Just a little light reading:
General Terms and Conditions
1&1 Internet Inc. General Terms and Conditions of Service
BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS
OFFERED BY 1&1 INTERNET INC YOU AGREE TO BE BOUND BY THE TERMS OF THIS
AGREEMENT. THESE TERMS &CONDITIONS SUPERSEDE ALL EARLIER VERSIONS AND REQUIRE
MANDATORY ARBITATION OF DISPUTES. Please read these terms and conditions
carefully, as they describe your legal rights and obligations. This agreement
shall become come 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 1&1 confirming your order, whichever happens first.
1. DEFINITIONS.
For the purposes of this Agreement:
1.1.
"1&1's Equipment" shall mean computer and telecommunications device, Internet
access and/or transmission rights owned, operated, and/or maintained by 1&1
and/or 1&1's affiliates, agents, or assigns which provide the 1&1 Services.
1.2.
"1&1, "us," "we," "our" and grammatical variants thereof shall collectively
refer to 1&1 Internet Inc., a corporation organized and existing under the laws
of the State of Delaware, United States of America, located at 701 Lee Road,
Suite 300, Chesterbrook, PA, U.S.A. and its assigns and successors in interest.
1.3.
"1&1 Services" shall mean the products and services provided by 1&1 and/or 1&1'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
1&1's sole discretion.
1.4.
"1&1 Software" shall mean any software provided by 1&1 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 1&1 Services. The 1&1
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 1&1'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.
"Fee" shall mean monies and other consideration you are obligated to pay to 1&1
for the right to use the 1&1 Services and Bandwidth subject to the terms and
conditions of this Agreement and of the particular 1&1 Services for which you
have registered, as outlined on the then-current schedule of fees.
1.9.
"Fee Schedule" shall mean the fees for the 1&1 Services as published on the 1&1
website, which may be modified at any time in 1&1's sole discretion pursuant to
the provisions of 24.1.
1.10.
"International Customers" shall mean customers residing in or accessing the 1&1
Services from outside of the United States and Canada.
1.11.
"Laws" shall mean the laws, statutes, and regulations then in effect of the
United States of America 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
1&1 Services and the laws of any provinces, states or dependencies thereof.
1.12.
"Parties" shall collectively refer to 1&1 and you.
1.13.
"Payment Account" shall refer to the credit card or Pay Pal account provided by
You upon registration to pay for Your Services. 1&1 may add, delete, or modify
the methods by which customers can pay for the 1&1 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 1&1 makes no representations
or warranties with respect to those services.
1.14.
"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.
1.15.
"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.
1.16.
"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 1&1's web
server equipment.
1.17.
"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.
1.18.
"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 1&1 Services and stored on or transmitted by the 1&1 Equipment.
1.19.
"Your Web Site" shall mean data transmittable via the Internet by 1&1 which is
stored in your Web Site Space.
1.20.
"Your Services" shall mean the specific 1&1 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 1&1
Services pursuant to the current Fee Schedule.
2. DESCRIPTION
Subject to and conditioned upon 1&1's retained rights and all other terms and
conditions set forth in this Agreement, 1&1 offers the 1&1 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 1&1
of any unauthorized uses of the account or any other breaches of security. 1&1
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 1&1 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 1&1 Services are subject to the following conditions and
restrictions:
2.1. Web Hosting Services
2.1.1.
1&1 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 1&1's Equipment for purposes consistent with this Agreement.
2.1.2.
1&1, 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. 1&1 is not obligated to provide any Customer Service except as specified
in this Section 2. Any and all requests for additional Customer Service may be
refused by 1&1 with or without reason. Any additional Customer Service which 1&1
may subsequently agree to provide to you shall be at 1&1's sole discretion and
once commenced, may be terminated at any time by 1&1 without notice to you and
without any liability to 1&1. Notwithstanding the foregoing, 1&1 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 1&1.
2.1.3.
1&1, 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 1&1 with or without reason, in its sole discretion.
Any Technical Support which 1&1 may subsequently agree to provide to you shall
be at 1&1's sole discretion and once commenced, may be terminated at any time by
1&1 without notice to you and without any liability to 1&1.
2.1.4.
All use of Web Site Space and provision of services to you by 1&1 shall be
subject to all terms and conditions set forth herein. You may not attempt to
expand or alter these rights or 1&1's services by entering into multiple
agreements.
2.1.5.
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 1&1 may return or reject any and all e-mails sent to you to the
originating sender without liability to you. You agree that 1&1 may debit the
Payment Account for usage in excess of permitted amounts at the rates set forth
in the then-current Fee Schedule.
2.1.6.
Some 1&1 Services may not be available to International Customers, and 1&1
reserves the right to alter, amend, or discontinue the provision of some or all
of the 1&1 Services to International Customers in a particular market at any
time in 1&1's sole discretion.
2.1.7.
1&1 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 1&1 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 5, 6, and 9, you waive any and all clamis
you may have, now and forever, against 1&1 relating to the content, use, and
operation of Your Web Site and agree to indemnify and hold harmless 1&1 from and
against any such claims.
2.1.8.
You are responsible for backing up Your Data on your own computer. 1&1 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, 1&1 will have no
obligation or liability to you.
2.2. Domain Name Registration
2.2.1.
Should you choose to register a domain name through 1&1, 1&1 will register a
second level domain name on your behalf, provided such domain name is available
for registration. 1&1 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 third-party registrars, 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. 1&1 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, 1&1 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 1&1 to debit the Payment Account for any
such fees and costs. Should the Payment Account provider fail to honor such
debit, 1&1 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.
2.2.2.
You acknowledge and agree that 1&1 or its agents, assignees or licensees may
associate any data of any kind, in 1&1'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 1&1 or 1&1'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 1&1 or its
affiliates, including but not limited to 404 error pages.
2.2.3.
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 7.
2.2.4.
You shall inform 1&1 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 1&1 Services, whether through
expiration of the domain name, judicial decree, administrative decisions of the
UDRP or otherwise, you agree to inform 1&1 immediately of the party to whom the
domain name is to be transferred and you authorize 1&1 to take any and all
action necessary to effect such transfer.
2.2.5.
1&1 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 1&1 to debit your Payment Account for
the one-year registration fee and any related fees or charges.
2.2.6.
The Private Domain Registration Services offered by 1&1 are subject to the terms
and conditions of 1&1's Private Registration Service (the "T&C Private Domain
Registration"), which are incorporated herein by reference.
2.2.7.
1&1 may suspend performance under or terminate this Agreement, cease
transmission of data associated with your domain name, permanently remove Your
Data from the 1&1 Equipment, and take any other actions it deems necessary, in
its sole discretion, immediately and without notice, to comply with the UDRP or
relevant Laws if it is informed or otherwise believes, in its sole discretion,
that your domain name violates the intellectual property rights of any third
party or is otherwise the subject of a dispute. As more completely set forth in
Sections 5, 6, and 9, you waive any and all clams you may have, now and forever,
against 1&1 relating to the registration, use, and subsequent transfers of your
domain name and agree to indemnify and hold harmless 1&1 from and against any
such claims.
2.3. Software
2.3.1.
1&1 may, in its sole discretion, provide you with 1&1 Software in combination
with Your Services. Upon payment of all fees due and owing to 1&1 under this
Agreement, 1&1 hereby grants, and you hereby accept, a nontransferable,
revocable, non-sublicensable, and non-exclusive license to use the 1&1 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 1&1. Source code or other information pertaining to the logic
design of the 1&1 Software is specifically excluded from the license granted
hereunder.
2.3.2.
Although certain 1&1 Software may be provided free of charge, 1&1 reserves the
right to charge for the 1&1 Software or any updates thereto or upgrades therefor
at any time.
2.3.3.
You recognize that the 1&1Software and all related information, including but
not limited to any and all updates, improvements, modifications, enhancements,
and information related to installation of the 1&1 Software at your home or
office, are proprietary, and that all rights thereto, including copyright, are
owned by 1&1. You further acknowledge that you have been advised that the 1&1
Software, including updates, improvements, modifications, enhancements, and
information related to installation, constitutes a trade secret of 1&1, is
protected by civil and criminal law, and by the law of copyright, is valuable
and confidential to 1&1, and that its use and disclosure must be carefully and
continuously controlled.
2.3.4.
1&1 shall at all times retain title to all the 1&1 Software and all related
information, including all updates, improvements, modifications and
enhancements, furnished to you hereunder.
2.3.5.
Unless provided otherwise in the specifications for Your Services, the 1&1
Software supplied hereunder is for the your personal or business use. You shall
not permit any third party to use the 1&1 Software or allow access to the 1&1
Software from sites outside of your home or business premises except as
specifically authorized in writing by 1&1. The 1&1 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 2.
2.3.6.
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 1&1
Software, whether such 1&1 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 1&1 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 1&1. In order to protect 1&1's trade secrets and
copyrights in the 1&1 Software, you agree to reproduce and incorporate 1&1's
trade secrets or copyright notice in any copies, modifications or partial
copies.
2.3.7.
You agree to notify 1&1 forthwith if you obtain information as to any
unauthorized possession, use or disclosure of any 1&1 Software by any person or
entity, and further agree to cooperate with 1&1 at 1&1's expense, in protecting
1&1's proprietary rights.
2.3.8.
Unless agreed otherwise in writing by 1&1, the 1&1 Software may be used only on
a single computer or workstation. 1&1 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 1&1 Software on
a network except to facilitate permissible installation of the 1&1 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.
2.3.9.
Certain 1&1 Software is provided for online use as part of the 1&1 Services (the
"1&1 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 1&1
Online Software is hosted software which runs directly on 1&1's servers, and you
may not download, install, store or make any copies of the 1&1 Online Software,
nor may you sublicense the 1&1 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 1&1 Online Software or any copies thereof and not to assist any third party
in doing so. The 1&1 Online Software is designed to be used through the 1&1 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. 1&1 reserves the right to suspend the use of, modify or discontinue
the 1&1 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. 1&1 may limit the functionality of any such
third party Online Software, in its sole discretion.
2.3.10.
1&1 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 1&1 Customers by mail and may be ordered via customer's
control panel for a period of six months after the commencement of the 1&1
Services. The license conditions governing the use of the Third Party Software
may differ from 1&1's own software licenses. Customers of 1&1 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. 1&1
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 1&1 DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN
1&1 MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY
OF SUCH THIRD PARTY SOFTWARE.
2.3.11.
In the event of termination of this Agreement, or upon any act which shall give
rise to 1&1's right to terminate, or upon the expiration of the license for 1&1
Software which is subject to a limited-duration license, any and all licenses
granted under this Section 2.3 shall terminate automatically, and you will
remove, erase or destroy the 1&1 Software and documentation and all copies
thereof, wherever located, without demand or notice.
2.3.12.
1&1 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.
2.3.13.
Software for International Customers is available for download only. Certain
Software (including Third-Party Software) may not be available to International
Customers.
3. FEES
3.1.
Certain 1&1 Services are subject to set-up, service, and domain service fees,
pursuant to the Fee Schedule, and by registering for such 1&1 Services you
authorize 1&1 to debit your Payment Account for any and all such fees.
3.2.
The Fee is due monthly, in advance of the provision of services, not later than
the first of that month. In the event that 1&1 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 1&1'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.
3.3.
All Fees must be paid in United States Dollars in advance of the provision of
services. 1&1 will charge the monthly fee and any additional fees to the Payment
Account unless specifically provided otherwise. You also agree that 1&1 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 1&1 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 1&1.
3.4.
1&1 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.
3.5.
To the extent Your Services are subject to the terms and conditions of 1&1's
Money Back Guarantee (the "T&C Money Back Guarantee"), they are incorporated
herein by reference.
3.6.
1&1 offers a service uptime guarantee for the 1&1 Services, which provides for a
credit to You in the event the total availability of 1&1 hosted web pages falls
below 99.99% ("Uptime"). If You can demonstrate to 1&1's satisfaction, in 1&1's
sole discretion, that 1&1 has failed to maintain the Uptime, You may contact 1&1
and request a credit for that month proportional to the amount of downtime, to
be put towards the purchase of future 1&1 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 1&1 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 1&1'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 1&1 or that are
not reasonably foreseeable by 1&1.
3.7.
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,
which must be paid in full before the account is reactivated.
3.8.
International Customers bear the risk of currency fluctuations and any fees or
taxes associated with the conversation of foreign currencies into United States
Dollars. Certain 1&1 Services will not be available to International Customers
until 1&1 is able to receive satisfactory confirmation from such customer's
Payment Account provider, in 1&1'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.
3.9.
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 unless provided otherwise by applicable local law.
1&1 may, in its sole discretion, refund other amounts as it deems necessary or
advisable.
4. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE
INCONSISTENT WITH YOUR WARRANTIES.
Receipt by 1&1 of data for storage in Web Site Space and/or transmission via
1&1's Equipment which are inconsistent with your warranties set forth in Section
7 herein shall not constitute an agreement by 1&1 to allow the 1&1 Services or
the 1&1 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 1&1's Services or
Equipment, to continue to disseminate such data.
5. NO WARRANTIES BY 1&1.
THE 1&1 SERVICES AND 1&1 SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF
THE 1&1 SERVICES IS AT YOUR SOLE RISK. 1&1 DOES NOT WARRANT THAT THE 1&1SERVICES
WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES 1&1MAKE ANY WARRANTY AS TO ANY
RESULTS THAT MAY BE OBTAINED BY USE OF THE 1&1SERVICES. NO WARRANTY IS MADE BY
1&1 REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN
CONNECTION WITH THIS AGREEMENT, AND 1&1 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. 1&1 DOES
NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL
ACCESSIBLE THROUGH THE 1&1 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.
6. 1&1'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 1&1, 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 1&1 SERVICES. SOME
COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION
OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES
OR JURISDICTIONS, 1&1'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, 1&1 DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR
SERVICE OFFERED OR OTHERWISE ACCESSED USING THE 1&1 SERVICES, AND 1&1 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 1&1 FROM ANY AND ALL
OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE
TOTAL LIABILITY OF 1&1 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 1&1 IN THE
SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $150,000.
7. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES.
7.1.
You agree and warrant that the contact information you have provided to 1&1 is
complete and accurate, and you further agree to notify 1&1 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.
7.2.
You agree to provide 1&1 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 1&1.
7.3.
You agree and warrant that your use of the 1&1 Services and 1&1'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 1&1
Services or 1&1 Equipment, shall at all times comply with all applicable Laws.
7.4.
You agree and warrant that you will neither store on nor allow to be transmitted
by 1&1'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.
7.5.
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.
7.6.
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 1&1, in its sole discretion.
7.7.
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.
7.8.
You agree that if, in 1&1's sole and exclusive judgment, 1&1 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 1&1 may, without prior notice to you
and in 1&1'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
1&1 from either you or any third party.
7.9.
You agree that in the event that 1&1 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 1&1
may, without prior notice to you and in 1&1'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 1&1 from either you or any third
party. As more completely set forth in Sections 5, 6 and 9, you waive any and
all claims you may have, now and forever, against 1&1 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 1&1 from and
against any such claims.
7.10.
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 United States 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 1&1 Services or 1&1'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 1&1 Services or 1&1's Equipment.
7.11.
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.
7.12.
You agree and warrant that Your Data shall not contain or link to any material
which is harmful, violent, threatening, abusive or hateful.
7.13.
You agree and warrant that Your Data and any and all material(s) of every kind
which you transmit using 1&1'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 1&1 Equipment or Web Site or another customer's Web Site
without authorization, or use the 1&1 Services to to carry out, or assist in the
carrying out of, any "denial of service" attacks on any other website or
internet service.
7.14.
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 1&1 reserves the right to
block mail from any source which 1&1 believes, in its sole discretion, is being
used to send such unsolicited e-mail, including but not limited to open mail
relays.
7.15.
You agree and warrant that you shall not engage in any false, deceptive or
fraudulent activities in association with your use of the 1&1 Services or 1&1's
Equipment.
7.16.
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 1&1 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 1&1's Equipment or network. Should your
use of the 1&1 Services result in an overly high load on the 1&1 Equipment, in
1&1's sole discretion, 1&1 may suspend your account until the cause of any such
overload is determined and resolved.
7.17.
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 1&1 Services and that no taxing authorities shall have any claim
against 1&1 or any persons affiliated therewith for the payment of such taxes.
7.18.
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.
7.19.
You agree to comply with all Laws rules regarding online conduct and acceptable
Content.
7.20.
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 U.S. Treasury Department embargo restrictions, and
that you are not listed in the "Entity List" or "Denied Persons List" maintained
by the US Department of Commerce or the list of "Specially Designated Nationals
and Blocked Persons" maintained by the US 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 1&1 Services. Residents of
countries which are serviced by a 1&1 affiliate are required to contract with
those 1&1 affiliates, and you represent and warrant that you are not a resident
of one of those countries.
7.21.
You agree to abide by United States and 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 further agree not to upload to your
1&1 account any data or software that cannot be exported without prior written
government authorization, including, but not limited to, certain types of
encryption software.
7.22.
You agree not to use your IMAP account for the storage of files other than in
the course of normal e-mail usage.
7.23.
You shall not operate a chat room using the 1&1 Services unless expressly
permitted by the terms and conditions of Your Services.
8. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT
8.1
During the course of this Agreement you may gain access to certain confidential,
proprietary and trade secret business or technical information belonging to 1&1
in connection with 1&1's performance of the 1&1 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 1&1, 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 1&1. 1&1 retains all right and title to such
Confidential Information.
8.2
1&1 is a service mark of 1&1 Internet Inc. All rights reserved. The trademarks,
logos, and service marks displayed on this Web Site (collectively, the "Marks")
belong 1&1 and/or its affiliates or third parties which have licensed those
rights to 1&1 ("Partners"); 1&1 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 1&1's Web Site are the property of their respective
owners.
8.3
Unless expressly stated otherwise on the 1&1 Web Site, you should assume that
all content, images, and materials appearing on this Web Site (collectively the
"1&1 Content") are the sole property of 1&1. Both U.S. and international
copyright laws and treaties protect such 1&1 Content. You may not use,
reproduce, display, or sell any 1&1 Content without 1&1's prior written consent.
You may not link to any page within 1&1's Web Site or frame any portion of the
site without 1&1's prior written consent.
9. YOUR INDEMNIFICATION OF 1&1.
You agree that you shall fully defend and indemnify 1&1, 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 7 or your violation of a third party's
intellectual property rights. You further agree to defend, indemnify and hold
harmless 1&1, 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 1&1 shall have the right to
participate in the defense of any such claim through counsel of its own choosing
at your expense.
10. 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 1&1
and you, nor shall anything in this Agreement be construed as constituting or
creating any such agency, joint or collaborative venture, or partnership between
1&1 and you. 1&1 shall have no control or ownership interests of any kind in
your business. 1&1 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 1&1 Services or 1&1's Equipment. 1&1's relationship to you shall be
restricted to matters pertaining to the provision of the 1&1 Services as set
forth in this agreement.
11. 1&1 HAS MADE NO REPRESENTATIONS REGARDING SUCCESS, MARKETS OR PROFITABILITY
11.1.
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 1&1, any agent
or representative of 1&1, 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:
11.1.1.
the potential profitability, marketability, or likelihood of success of your
endeavors through the use of the 1&1 Services or 1&1's Equipment as set forth
herein or otherwise;
11.1.2.
the possibility or likelihood that use of any products and/or services provided
by 1&1 pursuant to this Agreement can or will result in the recoupment of any
funds expended by you for any purpose; or
11.1.3.
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 1&1
Services or 1&1's Equipment pursuant to this Agreement.
11.2.
You expressly acknowledge and agree that the success of any business endeavors
which involve your use, in any manner, of the 1&1 Services and/or 1&1'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 1&1. You further expressly
agree not to raise any claim of any kind against 1&1 and to hold 1&1 harmless
from any claim of financial investment or other loss to you directly or
indirectly resulting from your decision to use the 1&1 Services and/or 1&1's
Equipment pursuant to this Agreement.
12. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by 1&1 pursuant to this
Agreement, including the licensure of rights herein, are non-exclusive and
nothing in this Agreement shall limit or restrict 1&1 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 1&1 from engaging in any activities similar to yours or in
competition with you.
13. NO EDITORIAL CONTROL BY 1&1.
In reliance on your express warranties regarding Your Data, 1&1 shall neither
have nor exert any editorial or other subjective control over the substantive
content of Your Data . 1&1 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. 1&1 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.
14. TERM AND TERMINATION.
14.1.
Unless sooner terminated pursuant to other terms of this Agreement, and 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 14. 1&1 may accept prepayment for services to be provided under
this Agreement, but such acceptance shall not modify or extend the term of this
Agreement.
14.2.
Notwithstanding the provisions of Paragraph 14.1. to the contrary, 1&1 offers
certain Hosting Packages for which the initial term of this Agreement shall be
in excess of one month (the "Extended Term Packages"), at the end of which this
Agreement shall renew automatically on a month-to-month basis pursuant to the
terms of Section 14.1. Any and all service fees for the Extended Term Packages
are due and payable for the entire initial term thereof, and should you
terminate, attempt to terminate, or otherwise default on this Agreement prior to
the end of the initial term you authorize 1&1 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 shall be deemed
a termination and shall entitle 1&1 to the fees owing on the Extended Term
Package. Fees paid for the Extended Term Packages are not refundable unless this
Agreement is terminated by 1&1 without cause pursuant to Section 14.3. or as
otherwise agreed to in writing by 1&1 in its sole discretion.
14.3.
You or 1&1 may terminate this Agreement at any time for any reason, with or
without cause, upon thirty days' written notice. 1&1 may suspend performance
under or terminate this Agreement and cease transmission of data associated with
Your Web Site immediately and without notice:
14.3.1.
if 1&1, 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 7,
14.3.2.
if your Payment Account provider refuses payment of fees or charges or you
refuse authorization for same, or
14.3.3.
if payment for the 1&1 Services is more than fifteen days overdue.
14.4.
You further agree that in the event that 1&1 believes, in its sole discretion,
that you have breached any provision(s) of Section 7 of this Agreement, or any
of its subparts, by storing or allowing material such as that described in the
aforementioned Section 7, or any of its subparagraphs, to be transmitted by
1&1's Equipment, that 1&1 may without any liability to you, and in addition to
any other remedies, erase or purge such materials from 1&1's Equipment without
prior notice to you.
14.5.
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. 1&1 accepts no liability for such
deleted information or content.
15. PRIVACY.
15.1.
It is 1&1's policy to respect your privacy. 1&1 will not monitor, edit, or
disclose any personal information about you or your account, including its
contents, without your prior consent unless 1&1 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 1&1 or its officers, agents,
affiliates, and licensees;
15.1.3.
enforce this Agreement; or
15.1.4.
protect the interests of other 1&1 customers.
15.2.
NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, 1&1 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
1&1 Services. 1&1 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 1&1 Privacy Policy.
15.4.
INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE 1&1 SERVICES ARE PROVIDED
BY 1&1 INTERNET, INC. IN THE UNITED STATES OF AMERICA. THE PERSONAL INFORMATION
WHICH YOU GIVE 1&1 WILL BE TRANSFERRED TO AND MAINTAINED IN THE UNITED STATES
AND ELSEWHERE. IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THE TERMS
AND CONDITIONS FOR THE 1&1 SERVICE. INTERNATIONAL CUSTOMERS FURTHER UNDERSTAND
AND AGREE THAT 1&1 MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR
WEBSITE OR DOMAIN NAMES PURSUANT TO THIS SECTION, AND 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 1&1 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 1&1.
18. NOTICES.
18.1.
1&1 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 1&1. 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 1&1 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 United States mail, 1&1
Internet Inc. 701 Lee Road, Suite 300 Chesterbrook, PA 19087 With a copy to The
Erb Law Firm, PC 5901 Ridge Avenue, Suite 100 Philadelphia, PA 19128;
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 1&1, 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 1&1 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 1&1 shall be deemed effective as of the date
on which 1&1 receives the certified or registered mail notice.
19. FORCE MAJEURE.
19.1.
In the event of "force majeure" (as defined below), 1&1 may terminate this
Agreement without liability to you. For purposes of the Agreement, "force
majeure" shall mean circumstances or occurrences beyond 1&1's reasonable
control, whether or not foreseeable at the time of entering into the Agreement,
in consequence of which 1&1 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 1&1 Services are located or maintained or through which the
1&1 Services are provided, and nonavailability of any permits, licenses and/or
authorizations required by governmental authority.
19.2.
1&1 reserves the right at any time and from time to time to modify or
discontinue, temporarily or permanently, the 1&1 Services (or any part thereof)
with or without notice. You agree that 1&1 shall not be liable to you or to any
third party for any modification, suspension or discontinuance of the 1&1
Services.
20. NO ASSIGNMENT BY YOU; ASSIGNMENT BY 1&1.
This Agreement and the rights pertaining hereto may not be assigned, resold, or
otherwise transferred in whole or in part by you without 1&1'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. 1&1 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 PHILADELPHIA, PENNSYLVANIA IN ACCORDANCE WITH THE RULES
OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC ("JAMS") AND IN ACCORDANCE
WITH THE RULES OF JAMS. Any award arising out of such arbitration shall be
subject to entry as a judgment by any court of competent jurisdiction in the
United States. Any action to confirm or vacate such an award must be brought in
either the Court of Common Pleas of Philadelphia, Pennsylvania or the United
States District Court for the Eastern District of Pennsylvania. 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 1&1 shall
be entitled to collect its attorneys' fees, costs and other expenses in the
event that 1&1 acts to enforce this arbitration and forum selection clause,
regardless of whether 1&1 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
United States of America. 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 1&1 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 1&1 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 either the United States District
Court for the Eastern District of Pennsylvania or the Common Pleas Court of
Philadelphia County Pennsylvania, and each party consents to the in personam
jurisdiction of such Courts for the purpose of any such action or proceeding.
Each party hereby waives all rights it has or which may hereafter arise to
contest such exclusive jurisdiction of the United States District Court for the
Eastern District of Pennsylvania or the Common Pleas Court of Philadelphia
County Pennsylvania.
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 1&1 THAT IS IN ANY WAY RELATED TO THE SUBJECT
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