1. Services. Subject to the terms and conditions contained herein, Digital Telemedia Inc. ("dti") shall provide to Subscriber the dti Subscription Service (the "Service"). The Service, as specified in the dti Subscription Agreement includes electronic mail account(s), proprietary content of dti ("dti Content"), and access to the Internet and/or hosting of Web sites ("Web Sites") of the type selected by Subscriber in the dti Subscription Agreement ("Hosting Services"). dti reserves the right at its own discretion to cancel the Subscription Agreement and refund the Remaining Start-up Fee (as defined in paragraph 4).
2. Equipment; Licensed Software. Subscriber at its own expense will procure and obtain any and all necessary equipment, software and telecommunication services including, but not limited to, equipment on Subscriber's premises compatible with dti's equipment and facilities and appropriate telephonic service. Even though dti may sell third-party hardware (the "Hardware") and third party software (the "Software") to Subscriber at Subscriber's request, dti makes no representations or warranties with respect to the Hardware or Software and Subscriber's sole remedy shall be with respect to the warranties provided by the manufacturer of the Hardware (the "Hardware Warranty") or the Software (the "Software Warranty").
3. Subscriber's Networks. If the Subscription Agreement is for a multi-user subscription, Subscriber is responsible at Subscriber's expense for providing, operating, and maintaining any network at Subscriber's site used to access the Service. Subscriber shall not attach additional networks to the Service without dti's prior written authorization. dti reserves the right to deny any connection to another network. Subscriber shall be responsible for all security and network access at Subscriber's site, and connections between Subscriber's network to the Service at Subscriber's own cost and risk. dti provides no user access security with respect to any of Subscriber's facilities, networks, or facilities of others.
4. Term. These Terms and Conditions are effective as set forth in the Subscription Agreement. dti shall endeavor to enable Subscriber to commence access to the Services (the "Access Date") as soon as possible. Subscriber acknowledges that the Access Date normally occurs within one day after payment verification, but certain of the specified Services may require up to seven days to be operational. Upon request dti will provide additional or modified features to the Services which you have selected to the extent otherwise available on a timetable to be determined by dti. Notwithstanding the foregoing, dti shall not be responsible or liable for any delay in the Access Date for any reason, including without limitation, based upon equipment delays, telephonic service delays or any other reason, and Subscriber's sole remedy for any such delay shall be to cancel the Subscription Agreement and upon any such cancellation, Subscriber shall be entitled to a refund of the Start-up Fee (as defined in the Subscription Agreement), if any, less any out-of-pocket expenses of dti and reasonable time charges for dti employees in connection with such Subscriber (the "Remaining Start-up Fee").
5. Hosting Services. dti shall provide the Hosting Services which Subscriber selected in the Subscription Agreement. Subscriber shall be responsible to design, format and implement Subscriber's Web Site so it is compatible with dti's technical specifications. dti shall endeavor to make Subscriber's Web Site accessible through the web on a continual basis.
6. Payment. Subscriber shall pay, in accordance with the Subscription Agreement, the Start-up Fee, recurring monthly fees, and additional charges for data transfers from each of Subscriber's Web Sites ("Transfers") in excess of the permitted daily Transfers for each Web Site. Subscriber shall pay all applicable taxes relating to use of the Service by Subscriber. Subscriber shall be responsible for all use of the Service accessed through Subscriber's Access Password, and will pay for all usage charges accrued under Subscriber's Access Password whether or not authorized by Subscriber. In the event of loss or theft of Subscriber's Access Password, Subscriber must promptly notify dti in writing or by calling dti Customer Service. Subscriber will remain responsible for all charges to Subscriber's account until dti is so notified and has had a reasonable opportunity to cancel such Access Password. Any amounts not paid by Subscriber to dti when due shall bear interest at the rate of 1 _% per month until paid in full and dti may, but is not obligated to, suspend any services until all payments are made.
7. Subscriber File Security. Except as required by law or as required in the normal course of providing the services to Subscriber, dti will not copy or endeavor to copy Subscriber's stored files except as backup media for data protection purposes in accordance with dti's standard security procedures. dti reserves the right to delete files that exceed the limited space allowed Subscriber, without specifically agreed changes to such limitations, having notified Subscribers via e-mail, and with at least ten (10) days prior notice.
8. Assignment of Internet Protocol; Names. To the extent that dti has acted as Subscriber's agent with respect to securing domain names, Internet addresses or similar properties or rights ("Addressing Materials"), dti agrees to hold all such Addressing Materials in trust for Subscriber's sole and absolute use and dti shall execute any documents that Subscriber may reasonably request to effect the transfer of any Addressing Materials to Subscriber. Notwithstanding the foregoing, Subscriber acknowledges and agrees that Internet Protocol Numbers shall not be deemed to be Addressing Materials and dti shall retain all rights in and to all Internet Protocol Numbers.
9. Limitation on Use. The Service does not provide dedicated Internet access, except to the extent selected by Subscriber in the Subscription Agreement. Subscriber shall only use the Service for its own proper business or personal use in compliance with all applicable Federal, State, and local laws and regulations, tariffs, and in accordance with the conditions, rules and regulations which may be established or specified by dti from time to time. Subscriber acknowledges that only Subscriber shall be permitted to use the Service and Subscriber shall not (i) permit third parties to use the Service, (ii) resell the Service or any portion thereof, or (iii) license any third party to use the Service or any portion thereof. Subscriber agrees to use the Service in a responsible and mature manner and not use the service to harass or abuse any third party. Subscriber shall indemnify and hold dti harmless from any Damages (as defined in paragraph 12 hereof) in connection with a breach by Subscriber of the obligations set forth in this paragraph 9. Subscriber acknowledges that the Service does not include continuous connection to dti's equipment unless Dedicated Services are selected by Subscriber and that dti's equipment may disconnect Subscriber's telephonic access at any time that Subscriber is not actively using the Service unless Subscriber selected Dedicated Services.
10. Proprietary Information. Subscriber acknowledges that the dti Content is the property of either dti and/or third party licensees and Subscriber shall have no right with respect thereto. Subscriber may not publish, reproduce, distribute, broadcast, display, sell, or in any manner commercially exploit any information provided as part of the dti Service, including but not limited to, Newsfeeds, copyrighted materials of any third party, or dti Content, or participate in, assist, or allow such republication, reproduction, redistribution, rebroadcast, redisplay or resale.
11. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
(A) dti SHALL ENDEAVOR TO PROVIDE THE SERVICE, INCLUDING THE HOSTING SERVICES, IN A PROFESSIONAL MANNER IN ACCORDANCE WITH THE STANDARDS IN THE INDUSTRY. dti WILL MAKE A GOOD FAITH ADJUSTMENT TO ANY AMOUNT PAID OR PAYABLE BY SUBSCRIBER FOR THE USE OF THE SERVICE TO THE EXTENT OF A SUBSTANTIAL FAILURE IN THE SERVICE EXCEPT TO THE EXTENT CAUSED BY SUBSCRIBER OR BASED UPON ACTS OR CONDITIONS BEYOND dti'S REASONABLE CONTROL; PROVIDED THAT SUBSCRIBER REPORTS SUCH PROBLEMS TO dti IMMEDIATELY UPON DISCOVERY.
(B) SUBSCRIBER ACKNOWLEDGES AND AGREES THAT dti MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR THE HARDWARE AND SUBSCRIBER'S SOLE REMEDY WITH RESPECT TO THE (1) SOFTWARE IS PROVIDED IN THE SOFTWARE WARRANTY AND (2) THE HARDWARE IS PROVIDED IN THE HARDWARE WARRANTY. IN ADDITION, SUBSCRIBER ACKNOWLEDGES THAT dti MAKE NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE OR HARDWARE DOES NOT INFRINGE THE RIGHTS, INCLUDING, BUT NOT LIMITED TO, ANY COPYRIGHT OR PATENT, OF ANY THIRD PARTY AND SHALL NOT BE RESPONSIBLE FOR ANY INFRINGEMENT OR CLAIM OF INFRINGEMENT WITH RESPECT THERETO.
(C) SUBSCRIBER ACKNOWLEDGES THAT dti HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES THAT SUBSCRIBER'S WEB SITE WILL BE ACCESSIBLE ON A CONTINUOUS BASIS OR THAT SUCH ACCESSIBILITY WILL NOT BE LIMITED OR INTERRUPTED FROM TIME-TO-TIME BASED UPON TECHNICAL FAILURE, EQUIPMENT FAILURE OR OTHERWISE, WHETHER SUCH FAILURE IS AS A RESULT OF dti'S EQUIPMENT OR PERSONNEL OR THAT OF A THIRD PARTY. SUBSCRIBER ACKNOWLEDGES THAT dti SHALL NOT BE LIABLE OR RESPONSIBLE FOR CONSEQUENTIAL DAMAGES, LOST PROFITS OR OTHER DAMAGES, EVEN IF dti HAS BEEN ADVISED OF SUCH POTENTIAL DAMAGES, AS A RESULT OF A FAILURE OF SUBSCRIBER'S WEB SITE TO BE ACCESSIBLE THROUGH THE WEB OR OTHERWISE ARISING OUT OF dti's FAILURE TO PROVIDE THE HOSTING SERVICES OR THE QUALITY OF HOSTING SERVICES. SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER'S SOLE REMEDY FOR ANY SUCH FAILURE IS SET FORTH IN PARAGRAPH 12(A) HEREOF. IN ADDITION, SUBSCRIBER ACKNOWLEDGES THAT dti DOES NOT REVIEW OR MONITOR ANY WEB SITES AND ANY AND ALL CONTENT AND MATERIALS CONTAINED ON SUBSCRIBER'S SITE SHALL BE SUBSCRIBER'S RESPONSIBILITY AND ANY LIABILITY IN CONNECTION THEREWITH SHALL BE THE RESPONSIBILITY OF SUBSCRIBER. NOTWITHSTANDING THE FOREGOING, SUBSCRIBER ACKNOWLEDGES THAT dti MAY, UPON RECEIPT OF A COMPLAINT WITH RESPECT TO ANY OF SUBSCRIBER MATERIAL (AS HEREINAFTER DEFINED) OR FOR ANY OTHER REASON, DELETE OR REMOVE ANY SUBSCRIBER MATERIAL FROM SUBSCRIBER'S WEB SITE OR FROM BEING ACCESSIBLE THROUGH THE SERVICE; PROVIDED THAT dti SHALL HAVE NO OBLIGATION TO REMOVE SUCH MATERIAL AND NO LIABILITY TO SUBSCRIBER OR ANY THIRD PARTY FOR REMOVING OR FOR FAILING TO REMOVE SUCH MATERIAL.
(D) THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS AND SUBSCRIBER ACKNOWLEDGES THAT dti HAS NOT MADE AND WILL NOT MAKE ANY OTHER REPRESENTATION, WARRANTY OR COVENANT EXPRESSED OR IMPLIED ON WHICH SUBSCRIBER HAS RELIED OR MAY RELY WITH RESPECT TO THE MERCHANTABILITY, FITNESS, QUALITY, OPERATION PERFORMANCE OR SUITABILITY FOR SUBSCRIBER'S PURPOSE OF THE SERVICE, THE LICENSED SOFTWARE OR THE HARDWARE, IF ANY, IN ANY RESPECT AND dti SPECIFICALLY DISCLAIMS ANY SUCH REPRESENTATIONS, WARRANTIES OR COVENANTS. dti SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY LIABILITY, LOSS OR DAMAGE, CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY THE SERVICE, THE SOFTWARE OR THE HARDWARE, IF ANY, OR WITH RESPECT TO ANY OBLIGATIONS OF dti RELATED TO THE SUBSCRIPTION AGREEMENT OR THESE TERMS AND CONDITIONS, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR PUNITIVE OR FOR LOST PROFITS, WHETHER OR NOT dti HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(E) NOTWITHSTANDING ANY OTHER PROVISION OF THE SUBSCRIPTION AGREEMENT OR THESE TERMS AND CONDITIONS, IN NO EVENT SHALL dti'S LIABILITY FOR ANY REASON UPON ANY CAUSE OF ACTION IN CONNECTION WITH THE SUBSCRIPTION AGREEMENT OR THE SERVICE EXCEED THE AMOUNT PAID BY SUBSCRIBER TO dti PURSUANT TO THE SUBSCRIPTION AGREEMENT.
12. Subscriber Materials; Subscriber Web Site; Indemnification.
(A) Subscriber represents and warrants that any material which Subscriber places on Subscriber's Web Site, permits to be placed on Subscriber's Web Site with or without Subscriber's authority, or on the Internet and/or the Web through dti's Service ("Subscriber Material") will not (i) violate the rights of any third party and will not give rise to any claim of such violation, including without limitation, claims of libel, slander, defamation, copyright infringement, infringement of moral rights, trademark infringement, false designation of origin, disparagement, violation of privacy, publicity, identity, or other proprietary rights, (ii) violate any Federal, state or local law, rule or regulation of any type or nature (civil or criminal), including without limitation, laws with respect to obscenity, indecency, harassment, or export controls or (iii) contain or transmit any software disabling devices or internal controls, including, without limitation, time bombs, viruses or devices of a similar nature.
(B) Subscriber shall indemnify and hold dti and its employees, agents, shareholders, officers, directors and successors and assigns harmless from and against any and all claims, damages, liabilities, costs and expenses (including attorneys' fees and costs and settlement costs) ("Damages") arising out of (i) any breach by Subscriber of any of the representations or warranties set forth in the Subscription Agreement or these Terms and Conditions, including without limitation, the representations and warranties set forth in paragraph 12(a) hereof or (ii) Subscriber's Web Site.
13. Termination. dti may terminate the Subscription Agreement and the right to use the Service at any time without cause by sending notice to Subscriber. dti may terminate the Subscription Agreement immediately without prior written notice on a breach of the Subscription Agreement or these Terms and Conditions by Subscriber. In addition, Subscriber may also terminate this Agreement by giving written notice to dti and discontinuing use of the Service. Terminations by Subscriber will be effective ten (10) business days after the date on which dti receives notice from Subscriber. Except as provided above, terminations by dti will be effective on the date that dti gives notice to Subscriber. Subscriber will be liable for charges incurred to Subscriber's account during the billing period in which termination of the Service occurs through the termination date.
14. Changes in Services, Subscription Agreement, Terms and Conditions or Fees. dti may modify the Subscription Agreement, these Terms and Conditions, the Operating Rules, or Service prices, and may discontinue or revise any and all other aspects of the Service in dti's sole discretion upon 30 days notice pursuant to paragraph 15 hereof. Subscriber shall be deemed to have accepted any such changes or modifications by continuing to use the Service after the end of such 30 days period. A copy of dti's Standard Terms and Conditions including any changes made to such Terms and Conditions from time-to-time will be available at http://www.dti.net or any new address of which dti gives Subscriber notice.
15. Miscellaneous.
(A) The Subscription Agreement shall be governed and construed under the laws of the State of New York for agreements to be performed entirely in the State without giving effect to principles of conflict of laws. Any dispute arising out of the Subscription Agreement, these Terms and Conditions, the Service or any services provided by dti to Subscriber shall be resolved exclusively in the Federal or State courts located in New York County and by signing the Subscription Agreement, Subscriber consents to the jurisdiction of such courts over Subscriber. All notices given by Customer shall be in writing and addressed to Digital Telemedia Inc. at 91 Fifth Avenue., Suite 401, New York, NY 10003-3039, or by fax to (212) 255-1339. All notices to Subscribers shall be given either in writing, via E-mail, via fax, or by telephone, to the address, E-mail address, fax number, or telephone number indicated on the Subscriber's Subscriber Agreement.
(B) Subscriber acknowledges and agrees that Subscriber will permit dti to use its name and trademarks for promotional and advertising purposes; provided that (i) such use accurately reflects the relationship of the parties and (ii) the form of such trademarks are subject to Subscriber's reasonable approval.
(C) Subscriber may not sublicense, assign or transfer its rights under this Subscription Agreement and/or to use the Service. Any attempt to sublicense, assign or transfer any of the rights is in violation hereof and shall be null and void.
(D) By signing the Subscription Agreement, Subscriber hereby agrees to these Terms and Conditions. The Subscription Agreement, along with these Terms and Conditions represent the parties entire agreement and understanding, supersede any previous oral or written agreement and may only be modified pursuant to a written agreement or as permitted by paragraph 14 hereof.
