BLUE TECHNOLOGIES LTD General Terms and Conditions of Service
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BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY BlueTech INC YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THESE TERMS & CONDITIONS SUPERSEDE ALL EARLIER VERSIONS AND REQUIRE MANDATORY ARBITRATION OF DISPUTES. Please read these terms and conditions carefully, as they describe your legal rights and obligations. This agreement shall become effective as of the date of (1) your electronic signature on or acceptance of this Agreement, (2) the activation of your account or (3) your receipt of an e-mail from BlueTech confirming your order, whichever happens first. THIS AGREEMENT IS EFFECTIVE FOR AN INITIAL TERM OF ONE MONTH (OR LONGER IF YOU HAVE A MINIMUM OR EXTENDED TERM CONTRACT) AND IS AUTOMATICALLY RENEWABLE FOR SUCCESSIVE TERMS OF THE SAME LENGTH AS THE INITIAL TERM OR FOR SUCCESSIVE ONE MONTH TERMS, AS MORE FULLY DESCRIBED IN THE TERM AND TERMINATION PROVISIONS CONTAINED IN SECTION 2. EXCEPT AS OTHERWISE PROVIDED HEREIN, EITHER YOU OR BlueTech MAY TERMINATE THIS AGREEMENT (AND YOUR ACCESS TO YOUR ACCOUNT) AT ANY TIME WITH 30 DAYS NOTICE, OR BlueTech MAY TERMINATE THIS AGREEMENT OR SUSPEND YOUR ACCOUNT WITH NO NOTICE FOR A BREACH OF THIS AGREEMENT. ANY AND ALL OUTSTANDING FEES (INCLUDING WITHOUT LIMITATION THOSE THAT MAY BE OWED UNDER A MINIMUM OR EXTENDED TERM PACKAGE) SHALL BE DUE AND PAYABLE UPON TERMINATION, ALL AS MORE FULLY DESCRIBED IN SECTION 2.
1. DEFINITIONS.
For the purposes of this Agreement:
1.1. "BlueTech's Equipment" shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by BlueTech and/or BlueTech’s affiliates, agents, or assigns which provide the BlueTech Services.
1.2. "BlueTech”, "us," "we," "our" and grammatical variants thereof shall collectively refer to BlueTech Inc. , a corporation organized and existing under the laws of the State of Delaware, Austria , located at Arnethgasse 88/1 1160 Wien and its assigns and successors in interest.
1.3. "BlueTech Services" shall mean the products and services provided by BlueTech and/or BlueTech's affiliates, agents, or assigns at any given time, including but not limited to web hosting, e-mail, domain registration, and any associated support services, which services may be changed, amended, and/or otherwise altered at any time in BlueTech's sole discretion.
1.4. "BlueTech Software" shall mean any software provided by BlueTech at any given time, whether downloaded to your computer, provided to you on CD or another form of removable media, or utilized online as part of the BlueTech Services. The BlueTech Software includes the program and any and all copies or portions thereof, whether standing alone or in combination with other programs, as well as the documentation and other materials delivered in connection with the software, if any.
1.5. "Bandwidth" shall refer to the rate of data transmission in bits per second using BlueTech's Equipment.
1.6. "Content" shall mean the downloadable files which are interpreted by a client web browser for display with or without plug-ins.
1.7. "Customer Service" shall refer to communication from us to you dealing with problems or questions relating to services provided by us to you.
1.8. "Designated Agent" shall mean an individual or entity that the Prior Registrant or New Registrant explicitly authorizes to approve a Change of Registrant on its behalf.
1.9. "Fee" shall mean monies and other consideration you are obligated to pay to BlueTech for the right to use the BlueTech Services and Bandwidth subject to the terms and conditions of this Agreement and of the particular BlueTech Services for which you have registered, as outlined on the then-current schedule of fees.
1.10. "Fee Schedule" shall mean the fees for the BlueTech Services as published on the BlueTech website, which may be modified at any time in BlueTech’s sole discretion pursuant to the provisions of 23.1.
1.11. "International Customers" shall mean customers residing in or accessing the BlueTech Services from outside of the Austria .
1.12. "Material Change" means a non-typographical correction. The following will be considered Material Changes:
a) A change to the domain name owner’s name or organization that does not appear to be merely a typographical correction;
b) Any change to the domain name owner’s name or organization that is accompanied by a change of address or phone number; and
c) Any change to the domain name owner’s email address.
1.13. "Laws" shall mean the laws, statutes, and regulations then in effect of the Austria and its various states and dependencies as well as the laws of Your country of residence or the country in which you use or access the BlueTech Services and the laws of any provinces, states or dependencies thereof.
1.14. "Parties" shall collectively refer to BlueTech and you.
1.15. "Payment Account" shall refer to the credit card or Pay Pal account provided by You upon registration to pay for Your Services. BlueTech may add, delete, or modify the methods by which customers can pay for the BlueTech Services at any time without prior notice, in its sole discretion. Payments processed by Pay Pal are subject to Pay Pal's terms and conditions of service, and BlueTech makes no representations or warranties with respect to those services.
1.16. "Suspend" or "Suspension" shall include the disabling of, releasing of, disabling of, and/or placing of a registrar lock on your domain name and the cessation of transmission of data to or from Your Web Site or via Your Services.
1.17. "Technical Support" shall refer to communications from us to you dealing with problems or questions relating to technical matters involving software or services provided by us to you.
1.18. "Web Site Space" shall mean a quantity of computer memory allocation, as outlined in the program description for Your Services, generally located on one or more computer storage devices and measured in units of megabytes (MBs) wherein data comprising Your Web Site is stored and is accessible by BlueTech’s web server equipment.
1.19. "You", "your" and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
1.20. "Your Data" shall mean any data, including but not limited to advertisements, documents, e-mails, images, movies, web pages, or other Content, related to your use of the BlueTech Services and stored on or transmitted by the BlueTech Equipment.
1.21. "Your Web Site" shall mean data transmittable via the Internet by BlueTech which is stored in your Web Site Space.
1.22. "Your Services" shall mean the specific BlueTech Services for which you have contracted, subject to the limitations and specifications of the particular service effective as of the date of contract and to the fees for those BlueTech Services pursuant to the current Fee Schedule.
2. TERM AND TERMINATION.
2.1. Except as otherwise provided in this Agreement, this Agreement shall be for an initial term of one month and shall be automatically renewed each month for additional one month periods unless and until sooner terminated pursuant to the provisions of this Section 2. BlueTech may accept prepayment for services to be provided under this Agreement, but such acceptance shall not modify or extend the term of this Agreement. Notwithstanding anything herein to the contrary, BlueTech offers certain Hosting and other Packages for which the term of this Agreement shall be in excess of one month (the "Extended Term Packages"), at the end of which this Agreement shall automatically renew for additional terms of equal length unless you turn off the auto renew function in your account, in which case this Agreement shall terminate at the end of the then-current term. You will receive notice between 30 and 60 days prior to the end of each term of your Extended Term Package that will alert you that your term is about to renew and will provide you with instructions on how to cancel if you do not wish to renew. These notices will be sent via email at the email account you provide to BlueTech. Any and all service fees for the Extended Term Packages are NON-REFUNDABLE AND ARE DUE AND PAYABLE UPFRONT IN ADVANCE for the entire term thereof. Should you choose to terminate your Extended Term Package prior to the end its term you will not be entitled to a refund. For the purposes of this provision, any modification of the hosting package may, in the discretion of BlueTech, be deemed a termination. Fees paid for an Extended Term Package shall be refunded to you if this Agreement is terminated by BlueTech without cause pursuant to Section 2.2. prior to the end of the term of your Extended Term Package in an amount equal to the service fees for the remainder of the term on a prorated basis, or as otherwise agreed to in writing by BlueTech in its sole discretion. Further notwithstanding anything herein to the contrary, BlueTech offers certain Packages for which the initial term of this Agreement shall be in excess of one month and shall have minimum term requirements (the "Minimum Term Contract Packages"), at the end of which such initial term this Agreement shall renew automatically on a month-to-month basis pursuant to the terms herein. Any and all service fees for the Minimum Term Contract Packages are due and payable for the entire initial term thereof. Should you choose to terminate your Minimum Term Contract Package prior to the end of its term you authorize BlueTech to charge the Payment Account for all such fees and charges for the remainder of such initial term. For the purposes of this Section, any modification of the server package may, in the discretion of BlueTech, be deemed a termination and entitle BlueTech to the Fees owing on the Minimum Term Contract Package.
2.2. Except as otherwise provided herein, you or BlueTech may terminate this Agreement at any time for any reason, with or without cause, upon thirty days' written notice. You may terminate your account via the control panel or by notice to BlueTech as set forth in Section 18.2. Should you terminate via e-mail, you must send the termination notice using the e-mail address which you provided to BlueTech upon registration or subsequent thereto, in order to ensure the authenticity of the cancellation.BlueTech may suspend performance under or terminate this Agreement and cease transmission of data associated with Your Web Site immediately and without notice:
2.2.1. if BlueTech, in its sole discretion, deems that you have breached any part of this Agreement, including, without limitation, any warranty or obligation set forth in Section 8,
2.2.2. if your Payment Account provider refuses payment of fees or charges or you refuse authorization for same, or
2.2.3. if payment for the BlueTech Services is more than fifteen days overdue.
2.3. Your Payment Account provider, directly or through third-party service providers, may provide BlueTech with updated credit card numbers, expiration dates, or other information which may be used to renew services or make payments under this Agreement. Should BlueTech choose, in its sole discretion, to participate in such auto-update programs, you agree that BlueTech may share your Payment Account information with such third-party providers and may update Your Payment Account with information provided through such services. You authorize any and all charges to your Payment Account using such updated information, whether or not you or BlueTech have prior notice of same. BlueTech cannot guarantee that your Payment Account will be updated, and you acknowledge and agree that it is your responsibility to keep your payment information current and up-to-date at all times and that you shall be liable to BlueTech for your failure to do so, including for any charges that BlueTech may incur as a result of your failure to keep your payment information current. BlueTech shall have no liability for declined payments or incomplete or out-of-date Payment Account information.
2.4. After termination, you will no longer have access to your account and Your Data, including but not limited to e-mails, log files, databases, or other data files associated with your account may be deleted. BlueTech accepts no liability for such deleted information or content.
3. DESCRIPTION
Subject to and conditioned upon BlueTech’s retained rights and all other terms and conditions set forth in this Agreement, BlueTech offers the BlueTech Services as soon as practicable after registration for and payment of any and all fees due. You will receive a password, account and instructions upon completion of the registration process. You are responsible for maintaining the confidentiality of both your password and your account and are fully responsible for all activities that occur under your password and your account. You agree to immediately notify BlueTech of any unauthorized uses of the account or any other breaches of security. BlueTech cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will BlueTech be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The BlueTech Services are subject to the following conditions and restrictions:
3.1. Web Hosting Services
3.1.1 BlueTech shall provide to you a non-transferable, revocable, non-sublicensable, non-exclusive and limited license to use the amount of Web Site Space allocated to Your Services for your non-exclusive use for the exclusive purpose of storing Your Web Site data and disseminating said data via the Internet through the use of BlueTech’s Equipment for purposes consistent with this Agreement.
3.1.2 BlueTech, either directly or through its assignee or licensee, shall provide Customer Service relating to Your Web Site consisting of replying to customer questions or complaints regarding services provided by us to you relating to Your Web Site. BlueTech is not obligated to provide any Customer Service except as specified in this Section 3. Any and all requests for additional Customer Service may be refused by BlueTech with or without reason. Any additional Customer Service which BlueTech may subsequently agree to provide to you shall be at BlueTech’s sole discretion and once commenced, may be terminated at any time by BlueTech without notice to you and without any liability to BlueTech. Notwithstanding the foregoing, BlueTech at its sole discretion may at any time alter or cease providing the Customer Service which it has agreed to provide to you relating to Your Web Site pursuant to this Agreement without any liability to BlueTech.
3.1.3 BlueTech, either directly or through its assignee or licensee, shall provide Technical Support relating to Your Web Site. Any and all requests for Technical Support may be refused by BlueTech with or without reason, in its sole discretion. Any Technical Support which BlueTech may subsequently agree to provide to you shall be at BlueTech’s sole discretion and once commenced, may be terminated at any time by BlueTech without notice to you and without any liability to BlueTech.
3.1.4 All use of Web Site Space and provision of services to you by BlueTech shall be subject to all terms and conditions set forth herein. You may not attempt to expand or alter these rights or BlueTech’s services by entering into multiple agreements.
3.1.5 Unless provided otherwise in the specifications for your Services, Bandwidth use, including but not limited to data retrieval from your Web Site, e-mail traffic, and downloads, shall not exceed six gigabytes per month. Your combined mailbox use per account shall not exceed twenty-five gigabytes per month. You are responsible for monitoring your Bandwidth and mailbox use, and agree to check your e-mail and download or delete your e-mail on a regular basis in order to ensure compliance with this paragraph. Should you exceed your mailbox use limits BlueTech may return or reject any and all e-mails sent to you to the originating sender without liability to you. You agree that BlueTech may debit the Payment Account for usage in excess of permitted amounts at the rates set forth in the then-current Fee Schedule.
3.1.6 Some BlueTech Services may not be available to International Customers, and BlueTech reserves the right to alter, amend, or discontinue the provision of some or all of the BlueTech Services to International Customers in a particular market at any time in BlueTech’s sole discretion.
3.1.7 BlueTech may suspend performance under or terminate this Agreement, cease transmission of data associated with your domain name immediately and without notice, permanently remove Your Data from the BlueTech Equipment, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with the relevant Laws if it is informed or otherwise believes, in its sole discretion, that Your Web Site violates the intellectual property rights of any third party or is otherwise the subject of a dispute. As more completely set forth in Sections 6, 7, and 10, you waive any and all claims you may have, now and forever, against BlueTech relating to the content, use, and operation of Your Web Site and agree to indemnify and hold harmless BlueTech from and against any such claims.
3.1.8 You are responsible for backing up Your Data on your own computer. BlueTech does not warrant or otherwise guarantee that it will back up your data or that data which has been backed up can be retrieved, and will not be responsible for any archiving or backup of Your Data. If any of Your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable due to termination or suspension of your account pursuant to this Agreement, BlueTech will have no obligation or liability to you.
3.1.9 All web hosting packages are subject to a maximum limit of 262,144 individual files for Linux hosting and 500,000 files for Windows hosting.
In a web hosting package with 50 gigabytes of web space, the customer can initially have over 20 gigabytes of web space. From a usage of at least 75% of the available web space, it will be increased automatically in increments of 10 gigabytes and free of charge until the usage is again below 75%.
In a web hosting package with 100 gigabytes of web space, the customer can initially have over 50 gigabytes of web space. From a usage of at least 75% of the available web space, it will automatically increase in increments of 20 gigabytes, and free of charge, until the usage is again below 75%.
In a web hosting package with 250 or 500 gigabytes of web space, the customer can initially have over 100 gigabytes of web space. If at least 75% of the available web space is used, it will automatically increase in increments of 50 gigabytes and up until it is below 75% again.
BlueTech reserves the right to move customers to servers which are more suited for that customer's usage, in BlueTech’s sole discretion, and the customer agrees and understands that during any such move some or all of the BlueTech services may be unavailable or inaccessible. Packages with unlimited mail space are initially configured with 50 GB of available mail space per mailbox. In the event that the customer's usage approaches the limits of the available mail space, BlueTech will increase the mail space configuration in increments of 5 gigabyte at no further cost to the customer, but no more than once per day. To get your mail space increased please contact the BlueTech Technical Support.
3.2. Domain Name Registration
3.2.1 Should you choose to register a domain name through BlueTech, BlueTech will register a second level domain name on your behalf, provided such domain name is available for registration. BlueTech acts only as an intermediary between you and the organization providing the domain name, and has no influence over the assignment of domain names. The registration of your domain name is subject to the terms and conditions of those registry terms and conditions, and is also subject to the terms of the Uniform Domain Name Dispute Resolution Policy ("UDRP"). You agree that, if the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions of the UDRP in effect at the time of the dispute. BlueTech assumes no liability in the event the domain name is unavailable or otherwise not assigned to you, and does not warrant or guarantee that assigned domain names do not infringe the rights of third parties, or that you will retain the rights to that domain name for any period of time. Upon payment in full of any and all registration fees, BlueTech shall not own or otherwise legally control any domain name registered on your behalf. You agree that you are responsible for any and all fees and costs related to the registration of your domain name, and you authorize BlueTech to debit the Payment Account for any such fees and costs. You acknowledge and agree that in the event of termination or expiration of a domain name, BlueTech shall be the Designated Agent, commencing from the effective date of termination/expiration. Unless terminated, at the end of each term your domain name shall automatically renew for an additional term and you further authorize BlueTech to debit your Payment Account for the renewal fee associated with such renewal term and any related fees or charges. Should the Payment Account provider fail to honor such renewal fee, BlueTech may, in its sole discretion, release, cancel, or otherwise dispose of or utilize your domain name as it sees fit, with no obligation to you whatsoever. If a domain is terminated, BlueTech may delete the domain registration forty (40) days after effective date of such domain name termination. Additionally, BlueTech may, in its sole discretion, assign the domain name to another party for any and all purposes.
3.2.2. You acknowledge and agree that BlueTech or its agents, assignees or licensees may associate any data of any kind, in BlueTech’s sole discretion, with the Domain Name registered in association with Your Web Site or any URL incorporating said Domain Name until you replace such data with Your Web Site, at such times as Your Web Site is no longer available, and upon termination for any reason, for as long as BlueTech or BlueTech’s agent, assignee or licensee continue to be listed as the hosting entity with the domain name registry used to register such Domain Name. This paragraph shall apply to any and all web pages generated by BlueTech or its affiliates, including but not limited to 404 error pages.
3.2.3. The Customer agrees and accepts that, for reasons of security and/or in accordance with ICANN and other registry policies, BlueTech shall set domain locks under certain circumstances, including but not limited to domain name registrations, domain name transfers, and any Material Changes to domain name owner details. The Customer will nevertheless be able to remove the transfer lock in order to allow a transfer of a domain name which has been applied for by third parties.
3.2.4. You represent and warrant that your domain name does not infringe the copyright, trademark, or any other intellectual property rights of any person or company and that your domain name is otherwise in compliance with the terms of this agreement, in particular the provisions of Section 8.
3.2.5. You shall inform BlueTech of any claim or potential claim against your domain name, including but not limited to the initiation of a dispute under the UDRP, within five days of notification of same. Should you lose your right to use a domain name which is used in connection with the BlueTech Services, whether through expiration of the domain name, judicial decree, administrative decisions of the UDRP or otherwise, you agree to inform BlueTech immediately of the party to whom the domain name is to be transferred and you authorize BlueTech to take any and all action necessary to effect such transfer.
3.2.6. BlueTech will accept the transfer of domain names from other registrars, provided however, that you will be required to pay for an initial year of registration fees upon transfer. Domain names which have been prepaid for a period of more than one year but with fewer than nine years remaining may also be transferred, subject to the payment of an initial year of registration fees. An additional year will be added on to the remaining term of any transferred domain. Domain names with more than nine years remaining on the registration period may not be transferred. Upon the expiration of the one-year extension you will be charged an annual renewal fee for any subsequent renewal period. By requesting the transfer of your domain name you authorize BlueTech to debit your Payment Account for the one-year registration fee and any related fees or charges.
3.2.7. You acknowledge and agree that in the event a Material Change in respect of a domain name owner is required for any reason, any responsibility and liability for such Material Changes shall be borne solely by the Customer and account owner as the Designated Agent. The full ICANN Transfer Policy is available here.
3.2.8. You acknowledge and agree that BlueTech reserves the right to act as Designated Agent (as such term is defined in the BlueTech GT&C) with respect to any Material Change (as such term is defined in the BlueTech GT&C) or update to the domain name owner for any reason, without any liability to the domain name owner. The full ICANN Transfer Policy is available on the ICANN website.
3.2.9. The Private Domain Registration Services offered by BlueTech are subject to the terms and conditions of BlueTech’s Private Registration Service (the "T&C Private Domain Registration"), which are incorporated herein by reference.
3.2.10. In using our Privacy Service, you agree to opt out of the 60-day transfer lock normally applied following any Material Change
3.2.11. You acknowledge and agree that BlueTech may suspend, cancel, transfer or modify your domain name registration at any time, for any reason, at the BlueTech’s sole discretion. Without limiting the foregoing, BlueTech may, in its sole discretion, suspend, cancel, transfer or modify a domain name registration:
1. to correct mistakes made by BlueTech, another registrar, or the applicable registry administrator,
2. to resolve a dispute related to that domain name,
3. within five (5) calendar days of the creation date of that domain name registration,
4. if you breach this Agreement (including any applicable additional rule or policy),
5. if you use a domain name in connection with unlawful activity.
6. if BlueTech believes, in its sole discretion, that the domain name has been registered fraudulently
7. upon receipt of a court order or other notification from a court of competent jurisdiction, an arbitration award, or other legal authority requiring the suspension, cancellation, transfer or modification of your domain name registration.
You further acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to (i) the UDRP, (ii) any ICANN adopted policy, (iii) any registrar (including BlueTech) or registry administrator procedures, or (iv) any other ccTLD registry administrator procedures. As more completely set forth in Sections 6, 7, and 10, you waive any and all claims you may have, now and forever, against BlueTech relating to the suspension, cancellation, transfer or modification of your domain name registration.
3.2.12. You shall have the right to cancel your contract in the event that the initial domain name registration price is greater than the price originally listed by BlueTech. For the purposes of clarity, this termination right is only in relation to the new gTLDs and only under the above circumstances.
3.2.13. You agree, and acknowledge, that some TLDs will have non-uniform renewal registration pricing such that the Fee for a domain name registration renewal may differ from other domain names in the same or other TLDs.
You can review BlueTech’s current renewal fees on the BlueTech website.
3.2.14. By ordering or applying SSL Certificates in connection with our products, You acknowledge and agree to comply with the Symantec Terms and Conditions set forth on the BlueTech website.
3.2.15. In the case of a tariff with unlimited SSL certificates, the customer receives an SSL Wildcard certificate for each domain for which he has a current contract with BlueTech, the SSL Wildcard certificate can be used for all domains administered by BlueTech; if the customer concludes a new contract which includes a domain with BlueTech another SSL Wildcard certificate will automatically be assigned.
3.3. Software
3.3.1. BlueTech may, in its sole discretion, provide you with BlueTech Software in combination with Your Services. Upon payment of all fees due and owing to BlueTech under this Agreement, BlueTech hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the BlueTech Software and all related documentation for your own personal or business use during the term of this Agreement. Any rights not expressly granted herein shall be reserved for BlueTech. Source code or other information pertaining to the logic design of the BlueTech Software is specifically excluded from the license granted hereunder.
3.3.2. Although certain BlueTech Software may be provided free of charge, BlueTech reserves the right to charge for the BlueTech Software or any updates thereto or upgrades therefor at any time.
3.3.3. You recognize that the BlueTech software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the BlueTech Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by BlueTech . You further acknowledge that you have been advised that the BlueTech Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of BlueTech , is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to BlueTech , and that its use and disclosure must be carefully and continuously controlled.
3.3.4. BlueTech shall at all times retain title to all the BlueTech Software and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
3.3.5. Unless provided otherwise in the specifications for Your Services, the BlueTech Software supplied hereunder is for the your personal or business use. You shall not permit any third party to use the BlueTech Software or allow access to the BlueTech Software from sites outside of your home or business premises except as specifically authorized in writing by BlueTech . The BlueTech Software is to be used only for the purposes specified in this Agreement and specifically as restricted in the following three subparagraphs of this Section 3.
3.3.6. While this Agreement is in effect, or while you have custody or possession of any of the Software, you will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the BlueTech Software, whether such BlueTech Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for use in Your Web Site pursuant to this Agreement, nor; (ii) provide or make the BlueTech Software available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement, nor; (iv) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of BlueTech. In order to protect BlueTech’s trade secrets and copyrights in the BlueTech Software, you agree to reproduce and incorporate BlueTech’s trade secrets or copyright notice in any copies, modifications or partial copies.
3.3.7. You agree to notify BlueTech forthwith if you obtain information as to any unauthorized possession, use or disclosure of any BlueTech Software by any person or entity, and further agree to cooperate with BlueTech at BlueTech’s expense, in protecting BlueTech’s proprietary rights.
3.3.8. Unless agreed otherwise in writing by BlueTech, the BlueTech Software may be used only on a single computer or workstation. BlueTech software designed for use on portable workstations may be installed on both a portable and a stationary computer but may not be used on both simultaneously. You may not install the BlueTech Software on a network except to facilitate permissible installation of the BlueTech Software on computers attached to the network. You warrant and guarantee that all users of the software shall be aware of and comply with the terms of this license.
3.3.9. Certain BlueTech Software is provided for online use as part of the BlueTech Services (the "BlueTech Online Software"), and the use of such software may be subject to fees as outlined in the current Fee Schedule in accordance with this Agreement. The BlueTech Online Software is hosted software which runs directly on BlueTech’s servers, and you may not download, install, store or make any copies of the BlueTech Online Software, nor may you sublicense the BlueTech Online Software. You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the BlueTech Online Software or any copies thereof and not to assist any third party in doing so. The BlueTech Online Software is designed to be used through the BlueTech user interface and, as such, may be utilized by any authorized user from any computer or workstation. This license is automatically revoked upon termination of this Agreement. BlueTech reserves the right to suspend the use of, modify or discontinue the BlueTech Online Software for any or all customers at any time without notice. Certain Online Software is also Third Party Software, and is subject to the applicable provisions of 2.3.10. BlueTech may limit the functionality of any such third party Online Software, in its sole discretion.
3.3.10. BlueTech provides its customers with the ability to order certain third-party software (the "Third Party Software"), depending on the hosting package ordered. Except for Third Party Software which is also Online Software, such Third Party Software is delivered to BlueTech Customers by mail and may be ordered via customer's control panel for a period of six months after the commencement of the BlueTech Services. The license conditions governing the use of the Third Party Software may differ from BlueTech’s own software licenses. Customers of BlueTech are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. Some such Third Party Software is provided under license from Microsoft Corporation ("Microsoft Software"), and Customers using Microsoft Software are bound by the T&C Microsoft Software Products, which are incorporated herein by reference. BlueTech does not provide Technical Support for the Third Party Software. THE THIRD PARTY SOFTWARE IS OFFERED "AS-IS." THE PROVISION AND OFFERING OF THIRD PARTY SOFTWARE BY BlueTech DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN BlueTech MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
3.3.11. In the event of termination of this Agreement, or upon any act which shall give rise to BlueTech’s right to terminate, or upon the expiration of the license for BlueTech Software which is subject to a limited-duration license, any and all licenses granted under this Section 3.3 shall terminate automatically, and you will remove, erase or destroy the BlueTech Software and documentation and all copies thereof, wherever located, without demand or notice.
3.3.12. BlueTech may stop providing the Software or any updates thereto, including but not limited to the Online Software or the Third-Party Software, at any time without notice or any further liability to You.
3.3.13. Software for International Customers is available for download only. Certain Software (including Third-Party Software) may not be available to International Customers.
3.3.14. BlueTech cannot guarantee that the domain name or the TLD will be registered at the registry. BlueTech cannot guarantee that the TLD will become available to the general public or be available from BlueTech. The TLD may have special registration Terms & Conditions and/or restrictions that are currently not known. BlueTech cannot guarantee that you will be able to conform to these T&CS and therefore may not be allowed to register the domain name on your behalf because of said Terms & Conditions and/or restrictions. Should such a situation arise, you have the right to cancel your binding pre-registration and will not incur any costs.
Should the domain name not be registered at the registry and the TLD not become available, then you will not incur any costs.
3.4. Premium Services.
3.4.1. BlueTech offers certain Premium Services to use with the BlueTech products and services. By ordering the BlueTech Premium Services, you agree to the terms and conditions set forth in this Section 3.4, in addition to the other terms in this Agreement.
3.4.2. The BlueTech Premium Services can only be used with the BlueTech products and services and only by account owners and persons with authority on the account. There will be no Premium Services provided to end users, unless consent has been provided by the account holder, in writing, to the BlueTech Premium Services Team. Any BlueTech Premium Services Team Member may ask for verification of identity and it shall be at the discretion of the BlueTech Premium Services Team Member whether the individual is, in fact, the account holder or has been otherwise properly authorized by the account holder.
3.4.3. The BlueTech Premium Services are available on request (subject to the availability of a BlueTech Premium Services Team Member). You are charged a fee for the Premium Service ordered. Such fee is in addition to the normal subscription fees for the relevant BlueTech package. The scope of each Premium Service ordered is detailed within the service description at the time of purchase.
3.4.4. The BlueTech Premium Services Team is available Monday – Saturday between 8:00am EST and 5:30om EST (excluding federal holidays). Outside the applicable business hours, a 24-hour-hotline support center can be reached for customers to make appointments for BlueTech Premium Services within the business hours.
3.4.5 Upon booking any Premium Service, you will be required to provide BlueTech with a credit or debit card or another valid payment method to pay for the service. You will be advised at the time of booking what the fee is based on the particular service or services ordered. You will be charged the amount of said fee upon the earlier to occur of (a) fulfilment of the services ordered; or (b) 30 days following the booking of said service(s). The booked service must be used within 30 days of purchase. Service-specific consultation calls with a BlueTech Premium Services Team Member are only available following a purchase of a Premium Service and must take place within 30 days of purchase.
3.4.6. Once booked, there is no refund of the Premium Service. You may cancel the order for Premium Services by e-mail or phone at any time but due to the nature of this customized service and the work involved, you will not receive a refund of the service fee. The 30-day money-back guarantee that is offered for some other BlueTech products is not available for Premium Services. Cancelling the Premium Services has no effect on any other existing BlueTech contracts.
3.4.7. If necessary, you must provide the BlueTech Premium Services Team Member with remote access to your computer or other applicable device. You must provide any technical equipment (e.g. DSL connection, internet connection, and modem) that the BlueTech Premium Services Team Member requires in his or her discretion in order to perform the Premium Services. You may be required to provide access to your BlueTech products or services and you accept that some changes to your products or services may be required in order for the Premium Services to be performed. You must fully cooperate with the BlueTech Premium Services Team.
3.4.8. You may be asked to provide files, materials, and information (“Customer Materials”) for the setup of the BlueTech Premium Services. You shall submit all Customer Materials required in electronic file format by e-mail in a format acceptable to the BlueTech Premium Services Team Member (such as Word, jpeg, gif, etc.). Customer Materials must be of good quality and suitably sized for its intended use. Customer Materials must not be illegal or offensive in nature, and you must be the owner, or have the relevant permission from the copyright holder if using non-open source third party materials. You must retain a current back-up of any such Customer Materials. Any Customer Materials may be deleted by BlueTech after the Premium Service has been performed and will not be returned to you.
3.4.9. You may be required to choose passwords for the Premium Service to be performed. It is your responsibility to update passwords after the Premium Service has been completed.
3.4. Premium Services.
3.4.1. BlueTech offers certain Premium Services to use with the BlueTech products and services. By ordering the BlueTech Premium Services, you agree to the terms and conditions set forth in this Section 3.4, in addition to the other terms in this Agreement.
3.4.2. The BlueTech Premium Services can only be used with the BlueTech products and services and only by account owners and persons with authority on the account. There will be no Premium Services provided to end users, unless consent has been provided by the account holder, in writing, to the BlueTech Premium Services Team. Any BlueTech Premium Services Team Member may ask for verification of identity and it shall be at the discretion of the BlueTech Premium Services Team Member whether the individual is, in fact, the account holder or has been otherwise properly authorized by the account holder.
3.4.3. The BlueTech Premium Services are available on request (subject to the availability of a BlueTech Premium Services Team Member). You are charged a fee for the Premium Service ordered. Such fee is in addition to the normal subscription fees for the relevant BlueTech package. The scope of each Premium Service ordered is detailed within the service description at the time of purchase.
3.4.4. The BlueTech Premium Services Team is available Monday – Saturday between 8:00am EST and 5:30om EST (excluding federal holidays). Outside the applicable business hours, a 24-hour-hotline support center can be reached for customers to make appointments for BlueTech Premium Services within the business hours.
3.4.5 Upon booking any Premium Service, you will be required to provide BlueTech with a credit or debit card or another valid payment method to pay for the service. You will be advised at the time of booking what the fee is based on the particular service or services ordered. You will be charged the amount of said fee upon the earlier to occur of (a) fulfilment of the services ordered; or (b) 30 days following the booking of said service(s). The booked service must be used within 30 days of purchase. Service-specific consultation calls with a BlueTech Premium Services Team Member are only available following a purchase of a Premium Service and must take place within 30 days of purchase.
3.4.6. Once booked, there is no refund of the Premium Service. You may cancel the order for Premium Services by e-mail or phone at any time but due to the nature of this customized service and the work involved, you will not receive a refund of the service fee. The 30-day money-back guarantee that is offered for some other BlueTech products is not available for Premium Services. Cancelling the Premium Services has no effect on any other existing BlueTech contracts.
3.4.7. If necessary, you must provide the BlueTech Premium Services Team Member with remote access to your computer or other applicable device. You must provide any technical equipment (e.g. DSL connection, internet connection, and modem) that the BlueTech Premium Services Team Member requires in his or her discretion in order to perform the Premium Services. You may be required to provide access to your BlueTech products or services and you accept that some changes to your products or services may be required in order for the Premium Services to be performed. You must fully cooperate with the BlueTech Premium Services Team.
3.4.8. You may be asked to provide files, materials, and information (“Customer Materials”) for the setup of the BlueTech Premium Services. You shall submit all Customer Materials required in electronic file format by e-mail in a format acceptable to the BlueTech Premium Services Team Member (such as Word, jpeg, gif, etc.). Customer Materials must be of good quality and suitably sized for its intended use. Customer Materials must not be illegal or offensive in nature, and you must be the owner, or have the relevant permission from the copyright holder if using non-open source third party materials. You must retain a current back-up of any such Customer Materials. Any Customer Materials may be deleted by BlueTech after the Premium Service has been performed and will not be returned to you.
3.4.9. You may be required to choose passwords for the Premium Service to be performed. It is your responsibility to update passwords after the Premium Service has been completed.
4.2. The Fee is due in accordance with the terms of your contract, in advance of the provision of services, not later than the first of the month they are due. In the event that BlueTech determines that the services of a collection agency are necessary or appropriate to collect amounts due under this paragraph, which determination shall be made in BlueTech’s sole and unfettered discretion, any and all collection agency fees and other costs of collection shall be added to any amounts due under this provision.
4.3. All Fees must be paid in Euro in advance of the provision of services. BlueTech will charge the Fees (including without limitation the monthly Fee, Fees for Extended Term Packages, and Fees for Minimum Term Packages), and any additional fees to the Payment Account unless specifically provided otherwise. You also agree that BlueTech may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to Your Services or Your Website, including but not limited to fees for excessive bandwidth use or other surcharges for services in excess of those included within Your Services or Your Web Site. If payment in full is not received by BlueTech from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for Your Services upon demand by BlueTech.
4.4. BlueTech may offer subsequent promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for Your Services. Any such promotions or modifications shall not effect your obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Promotional fees and special offers may not be combined.
4.5. To the extent Your Services are subject to the terms and conditions of BlueTech’s Money Back Guarantee (the "T&C Money Back Guarantee"), they are incorporated herein by reference.
4.6. BlueTech offers a service uptime guarantee for the BlueTech Services, which provides for a credit to You in the event the total availability of BlueTech hosted web pages falls below 99.99% ("Uptime"). If You can demonstrate to BlueTech’s satisfaction, in BlueTech’s sole discretion, that BlueTech has failed to maintain the Uptime, You may contact BlueTech and request a credit for that month proportional to the amount of downtime, to be put towards the purchase of future BlueTech Services. Credits cannot be redeemed for cash, and are exclusive of any applicable taxes. The credit does not apply to service interruptions caused by (i) periodic scheduled maintenance or repairs undertaken by BlueTech from time to time; (ii) downtime caused by You; (iii) outages that do not limit browser access to Your web site (for example, interruptions to your ftp service or e-mail); (iv) suspension of Your account due to legal action taken or threatened against You or Your Services; (v) suspension of Your account due violations of the GT&C, as determined in BlueTech’s sole discretion, including but not limited to excessive use of system resources, non-payment or other billing issues, or identification by the abuse team as fraudulent or otherwise in violation of the GT&C; or (vi) causes beyond the control of BlueTech or that are not reasonably foreseeable by BlueTech.
4.7. You shall pay all costs of collection, including reasonable attorney's fees and costs, in the event any invoice requires collection efforts. All accounts referred to a collection agency shall be subject to an additional fee of 18.95 Euro, which must be paid in full before the account is reactivated.
4.8. International Customers bear the risk of currency fluctuations and any fees or taxes associated with the conversation of foreign currencies into Euro. Certain BlueTech Services will not be available to International Customers until BlueTech is able to receive satisfactory confirmation from such customer's Payment Account provider, in BlueTech’s sole discretion, that the funds will be available for debit from the International Customer's account. Orders from International Customers will not be accepted unless the country provided in the contact information matches that on file for the Payment Account.
4.9. Upon cancellation of this Agreement you will receive a prorated refund of any pre-paid, refundable fees for the remainder of any term. Fees for certain services, including but not limited to domain name registration and maintenance, set up fees, shipping and handling, SSL certificate fees, Website Creator Plus, Website Builder Plus, in2site Live Dialog Plus, DynamicSiteCreator Plus, Additional Virus Scanner, Exchange accounts and fees for the Extended Term Packages, are not refundable except as may be provided otherwise herein or unless provided otherwise by applicable local law. BlueTech may, in its sole discretion, refund other amounts as it deems necessary or advisable.
5. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE INCONSISTENT WITH YOUR WARRANTIES.
Receipt by BlueTech of data for storage in Web Site Space and/or transmission via BlueTech’s Equipment which are inconsistent with your warranties set forth in Section 8 herein shall not constitute an agreement by BlueTech to allow the BlueTech Services or the BlueTech Equipment to be used to disseminate such information or data in whole or in part, by any means, or if once disseminated via the use of BlueTech’s Services or Equipment, to continue to disseminate such data.
6. NO WARRANTIES BY BlueTech.
THE BlueTech SERVICES AND BlueTech SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE BlueTech SERVICES IS AT YOUR SOLE RISK. BlueTech DOES NOT WARRANT THAT THE BlueTech SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES BlueTech MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE BlueTech SERVICES. NO WARRANTY IS MADE BY BlueTech REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND BlueTech HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER, INCLUDING BUT NOT LIMITED TO YOUR SERVICES AND YOUR WEB SITE; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BlueTech DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE BlueTech SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON'S OR ENTITY'S WEB SITE OR WEB PAGE.
7. BlueTech’s LIMITED LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL BlueTech, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE BlueTech SERVICES. SOME COUNTRIES, STATES OR AUSTRIA DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES , BlueTech’s LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, BlueTech DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE BlueTech SERVICES, AND BlueTech WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE BlueTech FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF BlueTech FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO BlueTech IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED 15,000 EURO.
8. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES.
8.1. You agree and warrant that the contact information you have provided to BlueTech is complete and accurate, and you further agree to notify BlueTech within fifteen days of a change to any such contact information. Contact information includes your full legal name, e-mail address, and mailing address and the name, mailing address, telephone number, facsimile number, and e-mail address of the technical and administrative contacts for your domain, if any.
You acknowledge and agree that you shall adopt the role of Designated Agent and you warrant that you either are the registered name holder or are authorized to represent the registered name holder.
8.2. You agree to provide BlueTech notice of any changes in the primary or secondary DNS address of your name servers, to the extent you have installed and are operating those name servers or to the extent your domain name is held by another registrar and points to a website hosted by BlueTech.
8.3. You agree and warrant that your use of the BlueTech Services and BlueTech’s Equipment, and all sales and distributions, by any and all means, of any type(s) of Content including, but not limited to, executable files (such as .EXE), digitized audio/visual files (such as MP3), or archived copies of copyrighted works (such as .ZIP); goods, including, but not limited to, videotapes and CD-ROM products, and any type of services by you, which are advertised and/or promoted by, or are in any other way directly or indirectly associated with your use of the BlueTech Services or BlueTech Equipment, shall at all times comply with all applicable Laws.
8.4. You agree and warrant that you will neither store on nor allow to be transmitted by BlueTech’s Equipment any data or other matter which constitutes, contains, or links to child pornography or which involves depictions of sexuality by someone who is or looks younger than eighteen years of age, regardless of their actual age, or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age, or which could otherwise result from or cause harm to minors.
8.5. You agree and warrant that Your Data shall be solely for business, entertainment and/or educational purposes and that you shall assume the sole responsibility and duty to ensure that all such data, visual materials, advertising and other matter shall be transmitted exclusively to willing adults and only to places in which such materials comply with contemporary community standards.
8.6. You agree and warrant that Your Data shall not violate any Laws concerning obscenity and shall not contain or link to any pornography, or depictions of bestiality, rape, sexual assault, violence, torture or disfigurement, or other content deemed objectionable by BlueTech, in its sole discretion.
8.7. You agree that you shall install and maintain appropriate and effective screening devices and/or procedures on Your Web Site to avoid access to, or communication of, any harmful matter or indecent communications to minors.
8.8. You agree that if, in BlueTech’s sole and exclusive judgment, BlueTech concludes that Your Web Site displays, contains or links to any harmful matter or indecent materials or communications which are available to, or accessible by, minors, or displays or contains any material that consists of child pornography or which could otherwise result in harm to minors; then BlueTech may, without prior notice to you and in BlueTech’s sole and exclusive discretion, either remove and erase the material from Your Web Site, and/or disable public access to the material on Your Web Site, and/or cease hosting Your Web Site, without any liability of any kind to BlueTech from either you or any third party.
8.9. You agree that in the event that BlueTech is informed by any party that your domain name or any material on Your Web Site infringes the copyright of any party, or violates the right of publicity or privacy of any party, or consists of any other claim or violation of intellectual property rights of any kind, then BlueTech may, without prior notice to you and in BlueTech’s sole and exclusive discretion, either remove the material from Your Web Site, and/or disable public access to your domain name or the material on Your Web Site, and/or terminate this Agreement, without any liability of any kind to BlueTech from either you or any third party. As more completely set forth in Sections 6, 7 and 10, you waive any and all claims you may have, now and forever, against BlueTech relating to any action taken in response to the claim that you have infringed the intellectual property rights of a third party, and agree to indemnify and hold harmless BlueTech from and against any such claims.
8.10. You affirmatively represent, agree and warrant that you have and at all times shall have all necessary intellectual property rights, including, but not limited to, all copyrights, trademark and service mark rights and rights of publicity, both in the Austria and throughout the world, to reproduce and disseminate, via the Internet, Your Data or Content which you otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the BlueTech Services or BlueTech’s Equipment, prior to and at all times during the time such materials are promoted, advertised, disseminated or distributed through any direct or indirect use of the BlueTech Services or BlueTech’s Equipment.
BlueTech shall not be liable for any claim of unfair competition, violation of publicity or privacy, infringement of trademark, copyright, or any other intellectual property rights that is the result of your failure to have or obtain the appropriate permission to use Content when using the BlueTech Services, including but not limited to content and images on Your Web Site or used in connection with any web hosting or MyWebsite services. It is your responsibility to ensure that any images and other Content are used in full compliance with any third party license, these Terms and Conditions, and any applicable laws.
8.11. You agree and warrant that Your Data shall not constitute or contain or link to material which is libelous, slanderous, defamatory, or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights. You agree not to collect the personally identifiable data of any person without that person's consent, records of which shall be maintained throughout the term of this Agreement and for three years afterward. If you collect this data through Your Web Site you shall do so only pursuant to a posted privacy policy disclosing any and all uses of such identifiable data and in compliance with applicable law.
8.12. You agree and warrant that Your Data shall not contain or link to any material which is harmful, violent, threatening, abusive or hateful.
8.13. You agree and warrant that Your Data and any and all material(s) of every kind which you transmit using BlueTech’s Services or Equipment shall at all times be free from any and all damaging software defects, including, but not limited to, software "viruses", "worms", "Trojan Horses," and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to access the BlueTech Equipment or Web Site or another customer's Web Site without authorization, or use the BlueTech Services to to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.
8.14. You agree and warrant that you shall not use any form of mass unsolicited electronic mail solicitations, news group postings, IRC posting or any other form of "spamming," "phishing," or "mail bombing," and BlueTech reserves the right to block mail from any source which BlueTech believes, in its sole discretion, is being used to send such unsolicited e-mail, including but not limited to open mail relays.
8.15. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the BlueTech Services or BlueTech’s Equipment.
8.16. You shall at all times use Web Site Space exclusively as a conventional Web Site. You shall not use the Web Site Space or Your Services in any way which may result in an excessive load on the BlueTech Equipment, including but not limited to installing or running web proxies, using your allotted space as online backup or storage, or mirroring mass downloads. Use of Web Site Space and Your Services shall be in a manner consistent with this Agreement and shall not in any way impair the functioning or operation of BlueTech’s Equipment or network. Should your use of the BlueTech Services result in an overly high load on the BlueTech Equipment, in BlueTech’s sole discretion, BlueTech may suspend your account until the cause of any such overload is determined and resolved.
8.17. You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the BlueTech Services and that no taxing authorities shall have any claim against BlueTech or any persons affiliated therewith for the payment of such taxes.
8.18. You represent and warrant that you are over eighteen years of age (twenty one in places where eighteen years is not the age of majority) and are fully competent to enter into this Agreement.
8.19. You agree to comply with all Laws rules regarding online conduct and acceptable Content.
8.20. You represent and warrant that you are not a national or resident of Burma/Myanmar, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, and Syria or any other country subject to AUSTRIA Treasury Department embargo restrictions, and that you are not listed in the "Entity List" or "Denied Persons List" maintained by the AUSTRIA Department of Commerce or the list of "Specially Designated Nationals and Blocked Persons" maintained by the AUSTRIA Department of Treasury. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for BlueTech Services. Residents of countries which are serviced by a BlueTech affiliate are required to contract with those BlueTech affiliates, and you represent and warrant that you are not a resident of one of those countries.
8.21. You understand that your website may be hosted and accessed in the Austria and in other countries around the world, and you agree to abide by Austria law, the local laws of other jurisdictions where your website may be hosted or accessed, and any other applicable export control laws and not to transfer or permit the transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization; you agree that BlueTech may remove content, restrict access, or shut down your website if, in BlueTech’s discretion, your website or any of its content is not in compliance with applicable law. You further agree not to upload to your BlueTech account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
8.22. You agree not to use your IMAP account for the storage of files other than in the course of normal e-mail usage.
8.23. You shall not operate a chat room using the BlueTech Services unless expressly permitted by the terms and conditions of Your Services.
9. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT
9.1 During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to BlueTech in connection with BlueTech’s performance of the BlueTech Services ("Confidential Information"). You agree to preserve the confidentiality of all Confidential Information that is provided in connection with the Agreement, and shall not, without the prior written consent of BlueTech, disclose or make available to any person, or use for your own or any other person's benefit, other than as necessary in performance of your obligations under this Agreement, any Confidential Information of BlueTech. BlueTech retains all right and title to such Confidential Information.
9.2 BlueTech is a service mark of BlueTech Inc. All rights reserved. The trademarks, logos, and service marks displayed on this Web Site (collectively, the "Marks") belong BlueTech and/or its affiliates or third parties which have licensed those rights to BlueTech ("Partners"); BlueTech and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner's prior written consent. All other trademarks, product names, and company names and logos appearing on BlueTech’s Web Site are the property of their respective owners.
9.3 Unless expressly stated otherwise on the BlueTech Web Site, you should assume that all content, images, and materials appearing on or available through this Web Site (collectively the "BlueTech Content") are the sole property of BlueTech and/or its licensors. Both AUSTIA and international copyright laws and treaties protect such BlueTech Content. You may not use, reproduce, display, or sell any BlueTech Content without BlueTech’s prior written consent. You may not link to any page within BlueTech’s Web Site or frame any portion of the site without BlueTech’s prior written consent. You may not use any BlueTech Content except in connection with your Services and in accordance with this Agreement without BlueTech’s prior written consent.
9.4 The use of five (5) premium images shall be included for use within the MyWebsite Basic, MyWebsite Plus and MyWebsite Premium packages. Use of any further images shall require an additional charge.
10. YOUR INDEMNIFICATION OF BlueTech.
You agree that you shall fully defend and indemnify BlueTech, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 8 or your violation of a third party's intellectual property rights. You further agree to defend, indemnify and hold harmless BlueTech, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that BlueTech shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
11. NO JOINT VENTURE OR PARTNERSHIP
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between BlueTech and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between BlueTech and you. BlueTech shall have no control or ownership interests of any kind in your business. BlueTech shall have no direct financial or other interest in, nor in any way "own" any online "store" or other online venture pertaining to your use of the BlueTech Services or BlueTech’s Equipment. BlueTech’s relationship to you shall be restricted to matters pertaining to the provision of the BlueTech Services as set forth in this agreement.
12. BlueTech HAS MADE NO REPRESENTATIONS REGARDING SUCCESS, MARKETS OR PROFITABILITY
12.1. You confirm that you have unilaterally decided to enter the online and/or Web Site service business and that these are high risk businesses. You further confirm, understand, acknowledge and expressly agree that neither BlueTech, any agent or representative of BlueTech, nor any other person is currently representing or otherwise directly or indirectly communicating in any manner herein or otherwise, nor has at any time in the past, represented to you or has otherwise directly or indirectly communicated in any manner to you any guarantee, reassurance or any other communication of any kind regarding:
12.1.1. the potential profitability, marketability, or likelihood of success of your endeavors through the use of the BlueTech Services or BlueTech’s Equipment as set forth herein or otherwise;
12.1.2. the possibility or likelihood that use of any products and/or services provided by BlueTech pursuant to this Agreement can or will result in the recoupment of any funds expended by you for any purpose; or
12.1.3. the existence, nonexistence, size or any other characteristics of any market for any products or services which involve your use, in any manner, of the BlueTech Services or BlueTech’s Equipment pursuant to this Agreement.
12.2. You expressly acknowledge and agree that the success of any business endeavors which involve your use, in any manner, of the BlueTech Services and/or BlueTech’s Equipment pursuant to this Agreement, like any other business endeavor, is subject to numerous factors, such as the effectiveness of its advertising and promotion, your administrative capabilities, etc., and that the ultimate success or failure of your business rests with you and not BlueTech. You further expressly agree not to raise any claim of any kind against BlueTech and to hold BlueTech harmless from any claim of financial investment or other loss to you directly or indirectly resulting from your decision to use the BlueTech Services and/or BlueTech’s Equipment pursuant to this Agreement.
13. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by BlueTech pursuant to this Agreement, including the licensure of rights herein, are non-exclusive and nothing in this Agreement shall limit or restrict BlueTech from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict BlueTech from engaging in any activities similar to yours or in competition with you.
14. NO EDITORIAL CONTROL BY BlueTech.
In reliance on your express warranties regarding Your Data, BlueTech shall neither have nor exert any editorial or other subjective control over the substantive content of Your Data. BlueTech does not engage in any monitoring of Your Data, and exercises no control over information which is found on the internet, except for its own Web Site. BlueTech cannot be held responsible for the accuracy, correctness, or legality of such information. You are solely responsible for the content of Your Web Site and for verifying the accuracy and suitability of information and services you obtain from third parties via the internet.
15. PRIVACY.
15.1. It is BlueTech’s policy to respect your privacy. BlueTech will not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless BlueTech deems it necessary, in its sole discretion, to:
15.1.1. comply with legal process or other legal requirements, including but not limited to responding to civil or criminal subpoenas, search warrants, national security letters, or other requests for information from law enforcement officials;
15.1.2. protect and defend the rights or property of BlueTech or its officers, agents, affiliates, and licensees;
15.1.3. enforce this Agreement; or
15.1.4. protect the interests of other BlueTech customers.
15.2. NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, BlueTech RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF A USER'S MAIN ACCOUNT AND ANY SUB-ACCOUNTS, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
15.3. Your IP address is transmitted and recorded with each message you send using the BlueTech Services. BlueTech does provide certain information in aggregate form collected from and relating to you to third persons such as advertisers. For a more detailed description of the types and uses of personal information collected from you, please read the BlueTech Privacy Policy.
15.4. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE BlueTech SERVICES ARE PROVIDED BY BlueTech INTERNET, INC. IN THE Austria . YOU FURTHER AGREE THAT THE PERSONAL INFORMATION WHICH YOU GIVE BlueTech WILL BE TRANSFERRED TO AND MAINTAINED IN THE Austria AND OTHER COUNTRIES; INCLUDING WITHOUT LIMITATION COUNTRIES IN THE EUROPEAN UNION AND ELSEWHERE. IF YOU DO NOT CONSENT TO THE TRANSFER OF YOUR PERSONAL INFORMATION INTO AND OUT OF THE Austria , DO NOT ACCEPT THESE TERMS AND CONDITIONS FOR THE BlueTech SERVICE. YOU FURTHER UNDERSTAND AND AGREE THAT REGARDLESS OF YOUR COUNTRY OF RESIDENCE BlueTech MAY DISCLOSE PERSONAL INFORMATION ABOUT YOU AND YOUR WEBSITE OR DOMAIN NAMES PURSUANT TO THIS SECTION, AND YOU EXPLICITLY WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
16. SEVERABILITY.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
17. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER.
Failure of BlueTech at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of BlueTech.
18. NOTICES.
18.1. BlueTech may provide notice to you via e-mail sent to the e-mail address provided by you upon registration or as subsequently provided by you to BlueTech. Such notice is deemed effective whether you receive it or not and shall be deemed written notice for the purposes of this Agreement.
18.2. You may provide notice to BlueTech in one of the following ways:
18.2.1. by personal delivery;
18.2.2. by addressing the notice as indicated below and depositing the same by registered or certified mail, postage prepaid, in the Austria mail
18.2.3. by Federal Express;
18.2.4. by facsimile transmission; or
18.2.5. by e-mail and registered or certified mail.
18.3. Such notice, statement or other document so delivered to BlueTech, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice by e-mail to BlueTech shall be deemed ineffective, null and void unless a copy of such notice is also sent by registered or certified mail, and postmarked not more than five days subsequent to the giving of e-mail notice. Any such e-mail notice to BlueTech shall be deemed effective as of the date on which BlueTech receives the certified or registered mail notice.
19. FORCE MAJEURE.
19.1. In the event of "force majeure" (as defined below), BlueTech may terminate this Agreement without liability to you. For purposes of the Agreement, "force majeure" shall mean circumstances or occurrences beyond BlueTech’s reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which BlueTech cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the BlueTech Services are located or maintained or through which the BlueTech Services are provided, and nonavailability of any permits, licenses and/or authorizations required by governmental authority.
19.2. BlueTech reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the BlueTech Services (or any part thereof) with or without notice. You agree that BlueTech shall not be liable to you or to any third party for any modification, suspension or discontinuance of the BlueTech Services.
20. NO ASSIGNMENT BY YOU; ASSIGNMENT BY BlueTech.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without BlueTech’s prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. BlueTech may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
21. ARBITRATION AND WAIVER OF JURY TRIAL.
21.1. ANY AND ALL DISPUTES AS TO THE INTERPRETATION OF OR ANY PERFORMANCE UNDER THIS AGREEMENT WHICH ARE NOT FIRST RESOLVED INFORMALLY, SHALL BE DETERMINED BY BINDING ARBITRATION IN AUSTRIA
Any action to confirm or vacate such an award must be brought in either the Court of Common Pleas of the Austria . You consent to personal jurisdiction and venue in such courts and you waive any challenge to personal jurisdiction or venue in such courts.
You further agree that BlueTech shall be entitled to collect its attorneys' fees, costs and other expenses in the event that BlueTech acts to enforce this arbitration and forum selection clause, regardless of whether BlueTech prevails in the underlying action. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the Commonwealth of Pennsylvania and the federal law of the Austria . There are no exceptions to these mandatory arbitration provisions except as set forth in Sections 21.2 and 21.3.
21.2. Notwithstanding the provisions of Section 21.1, if you fail to timely pay amounts due BlueTech may assign your account for collection and the collections agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permitted by Law or this Agreement.
21.3. Nothing in Section 21.1 shall preclude BlueTech from: (i) seeking and obtaining any injunctive relief or attachment and expedited discovery or other equitable relief to enforce the terms of this Agreement or to remedy a breach thereof, or (ii) bringing an action to enforce this Agreement or the provisions hereof in the event JAMS will not or cannot arbitrate a particular dispute. Any action under this section 21.3 may be brought in the Austria
21.4. In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND BlueTech THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, and that such waiver shall be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this paragraph are waived.
21.5. Neither you nor BlueTech may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding. YOU AND BlueTech ACKNOWLEDGE THAT THIS SECTION 21.5 WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION
21.6. This Agreement shall be interpreted according to the laws of the Commonwealth of EU, Austria , and, where applicable, the federal law of the Austria , without regard to conflicts of law principles.
22. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of BlueTech or you has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and BlueTech and you hereby acknowledge and agree that neither BlueTech nor you have executed this Agreement in reliance upon any such representation or promise.
23. MODIFICATION.
23.1. This Agreement may be materially altered by BlueTech by posting the new version of the Agreement at www.BlueTech .eu and if posted in this manner, shall be effective immediately upon posting such notice. In the event that BlueTech does materially change the terms of this Agreement, you accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of the posting of notice of such change.
23.2. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of BlueTech. No additional or conflicting term in any other document used by you will have any legal effect.
24. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
