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Click on a link below in Table of Contents to view.
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ARTICLE I.
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GENERAL USE PROVISIONS
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Section 1.01
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Application.
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Section 1.02
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Definitions.
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Section 1.03
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License and Site
Access.
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Section 1.04
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Terms of Use.
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Section 1.05
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Framing, Metatags
and Linking.
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Section 1.06
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Ownership of
Materials.
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Section 1.07
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Digital Millennium
Copyright Act (DMCA) Policy.
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Section 1.08
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User
Representations.
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Section 1.09
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Grant of Rights.
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Section 1.10
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Disclaimer of
Warranties.
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Section 1.11
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Limitation of
Liability.
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Section 1.12
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Copyright and
Trademark Notices.
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Section 1.13
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Parental Control Protections.
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Section 1.14
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Special Admonitions
for International Use.
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Section 1.15
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Deliveries.
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Section 1.16
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Links or Pointers
to Other Sites.
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Section 1.17
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Removal of
Materials.
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Section 1.18
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Modifications to
Agreement and Services.
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Section 1.19
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Miscellaneous.
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Section 1.20
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Acceptance of
Electronic Contract.
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ARTICLE II.
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SUBSCRIPTION PROVISIONS
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Section 2.01
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General.
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Section 2.02
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Term and Service
Benefits.
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Section 2.03
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Accuracy and
Posting of Information and Materials.
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Section 2.04
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Termination.
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Section 2.05
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Subscription Fees.
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Section 2.06
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Modifications to
Subscriber’s Account.
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Section 2.07
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Breach.
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ARTICLE III.
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HOSTING AGREEMENT
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Section 3.01
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Applicability.
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Section 3.02
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Reserved.
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Section 3.03
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Hosting
Subscriber’s Representations, Warranties and Obligations.
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Section 3.04
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Availability of Services.
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Section 3.05
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Storage and
Security.
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Section 3.06
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Spam Policy.
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ARTICLE IV.
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FINANCIAL
TERMS AND CONDITIONS
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Section 4.01
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Applicability
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Section 4.02
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Currency
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Section 4.03
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Payments
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Section 4.04
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Subscription
Cancellation Refunds.
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Section 4.05
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Download Purchase
Credits
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Section 4.06
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Stale Checks
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Section 4.07
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Gigahitz Deliveries
Refunds
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ACCEPTANCE
OF TERMS THROUGH USE
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By visiting Gigahitz.com (hereinafter the “Site”), submitting
Materials or in any manner availing yourself of any Services offered at, on
or through the Site you signify your agreement to all terms, conditions,
policies and notices contained or referenced in this agreement (hereinafter
the, or this, “Agreement”). If you do not agree with any provision of
this Agreement, do not use the Site or any Service. Your continued use of
the Site or any Service following the posting of any modifications to this
Agreement constitutes your express acceptance of such modifications.
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As between you (whether you are an individual representing
yourself, or acting as the representative for a group, band, business
entity or association) and Gigahitz Ltd., (referred to as "we,"
"us" or “Gigahitz”), this Agreement applies to each and every
service we offer (the "Service"). Some particularized Services
may be subject to additional terms and conditions set forth in separate
agreements. Gigahitz is a UK registered Limited company with its principal
place of business at 25 The Waterfront, Sovereign Harbour, Eastbourne, East Sussex BN23 5UZ. You and Gigahitz may be referred to collectively herein
as the “Parties” and individually as a “Party.”
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ARTICLE I.
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GENERAL USE PROVISIONS
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Section 1.01
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Application.
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This Article I applies to any Person who visits, submits
Material to or in any manner avails themselves of any Service offered at,
on or through the Site (hereinafter a “User”). As set forth herein, the
term, “User” includes, but is not limited to, Subscribers and Hosting
Subscribers.
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Section 1.02
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Definitions.
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(a) For purposes of this Agreement the term, “Artist” shall
refer to any individual or group, whether or not organized as a legal
entity, that made any creative contribution to Materials you post at, on or
through the Site.
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(b) For purposes of this Agreement the term, “Person” shall
refer to any individual, corporation, partnership, association or other
group of persons, whether or not organized as a legal entity, or legal
successors or representatives of the foregoing.
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(c) For purposes of this Agreement the term, “Materials” shall
include but is not limited to: sound recordings, musical compositions,
lyrics, pictures, graphics, photographs, text, videos and other audiovisual
work, album and other artwork, liner notes and all other original works of
authorship.
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Section 1.03
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License
and Site Access.
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Gigahitz grants you a personal, revocable, nontransferable,
and non-exclusive license to access and make personal use of the Site and
to use the object code of the Site on a single computer, subject to the
following terms and conditions:
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(a) You do not, and do not allow any third party to, copy,
modify, create a derivative work from, or attempt to transfer any right in
the software for the Site; and
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(b) You do not download (other than page caching) or modify
the Site or any portion of it, without Gigahitz’s express written consent;
and
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(c) You do not download (other than page caching), modify or
exercise any other exclusive right to any Materials posted on the Site,
without a written license from the owner(s) of such Materials.
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This license expressly excludes any resale or commercial use
of the Site or its contents; any collection or use of any product listings,
descriptions, or prices; any derivative use of the Site or its contents;
any downloading or copying of account information for the benefit of any
merchant; and any use of data mining, robots, or similar data gathering and
extraction tools. Neither the Site nor any portion thereof may be
reproduced, duplicated, copied, sold, resold, visited, or otherwise
exploited for any commercial purpose without Gigahitz’s express written
consent.
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Section 1.04
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Terms
of Use.
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(a) From time to time Gigahitz may post policies on the Site,
including but not limited to our Privacy Policy, and our Copyright DMCA Policy
(the "Policies"). The Policies are incorporated by reference into
this Agreement and you agree to their terms. You should review the Policies
frequently and carefully.
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(b) Gigahitz shall have the right to review all Materials and
in its sole discretion to remove or refuse to post any Materials for any
reason.
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(c) Except for User-posted Materials, the entire Site,
including all object code and source code, text, graphics, multimedia
content, including but not limited to images, illustrations, audio and
video clips, html and other mark up languages, and all scripts within the
Site or associated therewith, is the sole and exclusive property of Gigahitz
Ltd. All rights reserved.
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(d) The Site is protected by all applicable UK and international intellectual property laws. No portion of the Site may be reprinted, republished,
modified or distributed in any form without Gigahitz’s express written
permission. You agree not to reproduce, reverse engineer, decompile,
disassemble or modify any portion of the Site. Certain content may be
licensed from third parties and all such third party content and all
intellectual property rights related to such content belong to the
respective third parties.
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(e) You acknowledge that Gigahitz retains exclusive ownership
of the Site and all intellectual property rights associated therewith.
Except as expressly provided herein, you are not granted any rights or
license to patents, copyrights, trade secrets or trademarks with respect to
the Site or any Service, and Gigahitz reserves all rights not expressly
granted hereunder. You shall promptly notify Gigahitz in writing upon your
discovery of any unauthorized use or infringement of the Site or any
Service or Gigahitz' patents, copyrights, trade secrets, trademarks or
other intellectual property rights. The Site contains proprietary and confidential
information that is protected by copyright laws and international treaty
provisions.
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(f) Violations of this Agreement may result in civil or
criminal liability. We have the right to investigate occurrences, which may
involve such violations and may involve, provide information to and
cooperate with, law enforcement authorities in prosecuting users who are
involved in such violations.
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(g) Subject to our Privacy Policy, no information or
Material uploaded or sent to Gigahitz at, on or through the Site will be deemed
or treated as confidential. This excludes the results of surveys where
specified as password protected.
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(h) You agree to comply with the Acceptable Use Policy (“AUP”)
of any vendor providing bandwidth or related services to Gigahitz,
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Section 1.05
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Framing,
Metatags and Linking.
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Framing and Metatags.
You may not frame or use framing techniques to enclose any Gigahitz
trademark, logo, or other proprietary information (including but not
limited to images, text, page layout, and form) without Gigahitz’s express
written consent. You may not use any metatags or any other "hidden
text" using Gigahitz’s name or trademarks without Gigahitz’s express
written consent. Any such unauthorized use shall result in the immediate
and automatic termination of all permission, rights and/or licenses granted
to you by Gigahitz and may also result in such additional action as Gigahitz
deems necessary to protect and enforce its legal rights.
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Linking: Custom Homepage Links NB TO BE
DELETED IF NO HOSTING SERVICE OFFERED
If you are a Hosting Subscriber as defined under Section 3.01 of this
Agreement you are granted a personal limited, revocable, nonexclusive,
nontransferable license to create and use your Custom Homepage Link subject
to your full compliance with all terms and conditions of this Agreement and
all Policies, and further subject to the following:
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1. Hosting Subscriber
expressly acknowledges that Gigahitz is the sole and exclusive owner of the
registered trademark, GIGAHITZ®.
2. Hosting Subscriber
expressly acknowledges that this license is granted in consideration of and
is conditioned upon Hosting Subscriber’s full compliance with the terms and
conditions of this Agreement and all Policies appearing on the Site.
3. This license shall
terminate immediately upon expiration or termination of Hosting
Subscriber’s hosting subscription or Gigahitz membership or if, in Gigahitz’s
absolute discretion and without the necessity of written notice, Hosting
Subscriber has failed to comply with any of the terms or conditions of this
Agreement or any Policies appearing on the Site.
4. Hosting Subscriber
agrees to display the following disclaimer prominently at the foot of the
home page of Hosting Subscriber’s Website: “Hosted by Gigahitz. [Hosting
Subscriber’s Name Here] is not affiliated with Gigahitz Ltd. and Gigahitz
bears no responsibility for the content or use of this site.”
5. Without in any way
limiting Hosting Subscriber’s covenants or obligations under the Hosting
Subscription Agreement, Hosting Subscriber warrants and represents that:
a. No use of Hosting
Subscriber’s Custom Homepage Link and no content on Hosting Subscriber’s
Website will dilute, tarnish, blur or otherwise diminish the value of the GIGAHITZ®
mark; and
b. Hosting Subscriber
will not use, publish or advertise the Custom Homepage Link for any purpose
other than identifying the location of Hosting Subscriber’s Website; and
c.
Upon
Gigahitz’s request Hosting Subscriber will provide Gigahitz with hard copy
samples of any and all advertising, promotional and other tangible
materials bearing the Custom Homepage Link, and will provide Gigahitz with
URLs to any sites or materials anywhere on the Internet pointing to,
linking to or otherwise referring to the Custom Homepage Link.
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Linking: Other
You are granted a limited, revocable, nonexclusive license to create a
hyperlink to Gigahitz’s home page, provided that you comply with all of the
following:
1. The link must be a
text-only link clearly marked "Gigahitz.com" or "www.Gigahitz.com";
2. The link must
"point" to the URL "http://www.Gigahitz.com" and not to
any other page within the Site;
3. The link, when
activated by any user, must display the Site full-screen and not within a
"frame" on the linking site;
4. The link shall not
portray Gigahitz or its products or services in a false, misleading,
derogatory, or otherwise offensive matter;
5. The link may not
use any Gigahitz logo or other proprietary graphic or trademark as part of
the link without Gigahitz’s prior express written permission; and
6. The appearance,
position and other aspects of the link must not be such as to damage or
dilute the goodwill associated with our name and trademarks or create any
false appearance that we are associated with or sponsor the linking site.
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We reserve the right to revoke our consent to any link at any
time in our sole discretion.
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Section 1.06
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Ownership
of Materials.
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You shall retain full ownership of any and all Materials you
submit to Gigahitz, at all times, subject only to the rights and licenses
you grant to Gigahitz pursuant to this Agreement or any other applicable
agreement. If you believe that Materials in which you hold an ownership
interest have been posted to the Site or otherwise submitted to Gigahitz
without your permission, you must, and hereby agree, immediately to notify Gigahitz’s
Copyright Agent.
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Section 1.07
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Digital
Millennium Copyright Act (DMCA) Policy.
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UK law limits liability for copyright infringement by service
providers if the service provider has designated an agent for notification
of claimed infringement by providing contact information to the Copyright
Office and through the service provider’s website.
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Gigahitz has designated an agent to receive notification of
alleged copyright infringement (our agent is identified below).
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How to report a claim of infringement
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If you believe that Material on the Site violates any of your
exclusive rights under United Kingdom copyright law, you must notify our
designated agent. Section 512 (c)(3)(A) requires that to be valid, your
claim of copyright infringement must be written and addressed to
our agent (identified below) and must provide the following
information (the list below comes straight from the statute; if you do
not understand the language please seek independent advice):
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i.
A
physical or electronic signature of a person authorized to act on behalf of
the owner of an exclusive right that is allegedly infringed.
ii.
Identification
of the copyrighted work claimed to have been infringed, or, if multiple
copyrighted works at a single online site are covered by a single
notification, a representative list of such works at that site.
iii.
Identification
of the material that is claimed to be infringing or to be the subject of
infringing activity and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit the service
provider to locate the material.
iv.
Information
reasonably sufficient to permit the service provider to contact the
complaining party, such as an address, telephone number, and, if available,
an electronic mail address at which the complaining party may be contacted.
v.
A
statement that the complaining party has a good faith belief that use of
the material in the manner complained of is not authorized by the copyright
owner, its agent, or the law.
vi.
A
statement that the information in the notification is accurate, and under
penalty of perjury, that the complaining party is authorized to act on
behalf of the owner of an exclusive right that is allegedly infringed.
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When filing an infringement claim, please include any URLs
identifying the allegedly infringing Material along with any other
information that might assist our agent’s investigation of your claim.
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Upon receipt of a valid claim (i.e., a claim in which all
required information is substantially provided) Gigahitz will undertake to
have the disputed Material removed from public view. We will also notify
the user who posted the allegedly infringing Material that we have removed
or disabled access to that Material. Gigahitz has no other role to play
either in prosecuting or defending claims of infringement, and cannot be
held accountable in any case for damages, regardless of whether a claim of
infringement is found to be true or false.
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Please note: If you materially misrepresent that Material
infringes your copyright interests, you may be liable for damages (including
court costs and lawyers fees) and could be subject to criminal prosecution
for perjury.
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How to make a counter notification
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If you are a Gigahitz user and you feel that Material that you
have placed online that has been removed following an infringement
complaint is in fact NOT an infringement, you may file a counter
notification. Section 512 (g)(3) requires that to be valid, the counter
notification must be written and addressed to our agent
(identified below) and must provide the following information
(again, the list below comes straight from the statute; if you do not
understand the language please seek independent advice):
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i.
A
physical or electronic signature of the subscriber.
ii.
Identification
of the material that has been removed or to which access has been disabled
and the location at which the material appeared before it was removed or
access to it was disabled.
iii.
A
statement under penalty of perjury that the subscriber has a good faith
belief that the material was removed or disabled as a result of mistake or
misidentification of the material to be removed or disabled.
iv.
The
subscriber's name, address, and telephone number, and a statement that the
subscriber consents to the jurisdiction of Federal District Court for the
judicial district in which the address is located, or if the subscriber's
address is outside of the United Kingdom, for any judicial district in
which the service provider may be found, and that the subscriber will
accept service of process from the person who provided notification under
subsection (c)(1)(C) or an agent of such person.
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Our designated agent will present your counter notification to
the person who filed the infringement complaint. Once your counter
notification has been delivered, Gigahitz is allowed under the provisions
of Section 512 to restore the removed Material in not less than ten or more
than fourteen days, unless the complaining party serves notice of intent to
obtain a court order restraining the restoration.
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It is Gigahitz’s policy to terminate subscribers and account
holders who are found to be repeat infringers.
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Gigahitz’s Designated Agent
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Gigahitz’s designated agent is to be appointed
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By mail:
Gigahitz Inc.
Attn: to be appointed
By phone:
By fax:
By e-mail: legal@Gigahitz.com
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Section 1.08
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User
Representations.
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By accepting this Agreement and/or submitting Materials to Gigahitz,
you expressly warrant and represent the following to Gigahitz and
acknowledge that Gigahitz is relying upon such warranties and
representations:
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(a) That all factual assertions you have made and will make to
us are true and complete; that you have reached the age of majority and are
otherwise competent to enter into contracts in your jurisdiction; and that
in any event you are at least 18 years of age.
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(b) That you have obtained and hold all rights, approvals,
consents, licenses and/or permissions, in proper legal form, necessary to
submit Materials on the terms provided herein and to grant Gigahitz the
nonexclusive licenses set forth herein.
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(c) That no other rights, approvals, consents, licenses and/or
permissions are required from any other person or entity to submit your
Materials on the terms provided herein or to grant Gigahitz the
nonexclusive licenses set forth herein.
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(d) That your Materials are original; that your Materials were
either created solely by you or, by written assignment, you have acquired
all worldwide intellectual property rights in and to your Materials; that if
your Materials contain any "samples" or excerpts from
copyrightable work the rights to which are owned in whole or in part by any
person or entity other than you, that you have obtained and hold all
rights, approvals, consents, licenses and/or permissions, in proper legal
form, necessary to use and include such work in your Materials; and that
your Materials do not otherwise infringe on the intellectual property
rights of any person or entity.
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(e) That neither your Materials nor any comments or reviews
you post on the Site violate any common law or statutory patent, copyright,
privacy, publicity, trademark or trade secret rights of any person or
entity and are not libelous, defamatory, obscene or otherwise actionable at
law or equity.
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(f) That you have neither intentionally nor with gross
negligence submitted any Materials containing or producing any virus or
other harmful code or other information that could damage or otherwise
interfere with our computer systems or data and/or that of our customers.
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(g) You agree to sign and deliver to Gigahitz any additional
documents that Gigahitz may request to confirm Gigahitz’s rights and your
warranties and representations under this Agreement.
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(h) You acknowledge that Gigahitz is relying upon the representations,
warranties and covenants you have made herein. You agree to and hereby do
indemnify Gigahitz, its licensees, assigns and customers against, and hold
them harmless from, any loss, expense (including reasonable attorney fees
and expenses), or damage occasioned by any claim, demand, suit, recovery,
or settlement arising out of any breach or alleged breach of any of the
representations, warranties or covenants made herein or arising out of any
failure by you to fulfill any of the representations, warranties, or
covenants you have made herein.
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(i) All representations, warranties or covenants made herein
by you shall survive termination of this Agreement.
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(j) All warranties and representations made by you herein are
made for the benefit of Gigahitz and its sub-licensees and may be enforced
separately by Gigahitz and/or by any contractually designated sub-licensee
of Gigahitz.
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Section 1.09
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Grant
of Rights.
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In consideration of Gigahitz's efforts to provide your work
with public exposure, you expressly authorize Gigahitz and its
sub-licensees to transmit, stream, broadcast, publicly display and publicly
perform in any manner, form or media whether now known or hereafter
devised, any of the Materials you submit to Gigahitz, in accordance with
the provisions of this section. Without limitation to other licenses you
may be inferred to have granted in order to accomplish the foregoing, you
expressly grant Gigahitz and its sub-licensees the following licenses with
respect to any and all Materials you submit.
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Public performance license for compositions. If you are a
member of the Performing Rights Society or one of its foreign affilates,
you will be compensated in accordance with its royalty distribution rules
for performances of your musical compositions on the Site that originate in
the United Kingdom. For any performances that originate outside of the United Kingdom, you hereby grant Gigahitz and its sub-licensees a nonexclusive, direct
license to publicly perform all musical compositions included in your
Materials, worldwide.
If you are not a member of a performing rights society, you hereby
grant Gigahitz and its sub-licensees a nonexclusive, direct license to
publicly perform all musical compositions included in your Materials,
worldwide.
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Public performance license for sound recordings. You hereby grant Gigahitz
and its sub-licensees a nonexclusive license to publiccy perform by means
of digital audio transmission all sound recordings included in your
Materials, worldwide.
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Reproduction licenses for compositions and sound recordings. Although copyright
law is evolving to accommodate the digital environment, certain key issues
remain unresolved. One such issue is the extent to which reproduction
licenses are required for compositions and sound recordings made available
on interactive streaming services. We choose to resolve the issue
contractually, until statutory or case law provides more definitive
guidance. Accordingly, you hereby grant Gigahitz and its sub-licensees
nonexclusive reproduction licenses for all compositions and sound
recordings included in your Materials; provided, however, that unless by
separate agreement you have chosen to make your Materials available for
sale through Gigahitz’s digital download store, such reproduction licenses
are limited in scope and apply only to the extent necessary to make your
Materials publicly available via Gigahitz’s interactive streaming services.
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Podcasts. From time to time Gigahitz may invite you to submit
your Materials for inclusion in downloadable content files known as
“podcasts.” Podcasts are non-live entertainment programs spotlighting the
work of Gigahitz members and are made available for download in unprotected
media, free of charge, at the Site. Gigahitz will not include your
Materials in podcasts without your consent. If you choose to grant such
consent, however, you also (and hereby do) grant to Gigahitz and its
sub-licensees all licenses reasonably required for podcasting, including
nonexclusive reproduction and public performance licenses for all
compositions, and nonexclusive reproduction and public performance licenses
for all sound recordings, embodied in any Materials of yours selected for
inclusion in Gigahitz podcasts. You further release Gigahitz and its
sub-licensees for any and all liability arising from any alleged failure by
Gigahitz or any of its sub-licensees to obtain appropriate licenses for the
use of any Materials of yours selected for inclusion in Gigahitz podcasts.
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Sub-licensees designated by Gigahitz to transmit, stream,
broadcast, publicly display and/or publicly perform your Materials may pay
a fee to Gigahitz for facilitating access to such Materials and you hereby
agree that Gigahitz shall be entitled to collect and retain 100% of all
such facilitation fees without any obligation to you.
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Gigahitz shall have the right and license to use, and license
others to use, your Materials for the purpose of promoting our products and
services, and to use all names, likenesses, biographical materials, logos,
marks or trade names of you and all individuals performing on or otherwise
represented in your Materials without any payment to you or any other
Persons, entities, groups or associations, in accordance with the
provisions of this section. All rights and licenses you grant to Gigahitz
pursuant to this Section shall terminate when, in accordance with this
Agreement, you exercise your right to request removal of any or all
Materials.
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Section 1.10
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Disclaimer
of Warranties.
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(a) You acknowledge that the Site may from time to time
encounter technical or other problems and may not necessarily continue
uninterrupted or without technical or other errors and that Gigahitz shall
not be responsible to you or others for any such interruptions, errors or
problems or for discontinuance of any Gigahitz Service. Gigahitz provides
no assurances whatever that any of your Materials will ever be accessed or
used by Gigahitz, its visitors, Subscribers or sub-licensees nor, if so
accessed or used, that your Materials will continue to be available for any
particular length or period of time.
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(b) A possibility exists that the Site or any Service could
include inaccuracies or errors, or information or materials that violate
this Agreement. Additionally, a possibility exists that unauthorized
alterations could be made by third parties to the Site or any Service.
Although we attempt to ensure the integrity of the Site and every Service,
we make no guarantees as to their completeness or correctness. In the event
that a situation arises in which the Site's or any Services’ completeness
or correctness is in question, you agree to contact us including, if
possible, a description of the material to be checked and the location
(URL) where such material can be found, as well as information sufficient
to enable us to contact you. We will make best efforts to address your
concerns as soon as reasonably practicable. For copyright infringement
claims, see Gigahitz’s Digital Millennium Copyright
(DMCA) Policy, set forth in Section 1.07 of this Agreement.
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(c) The Site and any Service may be discontinued at any time,
with or without reason or cause.
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(d) Gigahitz disclaims any and all responsibility for the
deletion, failure to store, misdelivery or untimely delivery of any
information or Material. Gigahitz disclaims any and all responsibility for
harm resulting from downloading or accessing any information or Material on
the Internet or through the Site.
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(e) THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED
WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED “AS IS,” WITH NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. TO
THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GIGAHITZ AND ITS
AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND
FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM
COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. GIGAHITZ AND
ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS
DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SECURITY, RELIABILITY,
TIMELINESS, AND PERFORMANCE OF ANY GIGAHITZ SERVICE. GIGAHITZ AND ITS
AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM
ANY AND ALL WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE
SITE. NO OPINION, ADVICE OR STATEMENT OF GIGAHITZ OR ITS AFFILIATES,
LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS,
WHETHER MADE ON THE SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY. GIGAHITZ
AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS
DISCLAIM ANY AND ALL WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR
ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS APPEARING ANYWHERE ON
THE SITE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY
LINKS PROVIDED ANYWHERE ON THE SITE.
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(f) GIGAHITZ AND ITS AFFILIATES, LICENSORS, SUPPLIERS,
ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SITE
WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE
CORRECTED, OR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS HOSTED
ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU
ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER
HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL
CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR
USE OF THE SITE AND ANY SERVICE AND YOUR RELIANCE THEREON. YOU UNDERSTAND
AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL, INFORMATION OR
DATA THROUGH THE USE OF THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT
YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR
LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL, INFORMATION
OR DATA.
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Section 1.11
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Limitation
of Liability.
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(a) NEITHER GIGAHITZ NOR ANY OF OUR AFFILIATES, LICENSORS,
SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES (TOGETHER, FOR
PURPOSES OF THIS SECTION, “GIGAHITZ”), ARE RESPONSIBLE OR LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER
DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS
OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, WARRANTY, STRICT
LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO USE OR
MISUSE OF OR RELIANCE ON THE SITE OR ANY GIGAHITZ SERVICE OR ANY LINKED
SITE, EVEN IF GIGAHITZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND IN NO EVENT SHALL GIGAHITZ’S TOTAL CUMULATIVE LIABILITY UNDER THIS
AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE.
SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE
OR MISUSE OF AND/OR RELIANCE ON THE SITE OR ANY GIGAHITZ SERVICE, FROM
INABILITY TO USE THE SITE OR ANY GIGAHITZ SERVICE, OR FROM THE
INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SITE OR ANY GIGAHITZ
SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION
SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER
SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED
THROUGH ANY LINKS PROVIDED AT, IN OR THROUGH THE SITE, AS WELL AS BY REASON
OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SITE OR
RECEIVED THROUGH ANY LINKS PROVIDED ON THE SITE OR ANY GIGAHITZ SERVICE.
THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, AND LOST DATA.
SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR
NONPERFORMANCE OF THE SITE OR ANY GIGAHITZ SERVICE OR ANY INFORMATION OR
MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE
SITE OR ANY GIGAHITZ SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST
EXTENT PERMITTED BY LAW.
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(b) WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES
SHALL GIGAHITZ BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE
RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES
BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET
FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT
FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES,
LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR
OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, EPIDEMIC,
WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR
TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN
HEAT, LIGHT, OR AIR CONDITIONING.
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Section 1.12
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Copyright
and Trademark Notices.
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(a) All content included on this Site, including but not
limited to text, graphics, logos, button icons, images, data compilations,
code and source code, multimedia content, including but not limited to
images, illustrations, audio and video clips, html and other mark up
languages, and all scripts within the Site or associated therewith, are the
property of Gigahitz or its content suppliers and is protected by United
Kingdom and international copyright laws with All Rights Reserved. The
compilation of all content on this Site is the exclusive property of Gigahitz
and is protected by United Kingdom and international copyright laws with
All Rights Reserved. All software used on this site is the property of Gigahitz
or its software suppliers and is protected by United Kingdom and
international copyright laws with All Rights Reserved.
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(b) “Gigahitz®,” and other trademarks, service marks, logos,
labels, product names and service names appearing on the Site
(collectively, the “Marks”) are owned or licensed by Gigahitz. Marks not
owned by Gigahitz or its subsidiaries are the property of their respective
owners, who may or may not be affiliated with, connected to, or sponsored
by Gigahitz.
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(c) You agree not to copy, display or otherwise use any Marks
without Gigahitz’s prior written permission. The Marks may never be used in
any manner likely to cause confusion, disparage or dilute the Marks and/or
in connection with any product or service that is not authorized or
sponsored by Gigahitz.
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Section 1.13
|
Parental
Control Protections.
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We hereby notify you that parental control protections (such
as computer hardware, software or filtering services) are commercially
available that may assist you in limiting access to material that is
harmful to minors. Information identifying current providers of such protections
is available at http://internet-filter-review.toptenreviews.com/
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Section 1.14
|
Special
Admonitions for International Use.
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(a) We make no representation that products or services
available on or through the Site or any Service are appropriate or
available for use in other locations other than the United Kingdom. Those who choose to access the Site or any Service from other locations do so on
their own initiative and at their own risk, and are responsible for
compliance with local laws, if and to the extent local laws are applicable.
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(b) Products, including software, made available through the
Site or any Service are further subject to United Kingdom export controls.
You agree to comply with all applicable laws regarding the transmission of
technical data exported from the United Kingdom or the country in which you
reside. We reserve the right to limit the availability of the Site and/or
any Service or product described thereon to any person, geographic area or
jurisdiction, at any time and in our sole discretion, and to limit the
quantities of any such Service or product that we provide.
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Section 1.15
|
Deliveries.
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From time to time, Gigahitz may sponsor contests and games
(hereinafter, "Gigahitz Contests"). All Gigahitz Contests are
governed by specific rules. By entering Gigahitz Contests you accept and
become subject to such rules. Such rules supplement, incorporate by
reference and are to be read together with and not to limit the provisions
of this Agreement. Any conflicts or inconsistencies between Gigahitz Contest
rules and this Agreement shall be resolved on a case-by-case basis. We urge
you to read the applicable rules, which are linked from each particular Gigahitz
Contest, and to review our Privacy Policy which, in addition to this
Agreement, governs any related information you submit.
By contract, Gigahitz may also provide certain services (including, without
limitation, advertising, promotion and submission processing services) for
contests, radio play, and publishing and licensing opportunities that are
supplied by others (hereinafter, "Third Party Destinations"). Gigahitz
bears no responsibility, and hereby disclaims all liability, for any aspect
of any Third Party Destination, including but not limited to the awarding
of prizes and licensing and publishing placements. Any claim you may have
regarding a Third Party Destination must be pursued exclusively with the
individual or group, whether or not organized as a legal entity, that
supplied the Third Party Destination (“Destination Provider”).
Third Party Destinations may be governed by specific rules. Gigahitz plays
no role in the development or enforcement of rules for Third Party
Destinations and is not a party to any contract such rules may be deemed to
create with Artists who submit their Materials to Third Party Destinations.
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Section 1.16
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Links
or Pointers to Other Sites.
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Without in any way limiting any other provisions of this
Agreement, Gigahitz makes no representations whatsoever about any other
website that you may access through the Site. When you access another
website, you understand that it is entirely independent from this Site, and
that Gigahitz has no control over the content of such website nor of its
policies. In addition, a hyperlink to another website does not mean that Gigahitz
endorses or accepts any responsibility for the content, use or policies of
the linked website or that the policies of that website are consistent with
our policies or the terms and conditions of this Agreement. We strongly
encourage you to become familiar with the terms of use and practices of any
linked site. Further, it is up to you to take precautions to ensure that
whatever links you select or software you download, from any site whatever,
is free of such items as viruses, worms, trojan horses, defects, date
bombs, time bombs and other items of a destructive nature.
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Section 1.17
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Removal
of Materials.
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Upon receipt of your written request, Gigahitz will remove any
of your Materials from the Site within a reasonable period of time. Gigahitz’s
licenses to use such Materials will continue for any copies of such
Materials that may have been disseminated in any format or media prior to
the actual removal of such Materials from the Site.
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Section 1.18
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Modifications
to Agreement and Services.
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You agree that, at any time, Gigahitz may revise, change or
modify any terms and conditions of this Agreement and/or any aspect of any
Service, without notice to you. You can review the most current version of
this Agreement at any time at: http://www.Gigahitz.com. When using any
Service, you and Gigahitz shall also be subject to any guidelines, Policies
or rules applicable to such Service which may be posted on the Site from
time to time. All such guidelines, Policies or rules are hereby
incorporated by reference into this Agreement and you agree to their terms.
Any such revisions, changes or modifications shall be binding and effective
immediately upon posting of same to the Site.
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Section 1.19
|
Miscellaneous.
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(a) Your rights under this Agreement are not assignable and
any attempt by your creditors to obtain an interest in your rights under
this Agreement, whether by attachment, levy, garnishment or otherwise,
renders this Agreement voidable at Gigahitz’s option.
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(b) This Agreement is binding on the Parties and their
respective heirs, legatees, executors, successors and assigns. Except for
Policies and other agreements incorporated by reference herein, this
Agreement is the entire agreement between the Parties and supersedes all
prior written or oral agreements between the Parties relating to the
subject matter hereof. If any portion of this Agreement is found to be void
or unenforceable, the remaining portion shall be enforceable with the invalid
portion removed, giving all reasonable construction to permit the essential
purposes of the Agreement to be achieved. The Parties’ various rights and
remedies hereunder shall be construed to be cumulative.
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(c) This Agreement shall be deemed to have been made in the United Kingdom and it shall be governed by the substantive laws of the United Kingdom without regard
to any applicable conflict of laws provisions.
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(d) Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to law. Nothing in this
Agreement shall be construed or deemed to create any partnership, agency,
joint venture, employment or franchise relationship between the Parties.
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(e) Each Party hereto agrees to execute all further and additional
documents as may be necessary or desirable to effectuate and carry out the
provisions of this Agreement.
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(f) Captions and headings used in this Agreement are for
purposes of convenience only and shall not be deemed to limit, affect the
scope, meaning or intent of this Agreement, nor shall they otherwise be
given any legal effect.
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(g) No breach of this Agreement by Gigahitz shall be deemed
material unless the Party alleging such breach shall have given Gigahitz
written notice of such breach, and Gigahitz shall fail to cure such breach
within thirty (30) days after its receipt of such notice.
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(h) All notices required to be sent to Gigahitz under this
Agreement shall be in writing and shall be sent by certified mail, return
receipt requested, postage paid, or by overnight delivery service, to Gigahitz
Ltd, 25 The Waterfront, Sovereign Harbour Eastbourne East Sussex BN23 5UZ (or
such other address or addresses as may be designated by Gigahitz herein).
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(i) All duties, liabilities, obligations, warranties,
representations, covenants, authorizations, agreements and restrictions
undertaken by and/or imposed upon you in connection with this Agreement
shall be deemed to apply jointly and severally to all members collectively
and each member individually of any group at any time comprising the Artist
whose recordings or other Materials you post, upload or otherwise make
available to Gigahitz.
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(j) You agree that regardless of any statute or law to the
contrary, any claim or cause of action arising out of or related to use of
the Site or any Service must be filed within one (1) year after such claim
or cause of action arose or be forever barred.
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(k) You agree to defend, indemnify and hold Gigahitz harmless
against any losses, expenses, costs or damages (including any reasonable lawyers'
fees and costs) arising from, incurred as a result of, or in any manner
related to any claim or action based upon (a) your breach of the terms and
conditions of this Agreement, (b) your use of any Service, and/or (c) the
use of any Service by any other person using your Username. Gigahitz may
participate in the defense of any such claim or action and any negotiations
for its settlement or compromise. No settlement which may adversely affect
our rights or obligations shall be made without our prior written approval.
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Section 1.20
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Acceptance
of Electronic Contract.
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You agree that this Agreement has the same legal force and
effect as a written contract with your written signature and that it
satisfies any laws that require a writing or signature, including any
applicable Statute of Frauds. You further agree that you shall not
challenge the validity, enforceability or admissibility of this Agreement
on the grounds that it was electronically transmitted or authorized. A
printed version of this Agreement shall be admissible in judicial or
administrative proceedings based upon or relating to the Agreement to the
same extent and subject to the same conditions as other business documents
and records originally generated and maintained in printed form. You
acknowledge that you have had the opportunity to print this Agreement.
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ARTICLE II.
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SUBSCRIPTION PROVISIONS
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Section 2.01
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General
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(a) This Article II applies to any Person (hereinafter a
“Subscriber”) who subscribes to any member subscription service offered by Gigahitz.
For purposes of this Agreement all Subscribers are also Users as defined
herein.
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(b) You agree to provide true, accurate, current and complete
information about yourself as prompted by the subscription registration
processes (such information being your "Account Information").
You further agree that, in providing such Account Information, you will not
knowingly omit or misrepresent any material facts or information and that
you will promptly enter corrected or updated Account Information, or
otherwise advise us promptly in writing of any such changes or updates. You
further consent and authorize us to verify your Account Information as
required for your use of and access to the Site and any Service, as
applicable.
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(c) As a Subscriber, you will receive a unique username and
password in connection with your account (collectively referred to herein
as your "Username"). You agree that you will not allow another
person to use your Username to access and use the Site or any Service under
any circumstances. You are solely and entirely responsible for maintaining
the confidentiality of your Username and for any charges, damages,
liabilities or losses incurred or suffered as a result of your failure to
do so. Gigahitz is not liable for any harm caused by or related to the
theft of your Username, your disclosure of your Username, or your
authorization to allow another person to access and use the Site or any
Service using your Username. Furthermore, you are solely and entirely
responsible for any and all activities that occur under your account,
including, but not limited to, any charges incurred relating to the Site or
any Service. You agree to immediately notify us of any unauthorized use of
your account or any other breach of security known to you. You acknowledge
that the complete privacy of your data transmitted while using the Site or
any Service cannot be guaranteed.
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Section 2.02
|
Term
and Service Benefits.
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The term of any Subscription Service shall commence when the
Subscriber initiates payment for such Subscription Service or, if the
Subscription Service is complimentary, when the Subscriber registers for
such Subscription Service. All Subscription Services will extend for an
initial period of one year (the "Term") and, unless terminated as
provided herein, shall renew automatically for successive one-year periods.
During the Term, the Subscriber shall be afforded the full use and benefit
of the applicable Subscription Service as described on the Site (the "Service
Benefits"), which Service Benefits may be revised by Gigahitz from
time to time without notice to the Subscriber. Due to technical
considerations, certain Service Benefits may not be available to the
Subscriber immediately upon commencement of the Term, but shall be provided
to the Subscriber as soon as commercially reasonable. Please direct any
questions about Subscription Services or Service Benefits to Gigahitz by
email at: customerservice@Gigahitz.com
or by mail at: Gigahitz Ltd, 25 The Waterfront Sovereign Harbour Eastbourne
East Sussex BN23 5UZ, Attn: Customer Service.
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Section 2.03
|
Accuracy
and Posting of Information and Materials.
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The Subscriber agrees to:
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(a) provide current, complete and accurate information about
the Subscriber as required by the application process; and
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(b) maintain and update such information as needed to keep it
current, complete and accurate.
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Subscriber acknowledges that Gigahitz relies and will rely
upon the accuracy of such information as supplied by Subscriber.
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Section 2.04
|
Termination.
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(a) Termination by Subscriber. Subscriber may terminate any
Subscription Service at any time by providing Gigahitz with written notice
pursuant to this Agreement. Such termination will be effective after the
paid period. In the case of termination by the Subscriber, the period that
is already paid for will not be reimbursed. The Subscription Service will
remain active until the end of the paid period.
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Subscriber’s request for termination shall also be deemed a
request for the removal of all Material posted on the Site, pursuant to Section 1.17 of this
Agreement.
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Gigahitz is not bound by, nor should Subscriber rely upon, any
representation by any agent, representative or employee of any third party
that Subscriber might use to apply for a Subscription Service.
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(b) Termination by Gigahitz. Gigahitz may terminate a
Subscriber’s Subscription Service at any time, for any reason, by providing
Subscriber with written notice thereof, effective upon transmitting such
notice to the email address Subscriber supplied to Gigahitz. In the event Gigahitz
terminates a Subscriber’s Subscription Service due to Subscriber’s failure
to meet the terms and conditions of this Agreement, Gigahitz will not
refund any portion of Subscriber’s annual subscription fee and, if
Subscriber has chosen to participate in a Payment Plan offered for such
Subscription Service, Gigahitz will immediately bill, in total, any
remaining balance due and owing to Gigahitz, to Subscriber’s credit card.
If Gigahitz chooses to terminate a Subscriber’s Subscription Service for
reasons unrelated to the Subscriber, Gigahitz will refund to Subscriber the
portion of any annual subscription fee for which Gigahitz has not yet
performed or provided services.
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(c) Cancellation refunds are governed by the provisions of Section 4.04 of this
Agreement.
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Section 2.05
|
Subscription
Fees.
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(a) As consideration for a Subscription Service, Subscriber
agrees to pay Gigahitz all applicable subscription fees as posted on the
Site at the time Subscriber applies for the Subscription Service. All
subscription fees are due immediately pursuant to the payment option
Subscriber chooses, and are non-refundable except as otherwise provided
herein. Gigahitz may exercise all available remedies to collect fees due
and owing for any Subscription Service.
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(b) Gigahitz may, at its sole discretion and for any
Subscription Service, offer Subscriber the option to pay Subscriber’s
annual subscription fee in monthly installments (a “Payment Plan”). If
Subscriber elects a Payment Plan, Subscriber agrees to provide Gigahitz with
a valid credit card number, which Gigahitz will charge on a monthly basis
for twelve (12) consecutive months, in an amount each month equal to 1/12th
of the subscription fee for the Subscription Service, until the
Subscription Service is terminated pursuant to this Agreement. By providing
credit card billing information, Subscriber shall be authorizing Gigahitz
to charge that credit card until termination of the Subscription Service. Gigahitz
shall have the right immediately to discontinue Subscriber’s Service
Benefits if Gigahitz does not receive payment when due.
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Section 2.06
|
Modifications
to Subscriber’s Account.
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In order to change any of Subscriber’s account information,
Subscriber must use the User Name and the Password that Subscriber selected
when Subscriber registered as a Gigahitz User. In no event will Gigahitz be
liable for any unauthorized use or misuse of Subscriber’s User Name and
Password.
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Section 2.07
|
Breach.
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Subscriber agrees that Subscriber’s failure to abide by any
provision of this Agreement or any Gigahitz operating rule or policy,
Subscriber’s willful provision of inaccurate or unreliable information as
part of the application process, Subscriber’s failure to update
Subscriber’s information to keep it current, complete or accurate, and/or
Subscriber’s failure to respond to inquiries from Gigahitz concerning the
accuracy of Subscriber’s account information shall be considered a material
breach of this Agreement. If within ten (10) calendar days after Gigahitz’s
provides notice (in any form and via any method of delivery) to Subscriber
of such material breach, Subscriber fails to provide evidence, reasonably
satisfactory to Gigahitz, that Subscriber has not breached its obligations
under this Agreement, Gigahitz may terminate all Services, Subscription and
otherwise, without further notice to Subscriber.
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ARTICLE III.
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HOSTING AGREEMENT NB – TO BE DELETED
IF NOT OFFERED AS SERVICE
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Section 3.01
|
Applicability
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This Article III applies to any Person (hereinafter a “Hosting
Subscriber”) who subscribes to any web hosting subscription service offered
by Gigahitz. For purposes of this Agreement all Hosting Subscribers are
also Subscribers and Users as defined herein.
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Section 3.02
|
Reserved
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Section 3.03
|
Hosting
Subscriber’s Representations, Warranties and Obligations.
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(a) Hosting Subscriber represents and warrants to Gigahitz
that:
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Hosting Subscriber has read and understands Gigahitz’s DMCA policy;
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Hosting Subscriber has the power and authority to enter into
and perform Hosting Subscriber’s obligations under this Agreement generally
and this Article III specifically;
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Any website that Hosting Subscriber develops and/or displays,
performs, broadcasts, transmits or otherwise makes available by or through
a Hosting Service (hereinafter, the Hosting Subscriber’s “Website”) does
not and shall not contain any content, materials, data, work of authorship,
trade or service mark, trade name, link, advertising or service that
actually or potentially violates any applicable law or regulation or
infringes or misappropriates any proprietary, intellectual property,
contract or tort right of any person;
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Hosting Subscriber owns Hosting Subscriber’s Website content
and all proprietary or intellectual property rights therein, or has express
written authorization from the owner to use, reproduce, publicly perform
and publicly display the content on and within Hosting Subscriber’s
Website; and
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Hosting Subscriber’s Website will not be used in connection
with any illegal activity.
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(b) Hosting Subscriber is responsible for ensuring that there
is no excessive overloading on Gigahitz's DNS or servers. Gigahitz
prohibits the use of software or scripts run on its servers that cause the
server to load beyond a reasonable level, as determined by Gigahitz.
Hosting Subscriber agrees that Gigahitz reserves the right to remove
Hosting Subscriber’s Website temporarily or permanently from its hosting
servers if Hosting Subscriber’s Website threatens the stability of Gigahitz’s
network.
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(c) Hosting Subscriber may not use Gigahitz's servers or
Hosting Subscriber’s Website as a source, intermediary, reply to address,
or destination address for mail bombs, Internet packet flooding, packet
corruption, denial of service, or any other abusive activities. Server
hacking or other perpetration of security breaches is strictly prohibited
and Gigahitz reserves the right to remove websites that contain information
about hacking or links to such information. Use of Hosting Subscriber’s
Website as an anonymous gateway is prohibited.
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(d) Hosting Subscriber agrees not to engage in unacceptable
use of any Hosting Service, including, without limitation, use of any
Hosting Service to:
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· disseminate or transmit unsolicited messages, chain letters
or unsolicited commercial email;
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· disseminate or transmit any material that, to a reasonable
person, may be abusive, obscene, pornographic, defamatory, harassing,
grossly offensive, vulgar, threatening or malicious;
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· disseminate or transmit files, graphics, software or other
material, data or work that actually or potentially infringes the
copyright, trademark, patent, trade secret or other intellectual property
right of any person;
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· create a false identity or to otherwise attempt to mislead
any person as to the identity, source or origin of any communication;
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· export, re-export or permit downloading of any message or
content in violation of any export or import law, regulation or restriction
of the United Kingdom and its agencies or authorities, or without all
required approvals, licenses and/or exemptions;
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· interfere, disrupt or attempt to gain unauthorized access to
any computer system, server, network or account which Hosting Subscriber
does not have authorization to access or at a level exceeding Hosting
Subscriber’s authorization;
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· disseminate or transmit any virus, Trojan horse or other
malicious, harmful or disabling data, work, code or program; or
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· engage in any other activity deemed by Gigahitz to be in
conflict with the spirit or intent of this Agreement or any Gigahitz
policy.
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Section 3.04
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Availability
of Services.
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Subject to the terms and conditions of this Agreement, Gigahitz
shall attempt to provide Hosting Services for twenty-four (24) hours a day,
seven (7) days a week throughout the term of Hosting Subscriber’s
subscription. Hosting Subscriber agrees that from time to time the Hosting
Service may be inaccessible or inoperable for any reason, including,
without limitation, equipment malfunctions; periodic maintenance procedures
or repairs which Gigahitz may undertake from time to time; or causes beyond
the control of Gigahitz or which are not reasonably foreseeable by Gigahitz,
including, without limitation, interruption or failure of telecommunication
or digital transmission links, hostile network attacks, network congestion
or other failures. Hosting Subscriber agrees that Gigahitz makes no
representation or assurance that Hosting Services will be available on a
continuous or uninterrupted basis.
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Section 3.05
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Storage
and Security.
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At all times, Hosting Subscriber shall bear full risk of loss
and damage to Hosting Subscriber’s Website and all of Hosting Subscriber’s
Website content. Hosting Subscriber is solely responsible for maintaining
the confidentiality of Hosting Subscriber’s Password and account
information. Hosting Subscriber agrees that Hosting Subscriber is solely
responsible for all acts, omissions and use under and charges incurred with
Hosting Subscriber’s account or password or any of Hosting Subscriber’s
Website content. Hosting Subscriber shall be solely responsible for
undertaking measures to: (i) prevent any loss or damage to Hosting
Subscriber’s Website content; (ii) maintain independent archival and backup
copies of Hosting Subscriber’s Website content; (iii) ensure the security,
confidentiality and integrity of all of Hosting Subscriber’s Website
content transmitted through or stored on Gigahitz servers; and (iv) ensure
the confidentiality of Hosting Subscriber’s password. Gigahitz's servers
and Hosting Services are not an archive and Gigahitz shall have no
liability to Hosting Subscriber or any other person for loss, damage or
destruction of any of Hosting Subscriber’s content. If Hosting Subscriber’s
password is lost, stolen or otherwise compromised, Hosting Subscriber shall
promptly notify Gigahitz, whereupon Gigahitz shall suspend access to
Hosting Subscriber’s Website by use of such password and issue a
replacement password to Hosting Subscriber or Hosting Subscriber’s authorized
representative. Gigahitz will not be liable for any loss that Hosting
Subscriber may incur as a result of someone else using Hosting Subscriber’s
password or account, either with or without Hosting Subscriber’s knowledge.
However, Hosting Subscriber could be held liable for losses incurred by Gigahitz
or another party due to someone else using Hosting Subscriber’s account or
password.
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Section 3.06
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Spam
Policy.
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(a) Gigahitz does not tolerate the transmission of spam. We
monitor all traffic to and from our Web servers for indications of spamming
and maintain a spam abuse compliant center to register allegations of spam
abuse. Customers suspected to be using Gigahitz products and services for
the purpose of sending spam are fully investigated. Once Gigahitz
determines there is a problem with spam, Gigahitz will take the appropriate
action to resolve the situation. Our spam abuse compliant center can be
reached by email at hosting@Gigahitz.com.
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(b) Gigahitz defines spam as the sending of Unsolicited
Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited
Facsimilies (Fax), which is email or facsimile sent to recipients as an
advertisement or otherwise, without first obtaining prior confirmed consent
to receive such communications from the sender. This can include, but is
not limited to, the following:
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Email messages
Newsgroup postings
Windows system messages
Pop-up messages (aka "adware" or "spyware" messages)
Instant messages (using AOL, MSN, Yahoo or other instant messenger
programs)
Guestbook or website forum postings
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(c) Gigahitz will not allow its servers or services to be used
for the purposes of spam as described above. In order to use our products
and services, Hosting Subscriber shall abide by all applicable laws and
regulations. Commercial advertising and/or bulk emails or faxes may only be
sent to recipients who have already "opted-in" to receive
messages from the sender specifically. They must include a legitimate
return address and reply-to address, the sender's physical address, and an
opt-out method in the footer of the email or fax. Upon request by Gigahitz,
conclusive proof of optin may be required for an email address or fax
number.
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(d) If Gigahitz determines that Hosting Services are being
used in association with spam, Gigahitz will re-direct, suspend, or cancel
such Hosting Service for a period of no less than 2 days. The Hosting
Subscriber will be required to respond by email to Gigahitz stating that
Hosting Subscriber will cease to send spam and/or have spam sent on their
behalf. Gigahitz will require a non-refundable reactivation fee to be
paid before Hosting Subscriber’s Website, email boxes and/or other Hosting
Services are reactivated. In the event Gigahitz determines the abuse has
not stopped after services have been restored the first time, Gigahitz may
terminate all Services associated with the Hosting Subscriber.
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ARTICLE IV.
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FINANCIAL TERMS AND CONDITIONS
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Section 4.01
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Applicability
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This Article IV applies to all Users.
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Section 4.02
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Currency
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Fees and prices appearing on the Site are based on United Kingdom pounds sterling. Payments for any Service or purchase made on or through the
Site shall be made to Gigahitz in United Kingdom pounds sterling, except as
provided in Section 4.05 herein.
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Section 4.03
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Payments
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You agree to pay for all fees and charges incurred under your Gigahitz
account or Username. If you have configured the account associated with
your Username (your "Account") to pay for Services or purchases
with a credit or debit card or similar form of payment (a "Card”
payment method), you authorize any and all charges and fees incurred under
your Account to be billed from time to time to your Card account.
Regardless of the method of payment, it is your sole responsibility to
advise Gigahitz of any billing problems or discrepancies within thirty (30)
days after such discrepancies or problems become known to you. Your Card
issuer agreement governs the use of your designated Card account in
connection with any fee, purchase or Service; you must refer exclusively to
such issuer agreement, and not this Agreement, to determine your rights and
liabilities as a Cardholder.
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Section 4.04
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Subscription
Cancellation Refunds.
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The following shall apply if you cancel a Subscription Service
(see Section 2.04).
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(a) Monthly Billing Subscriptions. No refunds will be
issued for monthly billing subscriptions. If monthly billing is selected
and is not cancelled by the end of the monthly period (30 days from the
sign up date), your Card will be billed at the beginning of the next 30 day
period. In order to avoid additional charges to your Card, you must contact
Gigahitz Customer Service by email (customerservice@Gigahitz.com) at least
5 days before your next billing period, to cancel your Subscription
Service. Your email should include the following: registered name on the
account, registered email address on the account, and the service to be
cancelled.
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(b) Annual Billing Subscriptions. No refunds will be
issued for annual billing subscriptions. Such cancellations will be
effective after the paid period. The Subscription Service will remain
active until the end of the paid period.
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(c) Annual Subscription Upgrades. Subscription Service
upgrades may be cancelled at any time. However, no refunds will be issued
for Subscription Service upgrade cancellations. If you cancel an upgrade,
the cost of the upgrade will be applied toward your previous Subscription
Service membership level prior to upgrading. This will extend such previous
Subscription Service for the number of days equivalent to the upgrade
purchase price.
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Section 4.05
|
Download
Purchase Credits.
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(a) Merchants who
elect to be paid in Download Purchase Credits (“DPCs”) for sales at the Gigahitz
Downloads Store (the “BDS”), Buyers who choose to purchase DPCs
and Users who otherwise obtain DPCs (collectively, “Holders” of DPCs) shall
hold DPCs subject to the provisions of this Section 4.05 as well as all
rules and policies posted on the Site relating to DPCs.
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(b) DPCS ARE NONRETURNABLE AND NONREFUNDABLE.
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(c) All DPCs shall expire if not redeemed within one (1)
calendar year from the date of issuance.
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(d) Holders shall have no right to redeem DPCs for anything
other than products or services that are:
i.
available
for purchase on the Site; and
ii.
wholly
controlled by Gigahitz.
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(e) Holders shall have no right to demand cash or any other
thing of value in exchange for DPCs, except as provided in Section 4.05
(d).
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(f) Interest shall not accrue on DPCs.
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Section 4.06
|
Stale
Checks.
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Checks issued by Gigahitz to any User, for any purpose, are
VOID after 180 days from the date of issue. Users who fail to cash Gigahitz-issued
checks within such 180-day period will be charged a £2.00 fee for
re-depositing funds from the stale check to the User’s account. Users requesting
replacement checks will be charged an additional £5.00 fee for issuance of
the replacement check.
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Section 4.07
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Gigahitz
Deliveries Refunds.
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The following shall apply if you purchase Gigahitz's
Deliveries services.
Refunds will not be issued for Gigahitz Deliveries services. If you
experience a technical problem related to Gigahitz Deliveries services, Gigahitz
will take steps in accordance with Section 1.10 to ensure
your transaction is completed successfully. Gigahitz may at its sole
discretion convey complimentary services to you in the event of a verified
technical problem.
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If you are unclear about any provision of this Agreement,
please contact TBA at legal@Gigahitz.com.
You may also write to us at Gigahitz Ltd., 25 The Waterfront Sovereign
Harbour Eastbourne England BN23 5UZ
This Site is owned and operated by Gigahitz Ltd.
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Last Updated: 28/08/2007
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