Last Revised: 06/13/2016
The use of services provided by choopa.com (hereafter referred to as "Choopa") is subject to the following Terms and Conditions.
Party Definitions and Introductory Terms - The operative parties referred to in this Agreement are defined as follows:
PLEASE READ THE FOLLOWING HOSTING SERVICES TERMS AND CONDITIONS. BY SUBSCRIBING TO Choopa's SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (the "AGREEMENT"). IF YOU AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK "I ACCEPT," (OR SIMILAR SYNTAX) OR CHECK THE APPROPRIATE BOX MANIFESTING YOUR INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE ACCOUNT SET-UP PROCESS. YOU SHOULD PRINT-OUT OR OTHERWISE SAVE A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE "BACK" BUTTON ON YOUR BROWSER AND DO NOT SUBSCRIBE TO Choopa's SERVICES. Choopa AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT IS PERMITTED BY THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (E-SIGN ACT) AND SIMILAR FEDERAL AND STATE LAWS. ANY USE OF Choopa's SERVICES SHALL CONSTITUTE AN ACT OF ACCEPTANCE OF THE CURRENT HOSTING SERVICES TERMS AND CONDITIONS.
Incorporations by reference.
Although this Agreement represents the primary terms and conditions of service for Choopa's Services, additional guidelines and rules are hereby incorporated by reference. The documents which can be found on Our Site, and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
Our Acceptable Use Policy (http://www.choopa.com/corporate/acceptable_use.php)
1.1 At the time of initial registration, You will select from the list of available Services the service plan(s) to which You wish to subscribe. All subscriptions to Services are subject to formal acceptance by Choopa. Your subscription to the Services will be deemed accepted by Choopa when Choopa delivers a confirmation of the subscription to You. Choopa reserves the right to refuse to provide You with any Service for any reason. Notwithstanding Our Uptime Guarantee found in Section 17 of this Agreement, Choopa also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional Services at any time, provided that You agree to pay the then-current fees for such additional Services. All additional Services shall be considered "Services" hereunder. All Services provided are subject to availability and to all of the terms and conditions of this Agreement.
2. REVISIONS TO USER AGREEMENT
This Agreement contains the complete and entire terms and conditions that apply to Your use of Choopa's Services (as defined below). Choopa may modify the terms of this Agreement, including the Fees (as defined below) at any time.
2.1 From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
2.2 We agree that if We change anything in this Agreement, We will change the "last modified date" at the top of this Agreement. You agree to periodically re-visit this web page, and to use the "refresh" button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the "last modified" date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the "last modified" date has changed, then You can be certain that something in the Agreement has been changed.
2.3 Should You wish to terminate this Agreement due to any revisions made by Us, You must do so in writing via the cancellation form within thirty (30) days of the "last modified" date described above. Your continued use of the Services after the effective date of any such notice constitutes Your acceptance of such changes.
2.4 Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
3. DURATION OF AGREEMENT AND CANCELLATION POLICY
3.1 The Initial Term shall begin upon confirmation of Your order or commencement of the Services to You and receipt of lawful funds. The term's length is chosen by You and shall be indicated when You order Our Services. This Agreement may not be terminated by You during the Initial Term (and any renewals thereof) except in the event of a breach by Choopa. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.
3.2 You must provide fourteen (14) days notice of non-renewal to Us should You not wish to renew this Agreement after the Initial Term. Choopa may terminate this Agreement at any time, without notice, in the event of nonpayment or violation of terms of service by You, if in Choopa's sole judgment You have in any way breached this Agreement ("Termination for Cause"). If you cancel any Service prior to the expiration of any Term, You understand and agree that Choopa will not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees).
3.3 Choopa may also terminate this Agreement in its sole discretion at any time for any reason or no reason. ("Termination without Cause"). In such case, Choopa will provide You with thirty (30) days written notice before the discontinuation of Services.
3.4 If Choopa cancels this Agreement pursuant to any of the terms outlined in this Agreement, with the exception of Termination without Cause pursuant to paragraph 3.3, Choopa shall not refund to You any fees paid or prepaid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that Choopa terminates the Agreement for cause, all prepaid hosting fees will be forfeited and are not refundable. The termination of this Agreement does not relieve You of Your obligation to pay any Fees accrued or payable to choopa.com prior to the effective date of termination of this Agreement.
3.5 Cancellations must be done in writing via the support ticket system at https://my.choopa.com. We require You to cancel in writing so that We can confirm Your identity and to confirm with You that You are prepared for all of Your content to be removed from Our servers. Once We receive Your cancellation and have confirmed all necessary information with You via e-mail, We will inform You via email to the email address on file that Your account has been canceled. If You do not receive the confirmation email within twenty-four (24) hours after submitting Your cancellation request, please contact Us immediately via [email protected].
3.6 In addition to Choopa's right to terminate this Agreement provided elsewhere in this Agreement, Choopa may terminate this Agreement effective immediately if, based on Choopa's sole judgment, it determines that You or any of Your end-users: (a) have breached the Acceptable Use Policy ("AUP") as described in Section 12 of this Agreement, and incorporated herein, (b) have infringed or violated any intellectual property right or privacy or publicity right of a third party, (c) have not complied with any applicable law, statute or regulation, or (d) have uploaded, published or disseminated any images, text, graphics, code or video which Choopa considers illegal or high risk, in its discretion. Nothing contained in this Agreement is intended to, or shall, impose any duty or obligation upon Choopa to monitor or review Your Content or the content of Your end-users at any time. You remain solely responsible for Your Content, and any liability generated therefrom.
3.7 The termination of this Agreement will terminate Your access to the Services and Your license to the Host Materials (as defined in Section 5.2 of this Agreement). Choopa shall not be liable to You or to any third party for termination of the Services permitted under this agreement. Upon termination of this Agreement, Choopa reserves the right to maintain copies of Your data files and records for archival purposes, but does not undertake any obligation to do so. Choopa reserves the right to impose an early termination charge for all Services terminated prior to the last day of the billing cycle.
3.8 If either party cancels or terminates this Agreement for any reason, You shall be solely responsible for making all necessary arrangements for securing a replacement host and moving all electronic data, graphics, images, video or text to the new service provider. Upon termination of this Agreement, provisions that by their nature would be expected to survive termination shall survive and remain in full force and effect in accordance with their terms.
4. ACCOUNT SET UP
4.1 When You register for the Services, Choopa will provide You with a user ID and a password. You may use the Services or modify Your data and content only through such user ID and password. You are entirely responsible for maintaining the confidentiality of Your user ID and password and for any and all activities which occur using those credentials. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of security known to You.
4.2 You must provide Us with a primary email address that is not part of any domain hosted by Us. All notices and communications between Us will be sent to the email address You provide, and You are therefore required to keep this address current or notify Us if Your address changes. You should notify Us if any of Your contact and/or billing information changes so that We may update Your account. It is also Your responsibility to make sure that Our domain(s), choopa.com, are not included in any spam block list used by You or Your mail provider.
4.3 Providing false or inaccurate contact information of any kind may result in the Termination for Cause of Your account per Section 3.2 of this Agreement.
4.4 You are responsible for all activity transpiring under Your account. We therefore highly recommend that You secure file, directory, and script permissions to the most restrictive settings possible. You agree that You have the technical ability to properly operate a web site and that You are responsible for any actions performed under Your account, including but not limited to, damage caused to Your site, Choopa's site and/or equipment, and any other site.
5. INTELLECTUAL PROPERTY RIGHTS
All Services provided by Choopa may only be used for lawful purposes.
5.1 As between You and Choopa, Choopa acknowledges that it claims no proprietary rights in or to the content (including without limitation, text, software, music, sound, audio visual works, motion pictures, photographs, animation, video and graphics) supplied by You for use on Your web site ("Your Content"). You hereby grant to Choopa a non-exclusive, worldwide and royalty-free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Your Content, solely for the benefit of You and to enable Choopa to perform its obligations hereunder.
5.2 In connection with performance of the Services and at the sole discretion of Choopa, Choopa may (but is not obligated to) provide You with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Choopa or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to You, and other know-how, methodologies, equipment, and processes used by Choopa to provide You with the Services ("Host Materials"). Subject to the terms and conditions of this Agreement, Choopa hereby grants You a limited, revocable, non-transferable, non-exclusive license to use the Host Materials solely in connection with the Services. This license terminates when this Agreement terminates. As between You and Choopa, You acknowledge and agree that Choopa owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any use of the Host Materials after termination of this Agreement is not licensed and strictly prohibited. You agree that You will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express written permission to do so from Choopa.
5.3 This Agreement does not constitute a license to use Choopa's trade names, service marks or any other trade insignia. Any use of any of Choopa's trade names, service marks or any other trade insignia is strictly prohibited, absent Choopa's prior written consent.
5.4 As a specific matter – You are not permitted to register any Uniform Resource Locator (URL) or world wide web address that contains any of Our trademarks or URLs or that contain any terms that are confusingly similar to Our trademarks or Our URLs.
5.5 You may not register any URL or world wide web addresses that consist of, or contain, common or likely misspellings of Our trademarks or Our URLs.
5.6 In the event that You wish to register a URL and You are unclear as to whether the URL would be considered to be a violation of this provision, You are invited to contact Us. Upon receipt of Your request, We will issue a determination to You within thirty (30) days as to whether the URL would be a violation of this Agreement.
5.7 In the event that You do not receive a response from Us within thirty (30) days, You should consider registration of the URL to be a violation of this Agreement and You should not register the URL.
5.8 If You violate this Agreement, You will immediately transfer the offending URL to Us upon demand, and You agree to pay Us $5000 in stipulated liquidated damages for each URL registered in violation of this Agreement. This remedy shall be cumulative to any other legal or equitable remedies provided under state or federal law.
5.9 You specifically agree to pay the liquidated damages referenced above. In agreeing to pay these liquidated damages, You acknowledge that this amount is not a penalty, and that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties' good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
5.10 If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, or if We are required to file an ICANN complaint against You in order to bring about the transfer of an offending URL to Us from You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages, or in order to seek injunctive relief from You, or in order to file and prosecute an ICANN complaint.
5.11 You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
6 DMCA Notice and Takedown Policy
choopa.com ("Choopa") implements the following DMCA Notice and Takedown Policy. Choopa respects the intellectual property rights of third parties, and expects others to do the same. As part of our effort to recognize the copyrights of third parties, Choopa complies with the U.S. Digital Millennium Copyright Act ("DMCA") and is therefore protected by the limitations on liability recognized by 17 U.S.C. § 512; commonly known as the "safe harbor" provisions of the DMCA. Choopa's infringement notification procedure, counter-notification procedure, and takedown policies, are set forth below.
7 Notice of Claimed Infringement
7.1 Abuse Warning
The DMCA permits copyright owners, or their authorized agents, to submit notifications to service providers, such as Choopa, requesting that infringing material hosted on Choopa's servers be disabled or removed. Importantly, the DMCA imposes significant penalties – including court costs and attorneys fees – on those who abuse the infringement notification procedure, by misrepresenting either that material is infringing, or was removed by mistake. See; 17 U.S.C. § 512(f). Choopa will pursue those who abuse its DMCA notice or counter-notification procedure, and will cooperate with law enforcement in any investigation of such abuse. Please make sure that you meet all the qualifications before submitting a DMCA notice to our Designated Agent identified below.
7.2. Notification Contents and Procedure
If you believe that your work has been copied, reproduced, altered or published in a way that constitutes copyright infringement under federal law, or your copyrights have been otherwise violated, please submit a DMCA notice to Choopa's Designated Copyright Agent, containing the following:
Claimants may send their Notice of Claimed Infringement to:
David Gucker, DMCA Agent
14 Cliffwood Ave Suite 300, Metropark South
Matawan, NJ 07747
dmca [at] choopa [dot] com
Please do not send other inquires or information to our Designated Agent.
8. Takedown Policies and Procedures
Choopa implements the following Takedown Policies and Procedures. Upon receipt of any notification of claimed copyright infringement, Choopa will act expeditiously to notify its customer of the alleged infringement, and take steps to disable or remove the subject material. DMCA Notices are generally processed within two (2) business days from receipt, absent extenuating circumstances. Choopa reserves the right at any time to disable access to, or remove any material or expressive work accessible on or from its servers or services, that is claimed to be infringing via a valid DMCA Notice, or based on facts or circumstances from which infringing activity is apparent. It is the firm policy of Choopa to terminate the account of repeat copyright infringers, when appropriate, and Choopa will act expeditiously to remove access to all material that infringes on another's copyright, according to the procedure set forth in 17 U.S.C. §512 of the DMCA. The procedure for notifying Choopa of claimed copyright infringement is set forth in Section 7.2, hereof. If the DMCA notice does not comply with §512 of the DMCA, but does substantially comply with the (3) three requirements for identifying infringing works according to §512 of the DMCA, Choopa shall attempt to contact or take other reasonable steps to reach the complaining party to assist that party comply with sending a compliant DMCA Notice. As noted above, when Choopa's Designated Agent receives a valid notice, Choopa will act expeditiously to remove and/or disable access to the infringing material and shall notify the affected customer or subscriber. Then, the affected customer or subscriber may submit a counter-notification to the Designated Agent, using the counter-notification procedures set forth below. Choopa reserves the right to modify, alter or add to this policy, and all affected persons should regularly check back to this page to stay current on any modifications.
9. Counter-Notification Procedures
If the Recipient of a Notice of Claimed Infringement ("Notice") believes that the Notice is erroneous or false, and/or that allegedly infringing material has been wrongly removed/disabled in accordance with the procedures outlined above in Section III above, the Recipient is permitted to submit a counter-notification pursuant to 17 U.S.C. § 512(g)(2) & (3). A counter-notification is the proper method for the Recipient to dispute the improper removal or disabling of material pursuant to a Notice. The information that a Recipient provides in a counter-notification must be accurate and truthful, and the Recipient will be liable for any misrepresentations contained in the counter-notification pursuant to 17 U.S.C. § 512(f).
9.1 To initiate a counter-notification, the Recipient must submit to Choopa's Designated Copyright Agent the following information:
Counter Notifications can be sent to:
David Gucker, DMCA Agent
14 Cliffwood Ave Suite 300, Metropark South
Matawan, NJ 07747
dmca [at] choopa [dot] com
Please do not send other inquires or information to our Designated Agent.
After receiving a DMCA-compliant counter-notification, Our Designated Copyright Agent will forward the counter-notification to the original claimant who first provided the Notice identifying the allegedly infringing material.
Within ten to fourteen (10-14) days from Choopa's receipt of a valid counter-notification, Choopa will replace or cease disabling access to the disputed material unless Choopa's Designated Agent receives notification that the original claimant has filed an action seeking a court order to restrain the Recipient from engaging in infringing activity relating to the material on Choopa's system or network.
10. Service Provider Customers of Choopa
Some of Choopa's customers are, themselves, "Service Providers" within the meaning of 17 U.S.C. § 512(k)(1). Accordingly, Choopa requests that any DMCA Notices relating to alleged infringement by third party users, customers or subscribers of Choopa's Service Provider Customers be submitted directly to the DMCA Agent designated by such customer.
Choopa reserves the right to modify, alter or add to the DMCA policy set forth in Sections 6-10 above, and all users should regularly check back regularly to stay current on any such changes.
12. CONTENT AND ACCEPTABLE USE POLICY
12.1 You agree to comply with Choopa's Acceptable Use Policy ("AUP"), which may be found by accessing Choopa's web site at http://www.choopa.com/corporate/acceptable_use.php, which policy is hereby incorporated by reference as an indispensable part of this Agreement. Choopa reserves the right to modify the AUP at any time by posting the modified policy on its web site. You agree to monitor the choopa.com home page for any changes to the AUP. Your continued use of the Services after the effective date of any changes to the AUP constitutes Your manifestation of intent to be bound by such changes. Choopa may, at its sole discretion, immediately terminate Your access to the Services, or this Agreement, if Your conduct violates the AUP, or if any of Your end users' conduct violates the AUP.
12.2 Choopa will not actively monitor the content of the web sites being hosted by choopa.com, although choopa.com, at its sole discretion, may elect to electronically monitor its network and may disclose any content or records concerning Your account as necessary to satisfy any law, regulation, or other governmental request or to properly operate Our network and protect any of Our customers. Choopa will investigate complaints of a violation of a third party right or of the AUP. Choopa will cooperate with those attempting to minimize Internet abuse and reserves the right to institute "filters" or other mechanisms for that purpose. Choopa will cooperate with law enforcement authorities and reserves the right to notify such authorities if it suspects that You or any of Your end users are engaged in illegal activities. Nothing contained in this Section, or anywhere in this Agreement, is intended to bestow any rights on any third party, and no third parties shall be entitled to enforce any terms of this Agreement between the Parties.
12.3 You acknowledge and expressly agree that Choopa will not be liable to You or any of Your end users for any action Choopa takes to remove or restrict access to the Services for any alleged violation of the AUP, or exercising its rights as a Good Samaritan under the Telecommunications Act of 1996 (47 U.S.C. § 230(d)) or under the Digital Millennium Copyright Act of 1998 (See Section 12.8 below).
12.4 Choopa may, at its sole discretion, immediately terminate Your access to the Services, and terminate this Agreement for cause, if Your conduct violates the acceptable uses outlined below, or if any of Your end users' or downstream customers' conduct violate such acceptable uses.
12.5 Choopa takes the issue of child pornography very seriously, and any potential harm to minors using our services is strictly prohibited. Content that is or may be perceived to be child pornography will be immediately removed from public access upon notification or detection by Us. Additionally, Choopa reserves the right to terminate any account whose website(s) hosts or links to child pornography immediately and without notice to You. If the account is a Choopa reseller account, the account will be suspended and the reseller will be directed to terminate the responsible account. You agree to cooperate in any such efforts. Content or communications seeking to solicit, lure or entice minors into sexual activity or lewd behavior is also strictly prohibited, and will be treated the same as, or similar to, child pornography, consistent with applicable law. You agree to cooperate with Choopa in any effort to investigate, disable or remove such content originating with Your end-users. Consistent with federal law, Choopa will cooperate with law enforcement authorities and will notify such authorities if it suspects that You or any of Your downstream customers or end users are engaged in any such illegal activities.
12.6 In accordance with the reporting requirements of 18 U.S.C. § 2258A, We will report to the CyberTipline (www.cybertipline.com) any actual knowledge of apparent violations of 18 U.S.C §§ 2251, 2251A, 2252, 2252A, 2252B, 2260, or 1466A. If You suspect any instances of child pornography appearing on sites hosted by Choopa, We encourage You to send such reports to Our abuse address ([email protected]), and include the file name and/or URL (or other location on the customer's site), victim (if known), date of birth, date of production, and any other information about the suspect image(s). Do not send the image(s) in question. Alternately, You may use the CyberTipline to report suspected child pornography. Reports involving sites not hosted by Choopa should be directed to law enforcement or to a cooperating child pornography organization such as: http://www.asacp.org/index.php?content=report.
12.7 We respect the intellectual property rights of all parties and have adopted a policy regarding termination of repeat copyright infringers under the Digital Millennium Copyright Act. Copies of Our Repeat Infringer Policy are available on request to our clients.
12.8 Section 230 Notice: You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material on Your site. You agree not to allow minors to view any such site, and agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors' access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), You are hereby informed that You can research such services at websites such as: www.getnetwise.org or http://www.child-internet-safety.com/internet_filters.php, among others. Please note that this Site makes no representation or warranty regarding any of the products or services referenced on such sites, and recommend that the user conduct appropriate due diligence before purchasing or installing any online filter. You agree to take particular steps to prevent minors from viewing this site if Your computer can be accessed by a minor. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age-restricted content on Our Site from being displayed or accessed by Your children or wards.
Pursuant to the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that Choopa operates as the provider of an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication of Your content (including third-party content published on Your website(s)). We do not create such content, and We are not responsible for the publication of remarks or communications of You or third-parties that may arguably rise to the level of being actionable under federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that federal law allows Choopa to remove any content found to be offensive, defamatory, obscene or otherwise violative of Our policies, without impacting Our immunity status as an interactive computer service. Nothing contained in this paragraph is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act. In the event that any court finds that any third party communication or third party content hosted by us falls outside of the realm of the immunity provided by the CDA, this shall not be deemed to be a waiver of any legal protections provided by Section 230 for any and all other content posted on our Website or hosted via our Services.
12.9 Specific Requirements for Service Provider and User-Generated Content Subscribers
If You use Our Services for any site, sub-domain, page or business model that allows Your end users or customers to control or upload material to Internet space assigned to You by Us, You shall be deemed to be acting as a "Service Provider" with respect to such services and/or customers. Service Providers include but are not limited to Clients which; a) resell bandwidth as hosts to third parties; b) operate user-generated content sites such as forums, "tube" sites, review sites, and online classified advertising sites; c) operate search engines; or d) operate peer-to-peer file sharing networks. Clients acting as a Service Provider for third party users shall comply with the following provisions:
It is the policy of Choopa to provide any infringement notices it receives relating to Service Provider Subscribers, directly to the Subscriber's Designated DMCA Agent, and to further notify any copyright claimants of the identity and contact information for the Service Provider Subscriber's Designated DMCA Agent. Failure to maintain compliance with this section shall constitute a material breach of this Agreement. Nothing contained herein should be interpreted as legal advice, and You are encouraged to consult your personal attorney regarding DMCA safe harbor compliance, or any other legal matter.
12.10 In keeping with Our DMCA policies and obligations set forth above, You understand, agree, and expressly allow Us to access and subsequently disable public access to any files or data residing on the server, disk, partition, or other data space under Your control as Our customer when such files or data, in Our discretion; 1), have been identified in a substantially compliant DMCA notice under 17 U.S.C. § 512; or 2) when We become aware of facts or circumstances indicating that such files or data are infringing on the copyrights or other intellectual property rights of third parties. Given that Our customers may employ various methods of securing files in conjunction with Our Services, and in an attempt to avoid material disruption of Our customers' Services, You agree that You will provide Us with Your preferred procedure for disabling access to material identified under this provision. If We forward You a substantially compliant DMCA Notice and which concerns content under Your control, You are obligated under this Agreement to immediately disable or remove access to such content. Irrespective of the above, We reserve the right to disable or remove access to such content, in Our discretion, and without claim of damage or injury by You. While We will attempt to simply disable access to such content without fully deleting it, or suspending all services to your account, We make no warranties concerning harm or injury to the content, and reserve the right to take any necessary actions to disable access to the identified material, including suspension or termination of Services. It is therefore in Your best interest to promptly respond to any DMCA Notices You may receive. Should You or Your website's users feel that such DMCA Notice was erroneously or improperly sent, You must follow the Counter-Notification procedure set forth above, and wait the required period of time, before We allow public access to the content to resume.
12.11 Nothing contained in this Section, or any part of this Agreement, shall constitute legal or professional advice regarding any matter referenced therein. You are responsible for obtaining your own legal advice regarding compliance with any and all applicable laws or regulations.
13. ZERO TOLERANCE SPAM POLICY
13.1 You agree to comply with Choopa's Anti-Spam Policy which may be found at http://www.choopa.com/corporate/antispam_policy.php and which is hereby incorporated by reference as an indispensable part of this Agreement. Use of Choopa's services for any illegal spam activities is strictly prohibited.
13.2 Choopa reserves the right to modify the Anti-Spam Policy at any time by posting the modified policy on its web Site. You agree to monitor Choopa's home page for any changes to the Anti-Spam Policy. Your continued use of the Services after the effective date of any changes to the Anti-Spam Policy constitutes Your manifestation of intent to be bound by such changes.
14.1 Payment for Services is due in advance of the time period for which such payment covers. Services are billed on an automatic and recurring basis unless and until you follow Choopa's cancellation procedure set forth in this Agreement.
14.2 Unless separately negotiated by You and Us, and confirmed by separate written agreement, the initial and recurring Fees for the Services selected by You shall be as provided in the initial on-line order form. All set-up fees and special programming fees are non-refundable. Fees for Services are payable in advance. Failure to make payment of Fees for Services when due may result in the suspension or termination of Services.
14.3 At the time of registration, You must select a payment method. Choopa reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. If You do not pay all Fees when due, Your account will be deemed past due. For any past due Fees, Choopa will charge You interest at one and one-half percent (1.5%) or the highest rate allowed by applicable law, whichever is lower, per month of the unpaid amount, until paid.
14.4 You agree to pay any and all taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. Choopa is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. If Choopa should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, Choopa will invoice You for the difference between payment received and the Fees due.
14.5 You also agree to pay all attorney and collection fees arising from Choopa's efforts to collect any past due Fees. If you cancel any Service prior to the expiration of the pre-paid Fees, You understand and agree that Choopa will not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees.
14.6 Coupons and Discount Codes – From time to time, Choopa may offer coupons or other discount codes which may be used when signing up for hosting with Us. Coupons and discount codes are for first-time customers of Choopa and must be used at the time of Your initial purchase with Us – they may not be applied after Your service with Us has already been initiated. Unless expressly provided, such coupons and discount codes may not be used toward upgrades to Your account. Any account We deem to be attempting unauthorized coupon or discount code use may be subject to Termination for Cause.
15. BACK UPS & DATA LOSS
15.1 You agree that Your use of Choopa's Services is at Your own risk, and that Choopa is not liable for any data loss in connection with its Services. You are solely responsible for creating backups of Your Content. If, during Our own routine maintenance, We do create a backup of Your Content which You later request Us to restore to Your account, We cannot guarantee that we will be able to do so, or that Your Content will be unharmed as a result of the initial data loss or the subsequent restore procedure. To that end, We highly recommend that You establish Your own routine backup procedure and that You periodically test restoring files from Your backup media to ensure that You are making viable backups.
15.2 Should you wish for Choopa to provide you with routine backup service, in addition to the Services provided under this Agreement please contact Us. We offer many different backup solutions as an add-on service to Our regular Services, and all such services are provided through a separate, written agreement.
16. RESOURCE USAGE & SECURITY
16.1 Choopa does not impose hard set limits on each account's system resources. We do not actively disable accounts until they greatly exceed an acceptable level of usage. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc. Choopa will advise You of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.
16.2 Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from the Site and/or Materials. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage Our Services and Site or any communications on it. If You do not adhere to this provision of this Agreement, in addition to monetary damages and other remedies available to Choopa, You hereby agree to pay liquidated damages of $5000.00 plus any and all fees associated with recovery of these damages, including attorneys' fees and costs.
16.3 SECURITY Any violation of the security to the Site and/or Services is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers used to provide the Site, Services, and/or Materials (the "Servers") is strictly prohibited and is a violation of this Agreement and the AUP per Section 6 of this Agreement. You agree not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware and software, compromising the Servers, or for any other unauthorized use commonly known as "hacking." In addition, You are prohibited from the following:
In the event You are involved in any violation of system security, We reserve the right to release information about You to system administrators at other sites in order to assist in resolving security incidents, and We shall also cooperate with any law enforcement agency investigating a criminal violation of system or network security. Additionally, any violation of these security provisions may, at Our sole discretion, be grounds for Termination for Cause as described in Section 3.2 of this Agreement.
16.4 BANDWIDTH USAGE Your monthly bandwidth allowance is determined by the specific package for which You sign up. If Your account exceeds Your monthly allowance, You will be charged an overage fee as outlined in Your service order. If this fee is not outlined in Your service order, then You will be charged the default rate of $25.00 per Megabit overage, or $0.10 per Gigabyte, whichever is lower. Unused bandwidth is not carried over to the next month for purposes of a credit. Unmetered bandwidth plans may be part of a shared pool of bandwidth, please consult a sales representative to see if the plan you are interested in is dedicated or shared. Bandwidth is calculated by adding the in+out traffic unless otherwise specified on your service order. Plans with "Free Incoming" only charge for the outbound bandwidth (FROM your server TO our network).
16.5 FAIR USE POLICY We provide specific Services to our Clients and define normal, fair, and reasonable use in terms of our TB/Unmetered bandwidth plan as use that is consistent throughout any given billing period. We expect regular usage patterns from individual component machines and the client solution as a whole. Should we at our sole discretion determine a Client is not using this Service as defined under this Fair Use Policy, we may take actions to mitigate negative impact to Service delivery systems including but not limited to the following:
17. UPTIME GUARANTEE
17.1 Choopa may offer You a Service Level Agreement ("SLA") guaranteeing certain availability of Our Services. If applicable, the terms of any such SLA were separately negotiated between You and Us, and such SLA, if any, is hereby incorporated by reference as an indispensable part of this Agreement.
To be eligible for any credits to Your account, You must follow the specific procedures set forth in the SLA for notifying Us of Your desire for credits. You understand and agree that the failure to follow the procedure in the SLA within three (3) days of the triggering event will result in Your waiver of any right to receive credits.
18. PRICE CHANGE
The amount You pay for hosting will never increase during a specific term or time period for which you have signed up for Our Services. We reserve the right to change prices listed on choopa.com at any time, without notice. Additionally, if we terminate this agreement without cause pursuant to paragraph 3.3 of the Agreement, You understand that if We agree to provide Services to You in the future, the amount You paid under any prior term or time period is not determinative of the amount You pay should We provide Services to You again. It is Your responsibility to check Our website for plan or price changes should You wish to take advantage of plan or price changes which may have occurred. Choopa will provide written notice of pricing changes on month to month services fourteen (14) calendar days in advance of term expiration. All upgrades or downgrades will be performed at Your request and may include modification fees or require reinitiating service with Us.
You agree to defend, indemnify, and hold Choopa and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from (a) any breach of Your covenants under this Agreement; (b) Your use of the Services; (c) any defamatory, libelous or illegal material contained within Your Content or Your information and data; (d) any claim or contention that Your Content or Your information and data infringes any third party's patent, copyright or other intellectual property rights or violates any third party's rights of privacy or publicity; (e) any third party's access or use of Your Content or Your information and data; (f) any violation of the applicable Acceptable Use Policy. In the event of a claim under this section, Choopa shall be permitted to select legal counsel to provide a defense to such claim. Choopa reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from You, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Choopa, which shall not be unreasonably withheld.
20. NO WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS, WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. Choopa EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OTHER THAN AS SET FORTH IN PARAGRAPH 11, Choopa MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES Choopa MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ANY STATEMENTS MADE REGARDING SUCH MATTERS IN PROMOTIONAL MATERIALS SHALL BE CONSIDERED ADVERTISING REFERENCES, AND NOT WARRANTIES. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
Choopa MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO YOU THAT ARE NOT PART OF THE SERVICES ("THIRD-PARTY SERVICES"). Choopa HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE THIRD-PARTY.
Choopa MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Choopa OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON Choopa's WEBSITE.
UNLESS OTHERWISE AGREED TO IN WRITING, Choopa DOES NOT MAKE A BACK-UP OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS.
21. LIMITATION ON LIABILITY
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEB-SITE AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL Choopa BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB-SITE AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB-SITE AND/OR BUSINESS.
THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL Choopa, OUR AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON THE SERVICES ("AFFILIATES"), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF Choopa HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL AGGREGATE AND MAXIMUM LIABILITY OF Choopa AND THE AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS YOU HAVE PAID TO Choopa DURING THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.
22. GENERAL PROVISIONS
22.1. Jurisdiction, Venue, and Choice of Law. This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of the State of Florida, excluding its conflict of law provisions. The parties hereby submit to the personal jurisdiction of the state and federal courts of Orange County, Florida in the event litigation permitted under this Agreement is initiated. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Orange County, Florida.
The parties agree that this choice of venue, jurisdiction, and forum as set out in the following parts of this Agreement is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in jurisdiction other than that specified in this Section.
All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
22.2. Arbitration. If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party shall submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker's compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Orange County, Florida and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator's fees. Each party shall bear its own attorneys' fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall be willing to execute an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
22.3. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by You.
22.4. Severability. If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
22.5. No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
22.6. Complete Agreement. This Agreement (including all other policies incorporated herein) constitutes the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
22.7. Relationship Between the Parties. Choopa is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
22.8. Non-Solicitation. Beginning upon commencement of the Services to You and continuing for a period of two (2) years after the termination of this Agreement or after any other cancellation or termination of Your account or Services with Us, You agree not to directly or indirectly, solicit, hire, contract, or otherwise employ any Choopa employee who was an employee during the term of this Agreement (including the Initial Term and any successive terms), to work for You or any other firm, person or business, of whatever character, corporate or otherwise.
22.9. Headings. Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
22.10. Force Majeure. Choopa shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay Choopa's performance.
22.11. Export. You understand and acknowledge that the software elements of the Host Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that You will abide by such laws and regulations.
22.12. Complaints – California Residents: The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: http://www.dca.ca.gov/online_services/complaints/consumer_complaint.shtml.
22.13. Government Rights. The software elements of the Host Materials have been developed at private expense and are "commercial computer software" or "restricted computer software" within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
22.14. Notices Electronic Communications. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided by You and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of the parties may communicate with the other by electronic means as described in this Agreement. Each of the parties agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communication, is legally sufficient to verify the sender's identity and the communication's authenticity; (ii) An electronic communication sent by You containing Your user identification establishes You as its originator and has the same effect as a document with Your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.