM) Account.
(5) (BTM) INTELLECTUAL PROPERTY
(a) The BlueTone Media Website, including all text, HTML, scripts, and images are copyright 2002-2020. All rights reserved. Any replication, modification, or copy of any part of this Website without the prior, written consent of BlueTone Media is prohibited. This notice applies to site visitors, customers, non-customers, affiliates, and resellers of BlueTone Media. BlueTone Media is a mark of BlueTone Media, Inc. "BlueTone Media", "(BTM)". All other trademarks are the property of their respective owners. BlueTone Media marks may only be used with the express advance written permission of BlueTone Media and, in any event, may never be used to (i) promote or otherwise market competitive products or services; or (ii) disparage BlueTone Media, its products or services, or in any manner which in our judgment may diminish or otherwise damage the goodwill we've established in our marks. Except as expressly provided, nothing within any of the Service shall be construed as conferring any license under any of BlueTone Media intellectual property rights, whether by estoppel, implication, waiver, or otherwise. Without limiting the generality of the foregoing, you acknowledge and agree that certain content available through and used to operate BlueTone Media and the Service is protected by copyright, trademark, patent, or other proprietary rights of BlueTone Media and its affiliates, licensors and service providers.
(b) Except as expressly provided to the contrary, you agree not to modify, alter, remove or deface any of the trademarks, service marks, or other intellectual property made available by BlueTone Media in connection with the Service. You agree not to use any of the trademarks or service marks or other content accessible through BlueTone Media for any purpose other than the purpose for which such content is made available to customers by BlueTone Media. You may not use any of our marks as domain names.
(c) You understand that BlueTone Media shall exclusively own all rights and interests in the Service, including, without limitation, all of the intellectual property rights therein. The Service is licensed, not sold under this Agreement. This Agreement grants you a temporary, non-exclusive, revocable, royalty-free license to use the Service during the period permitted by BlueTone Media, which is determined at our sole and absolute discretion, and which may be changed at any time, for any reason or no reason and with or without notice. You agree that you will keep the Service free of all security interests, liens, or other encumbrances. You may not sell, lease, license, loan or otherwise transfer or dispose of the Service and you will be responsible for any loss or damage to the Service.
(e) As a BlueTone Media customer, by accepting these Terms of Service, you agree that BlueTone Media can use your individual name and/or your company’s name and/or logo on our website, marketing materials, and other advertisements to indicate that you are or at one point were a BlueTone Media customer. If you are creating a website on behalf of a client or other third party, you represent and warrant that you have permission to grant this authority on behalf of that third party. This provision shall survive termination of this agreement or your customer relationship with BlueTone Media.
(6) RESELLING AND ONLINE STORES
(b) Sales Practices. In the conduct of your business, you shall safeguard and promote the reputation of BlueTone Media's Service and business name, and shall refrain from all conduct which might be harmful to such reputation or to the marketing of your Service. You shall strictly refrain from all deceptive, misleading or unethical business practices. You shall comply with all applicable policies and procedures as well as applicable state and federal rules and regulations. Any violation by you of this paragraph shall constitute a material breach of this Agreement and in addition to all remedies available to us, you shall indemnify and hold harmless us in respect to any fee, fine, penalty, or liability imposed against us arising from any activities by you. The prices you charge for the Service you resell shall be solely determined by you. Likewise, you are solely responsible for collecting from Your Users all charges related to the Service, such as applicable taxes. We shall be able to rely and act based on the information you or Your Users provide to us.
(7) U.S. EXPORT LAWS
This Website, the Service, certain software, related documentation, and technical information made available through BlueTone Media (collectively, "Certain Content") are subject to United States export laws, administrative acts, and regulations (collectively, "U.S. Export Laws"). Users of Certain Content are not permitted to export or re-export, or allow the export or re-export of, the Service in violation of any U.S. Export Laws. By using Certain Content, you represent and warrant that you are not located in, under the control of, or a national or resident of any embargoed country or country on the U.S. Department of Commerce’s Table of Denial Orders; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws. You agree not to export or re-export, or allow the export or re-export of Certain Content directly or indirectly to any countries that are subject to United States export restrictions. Users shall not use the Services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of the Services found at this Site may be downloaded or otherwise exported or re-exported into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List, or any other denied parties lists under U.S. Export Laws. If you access this Site or the Services found at this Site from other countries or jurisdictions, you do so on your own initiative and you are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access this Site or the Services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
(1) DISCLAIMER OF WARRANTIES / LIMITATION OF LIABILITY
(a) The Service is provided "as is" and our exposure to you is limited.
BLUETONE MEDIA SPECIFICALLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NO DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY PROVIDER AND PROVIDER DOES NOT WARRANT THAT THE SERVICE OFFERED OR PROVIDED BY PROVIDER IS FREE OF BUGS, ERRORS, DEFECTS, VIRUSES OR DEFICIENCIES. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF PROVIDER HAS BEEN ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IF PROVIDER'S SERVICE TO CUSTOMER IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, PROVIDER SHALL NOT BE RESPONSIBLE FOR LOSS OF INCOME DUE TO DISRUPTION OF SERVICE, BEYOND FEES PAID BY CUSTOMER TO PROVIDER FOR SERVICE, DURING THE PERIOD OF DISRUPTION OR MALFUNCTION. YOUR SOLE AND EXCLUSIVE REMEDY FOR DEFECTS IN THE SERVICE IS AS SET FORTH IN THIS SECTION OR IN THE SPECIFIC SERVICE LEVEL AGREEMENT, IF ANY, APPLICABLE TO THE SERVICE YOU ARE USING.
BLUETONE MEDIA'S SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BLUETONE MEDIA SHALL NOT BE LIABLE FOR ANY DAMAGES YOU OR ANY OTHER PERSON MAY SUFFER. NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT IN NO EVENT WILL BLUETONE MEDIA BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF BLUETONE MEDIA'S SERVICE) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SERVICE (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF BLUETONE MEDIA'S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF BLUETONE MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES BUT IS NOT LIMITED TO ANY LOSS THAT MAY OCCUR DUE TO ANY LOSS OF THE WEB HOSTING SERVICE, THE USE OF WEB HOSTING SERVICE, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO BlueTone Media'S WEB HOSTING SERVICE SYSTEM, THE NON-DELIVERY OR MISDELIVERY OF DATA BETWEEN YOU AND BLUETONE MEDIA, EVENTS BEYOND BLUETONE MEDIA'S REASONABLE CONTROL, THE NON-RECOGNITION OF BLUETONE MEDIA WEB HOSTING SERVERS, THE PROCESSING OF YOUR APPLICATION, THE PROCESSING OF ANY MODIFICATION TO THE RECORD ASSOCIATED WITH YOUR WEB HOSTING SERVICE, THE FAILURE OF YOU OR YOUR AGENT TO PAY ANY FEES HEREUNDER, THE PROTECTION OR PRIVACY OF ELECTRONIC MAIL OR OTHER INFORMATION TRANSFERRED THROUGH THE INTERNET OR ANY OTHER NETWORK PROVIDER OR SERVICE ITS CUSTOMERS MAY UTILIZE, OR THE APPLICATION OF ANY POLICY SET FORTH HEREIN.
IN NO EVENT SHALL BLUETONE MEDIA'S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO BLUETONE MEDIA FOR THE SERVICE DURING THE PRIOR TWELVE MONTHS, OR $500, WHICHEVER IS LESS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, BLUETONE MEDIA'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
(2) AVAILABILITY OF SERVICE
(a) You understand and agree that interruptions of Service may occur due to scheduled or emergency maintenance, updates and repair by BlueTone Media, or by strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other causes beyond BlueTone Media's control, as defined by standard practices in the industry. From time-to-time, it may become necessary for BlueTone Media to stop, reboot, disable, reconfigure, re-route or otherwise interrupt the Service for indeterminate and unpredictable lengths of time. You agree that under no circumstances will BlueTone Media be held liable for any financial or other damages due to such interruptions. In no event shall BlueTone Media be liable to you or any other person or party for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, loss of income or cost of replacement services. Such failure or delay shall not constitute a default under this Agreement.
(b) BlueTone Media reserves the right to reset the password used to access a Service and (BTM) Account, if, in our judgment, the current password is unsecure or not current. We may also reset the password used to access a Service or (BTM) Account in connection with any security audit required by our data centers or any other third party with whom we contract to provide the Service.
(c) We reserve the right to refuse service. Notwithstanding the foregoing, we reserve the right to refuse access to the Service to anyone, at anytime, for any reason or no reason.
(d) From time to time, it may be necessary for us to update certain software, applications and/or the Service without prior notice. An example of a needed update is an update from one version of PHP to another. The updated version may not be compatible with your Content and/or website(s), and your Content and/or website(s) may cease to function as expected following the update. In most all cases, we are unable to rollback or otherwise reverse the update. You are solely responsible for adjusting your Content and website(s) to and ensuring compatibility with the updated version and you agree that BlueTone Media shall not be liable in any way for any loss or damage you or any other person or party may suffer as a result of our update to certain software, applications and/or the Service.
(a) Customer agrees to defend, indemnify and hold BlueTone Media and its affiliates, directors, officers, agents and employees harmless from and against any and all claims, obligations, losses, damages, costs, liabilities and expenses (including reasonable attorneys' fees and costs) incurred by BlueTone Media arising from or due to any claim, action, dispute or demand made by any third parties (including customers of Customer) that are related to or arising out of your use of the Service or from your placement or transmission of any materials or Content onto BlueTone Media's servers. Such liabilities may include, but are not limited to: (a) false advertising claims against Customer (or customers of Customer), (b) liability claims for products or services sold by Customer (or Customer's customers), (c) infringement or misappropriation of intellectual property rights, (d) violation of rights of publicity or privacy, defamation, libel, slander obscenity, or child sexual abuse material (CSAM), (e) spamming or any other offensive or harassing or illegal conduct (including but not limited to any violation of our acceptable use policy, as set forth in this Agreement), or (f) any other damage arising from your equipment, your business, or your use of the Service.
(b) BlueTone Media agrees to indemnify, defend and hold harmless Customer and its affiliates, directors, officers, agents and employees (collectively, the "Customer Group") from and against any and all claims, obligations, losses, damages, costs, liabilities and expenses (including reasonable attorneys' fees and costs) incurred by Customer Group arising from or due to any claim, action, dispute or demand (or any member thereof) to the extent arising from (i) any personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of BlueTone Media or its employees, agents or subcontractors, or (ii) infringement of any U.S. patent, copyright or other proprietary right resulting from Customer's use of intellectual property solely developed or wholly owned by BlueTone Media and used to provide the Service; provided, however, that, in addition to the foregoing indemnification, BlueTone Media's sole and exclusive liability with respect to this Section (K)(3)(b), and Customer's sole and exclusive remedy with respect to this Section (K)(3)(b), is limited to BlueTone Media making the Service non-infringing or arranging for Customer's continued use of the Service by license or otherwise, but if either of the foregoing options are commercially impracticable for BlueTone Media, in BlueTone Media's sole discretion, upon written notice to Customer, BlueTone Media may cancel the directly affected Service, refund to Customer any prepaid fees for such cancelled Service and, if applicable, adjust Customer's ongoing monthly fees for the continuing Service to account for such cancelled Service. Notwithstanding anything to the contrary in this Section (K)(3)(b), BlueTone Media will have no indemnification obligation to Customer under this Section (K)(3)(b) for any infringement arising from (A) an unauthorized modification of the Service by Customer, (B) Customer's combination of the Service with any intellectual property not developed or owned by BlueTone Media if the Service would have avoided the infringement but for such combination by Customer, or (C) Customer's failure to install updates, patches or other similar items provided by BlueTone Media or the licensor of the intellectual property that is the subject of such a claim.
(4) FORCE MAJEURE
(a) BlueTone Media shall not be liable to Customer or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes including, but not limited to strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other similar occurrences; any law, order, regulation, direction, action or request of the United States government or of any other government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, wars; or lockouts, or work stoppages or other labor difficulties; failures, shortages, breaches or delays.
(L) DISCONTINUED SERVICES
(1) END OF LIFE POLICY BlueTone Media reserves the right to cease offering or providing any of the Services, or any third-party services that our products or services are based or relied upon, at any time, for any or no reason, and without prior notice. Although BlueTone Media makes great effort to maximize the lifespan of all its Services, there are times when a Service we offer will be discontinued or reach its End-of-Life ("EOL"). If that is the case, that product or service will no longer be supported by BlueTone Media, in any way, effective on the EOL date. BlueTone Media shall not be liable to you or any third party for any modification, suspension, or discontinuance of any of the products, and services, or any third-party services that our products or services are based or relied upon.
(2) NOTICE AND MIGRATION
In the event that any Service, or any third-party services that our products or services are based or relied upon, has reached or will reach EOL, it is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, BlueTone Media will either offer a comparable Service for you to migrate to for the remainder of the term of your purchase, a prorated in-store credit, or a prorated refund, to be determined by BlueTone Media in its sole and absolute discretion. BlueTone Media may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
(3) NO LIABILITY
BlueTone Media will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services we may offer or facilitate access to.
(1) THIRD PARTY PROVIDERS
(a) BlueTone Media may subcontract the performance of certain services to third parties, and your use of the third party provided products and services shall be governed by any applicable license agreement, if any, with such third party and the third party's terms and conditions. BlueTone Media makes no representations or warranties, and shall not be liable for, the quality, availability, timeliness, accuracy or completeness (or lack thereof) of the information, products or services provided by any third party provider.
(b) BlueTone Media is not the agent, trustee, representative or fiduciary of you or any third party provider in any transaction. Any transactions with third party providers shall be by and between the visitor and the third party provider. Any and all discounts and special offers of any third party may be subject to additional terms, restrictions and limitations.
(2) SYSTEM STATUS
(a) Without obligation, in an effort to be as transparent as possible, the status of our systems is made available on our Website here. Our system status page is provided for informational purposes only and only provides information regarding known system issues and maintenance which may affect the Service.
(b) BlueTone Media systems may be monitored for all lawful purposes, including, but not limited to: for system management, to facilitate protection against unauthorized access, to check on and verify survivability, operational security, system integrity and security procedures. During monitoring, information and Content may be examined, copied, recorded and used for authorized purposes. Your use of our systems constitutes your unconditional consent to such monitoring.
(3) COMPLIANCE WITH LAW
(a) You agree that you will use the Service offered by BlueTone Media in a manner that is consistent with all applicable U.S. local, state and federal laws and regulations, regardless of whether or not you are a citizen of the United States. Customers found to be using our systems for illegal activities, including but not limited to breaking into remote systems, phishing, credit card fraud, theft, will have their accounts closed with immediate effect, without prior or further notice, and without refund of any fees. You are solely responsible for determining what laws and regulations are applicable to your use of the Service.
(b) It is our policy to cooperate with law enforcement and administrative agencies, but we don't just roll over and give them all of your info. Upon lawful request from a law enforcement or government administrative agency, BlueTone Media may, without notice to you or your consent, provide the information requested by such agency to that agency.
(a) If any federal, state or local governmental entity with taxing authority over the Service imposes a tax, duty or fee directly on the Service provided to you by BlueTone Media under this Agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then BlueTone Media may pass the direct amount of such tax on to you, and you shall promptly pay that tax.
Any party's failure to insist on compliance or enforcement of any section of this Agreement shall not affect its validity or enforceability or constitute a waiver of future enforcement of that section or of any other section of this Agreement.
(6) RELATIONSHIP OF THE PARTIES
The parties intend that an independent contractor relationship will be created by this Agreement, and that no additional partnership, joint venture, employee, employer or other relationship is intended . You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of BlueTone Media, any of BlueTone Media's affiliates or its respective service providers. In addition to the foregoing:
Nothing in this Agreement is intended nor shall be construed to create any obligation of exclusivity between you and BlueTone Media. Nothing in this Agreement is intended nor shall be construed as limiting or otherwise restricting BlueTone Media's right, freedom and/or ability to enter into other, and different, relationships with other persons, firms, entities and parties, and we may, and will, enter into other, and different, relationships with other persons, firms, entities and parties. In addition, neither party undertakes, whether by this Agreement or otherwise, to perform any obligation of the other party, or to assume any responsibility for, without limitation, the other party's actions, business or operations.
(a) This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of this Agreement shall be in the state or federal courts in New Hanover County, North Carolina and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against BlueTone Media, Inc. or any of its partners, employees, subsidiaries, officers, licensors or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
(b) In no event will BlueTone Media mediate any dispute or controversy arising between you and any third party. BlueTone Media is unable to provide any legal advice or assistance. It is not our policy to adjudicate, validate or invalidate the substance, merit (or lack thereof) of any complaint we are served (such as complaints of copyright or trademark infringement, defamation, slander or libel) - such is left to the legal system and courts. Notwithstanding anything to the contrary, we will, without prior notice, remove or disable any Content or website any court of competent jurisdiction has ordered removed or otherwise disabled for whatever any reason.
(c) If you violate any of the terms of this Agreement, any supplemental rules and guidelines, any of the terms of the respective service providers, or any rights of BlueTone Media, we and any other harmed party reserve the right to pursue any and all legal and equitable remedies against you. If you are aware of any violations of this Agreement, please notify us at firstname.lastname@example.org.
You may not assign, resell, sub-license or otherwise transfer or delegate any of your rights or obligations hereunder, in whole or in part, without BlueTone Media's prior written consent, which consent shall be at BlueTone Media's sole discretion and without obligation; any such assignment or transfer shall be null and void. BlueTone Media is free to assign any of its rights or obligations hereunder, in whole or in part, to any third party as part of the sale of all or substantially all of its assets or stock or as part of a merger.
(9) HEADINGS OF NO FORCE OR EFFECT
The headings in this Agreement are just for fun and to help you grasp the concepts. We worked hard on them, but legally all of the titles, headings, subheadings and bolded explanatory phrases used in this Agreement have no effect or bearing on the meaning of any section herein at all. Sad, huh?
(10) ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes and cancels any other agreements, proposals, communications and understandings, whether written or oral, between BlueTone Media and you, other than as explained or incorporated by reference in the preamble of this Agreement.