Terms and Conditions
By signing The Ds3’s Group contractual agreement, you agree to our Terms of Service
The DS3 Group Products and Services Terms and Conditions of Use Updated and effective as of 31st July 2016.
READ THIS AGREEMENT CAREFULLY.
- DEFINITION OF TERMS
As used in these Terms and Conditions of Use:
“The DS3 Group,” “we,” “us,””DS3,” or “our” (whether or not capitalized) mean The DS3 Group and its subsidiaries.
“The DS3 Group Affiliate” means persons or entities who have provided products, licenses, or services to The DS3 Group and persons or entities with which The DS3 Group has entered into an agreement to sublicense or to provide The DS3 Group Products or Services to users.
“The DS3 Group Products or Services” means DS3 services, websites (including without limitation, http://www.theds3group.com), all other documentation, features, tools, The DS3 Group Software, and any other products or services provided by DS3 or its authorized agents, distributors, and licensees.
“The DS3 Group Software” means software provided to you or for your use by The DS3 Group.
“Days” (whether or not capitalized) means calendar days.
“Personal Information” means information that you may provide at the time of registration or otherwise, such as name, physical location or address, IP address, e-mail address, employment, social media authorization or similar information that identifies you as a specific individual.
To “Publish” documents or information means to provide to or make them accessible to you by mailing, emailing, desktop messaging, faxing, or delivering them to you, or by posting them to http://www.TheDS3Group.com or any other website you visit to register for, subscribe to, license, buy, or Use The DS3 Group Products or Services.
The “Subscription Period” for any license to use The DS3 Group Products or Services begins at purchase, regardless of the date of activation, and expires at the end of your specific purchased term. A specific purchased term may be monthly, yearly, multi-year or for another periodic metric. For example, if you are billed on a monthly basis, your Subscription Period is for the month billed.
To “Use” or “Using” The DS3 Group Products or Services means each time you visit a The DS3 Group website, register with The DS3 Group, login to an account with The DS3 Group, view the status of your website, access any Website Data stored with The DS3 Group or request support.
“You,” “yourself”, “user,” and “customer” (whether or not capitalized) refer to the individual or legal entity registering for or using the The DS3 Group Products or Services.
“Content” (whether capitalized or not) refers to layout, designing, storage, management, uploaded files including documents, media files and executable files), graphics, images and photographs.
- ACCEPTANCE OF TERMS AND CONDITIONS OF USE; MODIFICATION; CANCELLATION
By registering to Use The DS3 Group Products or Services, and each time you Use a The DS3 Group Product or Service, you affirm your acceptance of these Terms and Conditions of Use and agree to comply with them now and throughout the period of your Use of the The DS3 Group Products or Services and thereafter, as noted in Section 6 (The DS3 Group License to You; Renewals, etc.) below. If you do not agree to these Terms and Conditions of Use in their entirety, do not Use The DS3 Group Products or Services. The DS3 Group may change the Terms and Conditions of Use at any time in its sole discretion. The new or modified Terms and Conditions of Use will be effective immediately after we publish them on our website at http://www.theds3group.com. If you do not agree to be bound by The DS3 Group’s Terms and Conditions of Use as Published by The DS3 Group from time to time, your sole and exclusive remedy is to discontinue using The DS3 Group Products or Services. If you wish to cancel your The DS3 Group account after a change in the Terms and Conditions of Use, you must do so in writing or by email within fourteen (14) days after your next Use of a The DS3 Group Product or Service following the change in the Terms and Conditions of Use. For this type of cancellation you will receive a pro-rata refund for the unused portion of your The DS3 Group license as of your date of notice. You acknowledge and agree that if you do elect to cancel your account within this specified period after a change in the Terms and Conditions of Use, or if you cancel your account or fail to renew an expired or terminated subscription for any reason, The DS3 Group may delete any information that The DS3 Group has obtained through your Use of The DS3 Group Products or Services, including without limitation, your Website Data, and The DS3 Group will not have any files available for your Use. Cancelled accounts will have all information deleted immediately upon cancelling.
- REQUIREMENTS FOR REGISTRATION OR USE OF THE DS3 GROUP PRODUCTS
The DS3 Group Products or Services are intended and offered only for lawful Use by individuals or organizations with the legal capacity and authority under applicable law to enter into a contract for such products or services. The DS3 Group does not offer The DS3 Group Products or Services to minors or where prohibited by law. By registering for and/or by Using The DS3 Group Products or Services, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the The DS3 Group Terms and Conditions of Use and that you will Use The DS3 Group Products or Services only in accordance with these Terms and Conditions of Use and with all applicable laws. If an individual is registering or Using The DS3 Group Products or Services on behalf of an entity or organization, that individual warrants, represents, and covenants to The DS3 Group that such individual is duly authorized to agree to these Terms and Conditions of Use on behalf of the organization and to bind the organization to them. If an individual uses The DS3 Group Products or Services that are provided by any third party including any person, entity or organization, the individual Using the The DS3 Group Products or Services, by virtue of such use, agrees that any information the individual provides to The DS3 Group (including but not limited to the individual’s Website Data and Content and Personal Information) will be accessible to, and may be viewed, changed, or deleted by the person, entity or organization that provided the The DS3 Group Products or Services to the individual. You agree to provide accurate and complete information when you register for a The DS3 Group Product or Service and you agree to keep such information accurate and complete during the entire time that you Use The DS3 Group Products or Services. We may ask you from time to time to establish a user name or password to access or Use the The DS3 Group Products or Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password.
- LAWFUL USE OF THE DS3 GROUP PRODUCTS OR SERVICES
You may not Use The DS3 Group Products or Services for any unlawful purpose. Without limiting the foregoing:
(a) The DS3 Group Products or Services may not be Used to store, display, or distribute child pornography and may not be Used in violation of U.S. export control laws or the export or import regulations of other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import as may be required.
(b) You may not Use The DS3 Group Products or Services if you are a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, Iraq, Morocco, Nigeria, Tunisia, Pakistan, Algeria, Afghanistan, Saudi Arabia, or any other country to which the United States has prohibited export. Each time you Use The DS3 Group Products or Services you represent, warrant, and covenant that: (i) You are not a citizen, national, or resident of, nor under the control of, any such country to which the United States has prohibited export; (ii) You will not download or otherwise export or re-export the The DS3 Group Software, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries; (iii) You are not listed on the U.S. Department of Treasury’s Lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, the U.S. Department of State’s List of Statutorily Debarred Parties, or the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List Table of Denial Orders; (iv) You will not download or otherwise export or re-export the The DS3 Group Software, directly or indirectly, to persons on the above mentioned lists; (v) You will neither Use nor allow the The DS3 Group Software to be Used for, any purposes prohibited by United States federal or state law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, or biological weapons of mass destruction; (vi) The The DS3 Group Software will not be exported, directly, or indirectly, in violation of these laws, nor will the The DS3 Group Products or Services be Used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
(c) If Metadata checking (i.e. contact form titles) reveals that an account has content relating to phishing, malicious files or software, software piracy or any copyrighted data with the intent to distribute (i.e. torrents)
- CHANGES TO THE THE DS3 GROUP PRODUCTS OR SERVICES
The DS3 Group has the right at any time to change, modify, add to, discontinue, or retire any The DS3 Group Product or Service and any aspect or feature of the The DS3 Group Products or Services including, but not limited to, the software, hours of availability, equipment needed for access or Use, the types of content that can be used, the maximum storage that will be allotted on The DS3 Group servers on your behalf either cumulatively or for any particular service, or the availability of The DS3 Group Products or Services on any particular device or communications service. The DS3 Group will provide notice of material changes to the The DS3 Group Products or Services or changes to this Agreement by posting them to http://www.theds3group.com. The DS3 Group shall have no obligation to provide you with notice of any such changes in any other manner. It shall be your responsibility to check our website periodically to inform yourself of any such changes. From time to time, The DS3 Group may issue new releases, revisions, or enhancements to the The DS3 Group Products or Services available to you free of charge or for a fee. New releases, revisions or enhancements may be licensed and used only to the extent that you hold a valid license to Use the The DS3 Group Products or Services being updated or upgraded, and you may Use them only in accordance with the then-current Terms and Conditions of Use and any additional license terms that may accompany them. The DS3 Group may automatically update The DS3 Group Products or Services that are in use on your website without your prior consent. If any automatic updates involve the payment of additional fees, we will provide you with the opportunity to approve such fees prior to the new functionality being enabled. If you fail or refuse to approve such fees, The DS3 Group may, in its sole discretion, terminate your current license, continue to support your current The DS3 Group Products or Services without the automatic update, or replace your The DS3 Group Products or Services with other The DS3 Group Products or Services. If The DS3 Group terminates your current license on account of your failure or refusal to approve such fees, then The DS3 Group will refund, on a pro-rata basis based on the remaining term of the current license, provided that the most recent license renewal or original license purchase was made less than 14 days prior, any fees related to the period during which you will not have access to your The DS3 Group Products or Services. If The DS3 Group updates the The DS3 Group Products or Services without requiring an additional fee and you object to such change, your sole remedy shall be to terminate your use of the The DS3 Group Products and Services. These Terms and Conditions of Use (including any documents incorporated by reference) constitute the entirety of the agreement between us and you concerning the subject matters discussed herein. This Agreement supersedes any prior written or oral representations, understandings, or agreements, and may not be modified except by the posting of changes to http://www.theds3group.com as provided in this Section 5. No written or oral statement, understanding, representation, or alleged agreement made outside the Terms and Conditions of Use posted to http://www.theds3group.com may be used to modify, interpret, add to, supersede, or construe the terms of this Agreement, except by means of a written agreement signed by an officer of The DS3 Group.
- THE DS3 GROUP LICENSE TO YOU; RENEWALS, MODIFICATIONS, LIMITS
(a) Scope of License.
You may not sub-license, or charge others to Use or access the The DS3 Group Products or Services and you may not redistribute the The DS3 Group Products or Services, unless you have entered into a separate Reseller Agreement or other agreement with The DS3 Group that expressly authorizes you to engage in this activity. Without limiting the foregoing, you will not permit others to Use the The DS3 Group Products or Services to access website data stored on servers provided by The DS3 Group or The DS3 Group Affiliates.
(b) Trial Licenses.
If you received a free trial or evaluation license for which you have not paid a license fee, The DS3 Group grants to you a non-exclusive, non-transferable limited license to Use the The DS3 Group Software during the trial or evaluation period in accordance with these Terms and Conditions of Use. You may only sign up for one free trial or evaluation license in each calendar year.
You agree that The DS3 Group shall have the right to automatically and without notice renew your license to continue to Use the The DS3 Group Products or Services upon expiration of your then-current license, and that as part of such renewal The DS3 Group shall have the right to charge the applicable renewal fees and any applicable taxes, which may be different than those you paid when you initially purchased or last renewed your license for The DS3 Group Products or Services to any credit card you used to purchase your then-current license. You agree that if you elect to not permit The DS3 Group the right to automatically renew your license to Use The DS3 Group Products or Services or your credit card information on file with The DS3 Group does not permit automatic renewal, then The DS3 Group may terminate your license if you do not otherwise renew your license. If you received a discount in your initial sign up period this will be for the first term with The DS3 Group only. We will renew your account at the listed non discount price.
First month discount promotions.
If you received a discount promotion on your initial months sign up, you agree that The DS3 Group shall have the right to automatically and without notice renew your license at the listed non discounted monthly price. All other terms of service will still apply upon acceptance.
(d) Cancellation of Renewals.
You may cancel a renewal of a subscription only on the following terms: If your most recent original or renewal of The DS3 Group Products or Services was for a period of greater than fourteen (14) days, you have fourteen (14) days from the date that your subscription was last renewed to elect to discontinue your Use of The DS3 Group Products or Services. If you elect to discontinue your Use of The DS3 Group Products or Services within this period, you will be issued a full refund for the amount of your license renewal. If your most recent original or renewal of The DS3 Group Products or Services was for a period of greater than 14 days, and you are beyond your original or renewal 14 days of that period, you shall not be entitled to a refund. In addition all sales are final and not subject to a refund for the following products domain registration, domain privacy, priority support, ecommerce, SEO Ebook, Email Address, SocialBooster and other additional products that may be offered from time to time by The DS3 Group that do not fall within the initial package purchased by you. All extras concerned are one time purchases for the period you selected and will not be eligible for a refund. Should you fail to pay amounts invoiced and due within fifteen (15) days of being invoiced, or should your payment be otherwise rejected or denied, then The DS3 Group may at its sole discretion begin collection proceedings to recover any and all amounts due. Should The DS3 Group elect to refer your past due obligations for collection proceedings you will also become responsible for any costs associated with said collections and shall pay The DS3 Group the greater of the then permissible interest rate on the past due balance or 1.5% per month calculated and due on a monthly basis. You are responsible for ensuring that The DS3 Group has current and accurate records necessary, to renew your subscription, including without limitation, credit card data.
(e) Early Termination Fee
We will apply a termination charge if you stop your service when still within your contract term. When you sign up for a minimum term service, the costs of that service are spread across the term period, for example over 1 or 2 years. Discounts and any fees are also included in the agreed service costs. Early Termination charges are applied to recover the costs of the service provided to you over the minimum contract period.
Our Prices: Your Early Termination Fee will be 14.95 USD for failure to complete your contract term. Note: A Termination charge doesn’t attract VAT.
What are Early Termination charges? Often, customers that order services from us agree to take those services for a minimum period (usually 12/24 months). Sometimes customers will choose to give up a service within this minimum period. If they do, we will usually charge them for doing so.
The exceptions when we will not raise Early Termination charges are listed below:
All monthly plans are void of any terminations fees as their contracts are on month-month contracts. Contract extension: a contract extension for the same product, for example 1 year extended to a 2 year contract. Product migration: migration of an existing product or service up the value chain to a higher value product for the same or longer contract period. Temporary service: termination of a pre-agreed temporary service. Account’s where the termination is within (3) Three days from the date of order. If the resulting refund is less than 14.95 the refund will not be issued but no further charges for the remaining will be charged.
Why wasn’t I told about the charge? When you ordered the product with us, the prices and terms and conditions of service would have been explained. Re-confirmation of length of contract, and our terms and conditions would have been shown as a confirmation box on the order form. We also highlight the length of term in all of our product descriptions.
The DS3 Group may in its sole discretion provide automatic updates to the The DS3 Group Products or Services. These updates may not be consistent across all platforms and computers; and the performance and features offered by The DS3 Group may vary depending on your computer and other equipment. You agree that we may automatically check your version of the The DS3 Group Software and automatically update the The DS3 Group Software used to create your websites.
By purchasing a license, you acknowledge that you are aware of the opportunity to “try before you buy” by using a free or evaluation The DS3 Group Product or Service. The DS3 Group offers a 14-day money back guarantee for The DS3 Group Products or Services.
First Time Purchases: All sales are final and not subject to a refund for the following products domain registration, domain privacy, priority support, ecommerce, SEO Ebook, Email Address and other additional products that may be offered from time to time by The DS3 Group that do not fall within the initial package purchased by you. All extras concerned are one time purchases for the period you selected and will not be eligible for a refund.
(h) Unrecognized Charges on your account. We will make every effort to assist you, please contact email@example.com for an immediate resolution.
(i) Duration of Agreement.
You agree that you shall be bound by these Terms & Conditions of Use beginning on the earlier of when you first used The DS3 Group Products or Services or when you first agree to the The DS3 Group Terms and Conditions of Use until the later of the dates when (i) your license and any renewal thereof terminates, ii) your Website Data is deleted, or iii) you have your last contact with The DS3 Group for customer support.
- ASSIGNMENT AND DELEGATION BY THE DS3 GROUP
The DS3 Group may, in its sole discretion, transfer or assign all or any part of its rights in the The DS3 Group Software, the The DS3 Group Products or Services, and any license or contract related thereto, and may delegate all or any portion of its duties, if any, under any such The DS3 Group Products or Services, licenses, or other contracts.
- NO TRANSFERS OR MODIFICATIONS BY YOU
You may not sell, assign, grant a security interest in or otherwise transfer any right to the The DS3 Group Products or Services, nor incorporate them (or any portion of them) into another product or service. You may not copy the The DS3 Group Products or Services. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the The DS3 Group Software or decrypt any files that are not associated with your computer. You may not modify the The DS3 Group Software or use it in any way not expressly authorized by these Terms and Conditions of Use. You may not obtain the communications protocol for accessing the The DS3 Group Products. You may not authorize or assist any third party to do any of the foregoing.
- RETENTION OR DELETION OF WEBSITE DATA AND PERSONAL INFORMATION
The DS3 Group Software saves to a server operated by The DS3 Group or a The DS3 Group Affiliate a copy of each file you upload and the content you add to your website. The DS3 Group does not maintain a secondary copy of your data that you have uploaded to our servers. Should your data be lost by The DS3 Group we will undertake commercially reasonable efforts to create a replacement website from the files stored in your account. If your subscription or trial to use The DS3 Group Products or Services expires, is terminated, is not renewed, or is otherwise discontinued for any reason, The DS3 Group and the The DS3 Group Affiliates may, without notice, delete or deny you access to any of your Website Data that may remain in our possession or control. You agree that if i) you delete a file from your website, ii) you delete a website from your The DS3 Group Products or Services account, iii) you terminate or allow your trial or license to terminate, non-renew, or otherwise lapse for any reason, that the files you have deleted may not be available to you should you wish to restore them. You agree that The DS3 Group and The DS3 Group Affiliates may retain (but shall have no obligation to retain) your Website Data for a period after your trial or license has been terminated, expired, or otherwise lapsed, as part of The DS3 Group’s marketing to you of the opportunity to purchase, renew, or extend a license. You also agree that The DS3 Group may retain your Personal Information and related account information for a reasonable time after your license has been terminated.
- CUSTOMER SUPPORT
The DS3 Group may, in its sole discretion, provide customer support or service to you. This service may be available only on selected days and during a limited number of hours. Service may also only be made available through certain delivery vehicles such as email or telephone and some services may only be available for the payment of an additional fee or charge. As part of the delivery of services, The DS3 Group may employ a variety of tools to aid in the process of resolving your issues as a user. You grant The DS3 Group the right to use these tools and hold The DS3 Group harmless for the use of these tools as well as the guidance provided by its customer support staff who, you acknowledge, cannot be fully aware of all of the complexities associated with the The DS3 Group Products or Services, your website/s, or all of the related or associated infrastructure that may affect the performance of your sites. You agree and understand that certain programs, files, information or data you use may require that you have access to or retain license keys that The DS3 Group may not have and that you will retain any needed copies of such information. You agree and understand that certain programs, applications or devices will require configuration in order to access your website and that The DS3 Group has no obligation to assist, and may not be able to assist, you with such configurations.
- RESTRICTIONS ON ACCESS TO THE DS3 GROUP PRODUCTS OR SERVICE
You may access The DS3 Group Products or Services only through the interfaces and protocols provided or authorized by The DS3 Group. You agree that you will not access The DS3 Group Products through web design and development software packages or unauthorized means such as unlicensed software clients.
You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use The DS3 Group Products or Services. Without limiting the foregoing, you must pay all charges, taxes, and other costs and fees related to obtaining your own Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by you to access The DS3 Group Products or Services.
- TERMINATION AND FAIR USE POLICY
The DS3 Group SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF The DS3 Group PRODUCTS OR SERVICES TO USERS WHO HAVE VIOLATED THESE TERMS AND CONDITIONS OR ARE DEEMED TO BE USING THE The DS3 Group PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY The DS3 Group OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER’S ACCOUNT WITH The DS3 Group. If you have purchased a The DS3 Group Product or Service that is inappropriate for your actual usage, The DS3 Group will require you to switch to an appropriate The DS3 Group Product or Service. This may result in you having to pay The DS3 Group additional fees for use of the appropriate product or to terminate your purchased The DS3 Group Products or Services and refund, on a prorated basis, any fees paid you may have paid on the unused portion of your The DS3 Group subscription, provided that the most recent subscription renewal or original subscription purchase was made less than 14 days prior. The DS3 Group determines inappropriate use as excessive storage of media files e.g. photos or videos in excess of 500GB in a single account. The DS3 Group may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of The DS3 Group Products or Services and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of The DS3 Group Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of The DS3 Group’s customers, generally. We reserve the right to offer an alternative pricing plan or The DS3 Group Product or Service that will permit you to continue to use The DS3 Group Products or Services. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your account and usage of The DS3 Group Products or Services without prior notice in the event of a violation of this policy. If content checking (i.e. contact form field names) reveals that an account has content relating to phishing, malicious files/software, video piracy, software piracy or any copyrighted data with the intent to distribute (i.e. torrents) the account will be immediately terminated. If The DS3 Group believes that you are breached our Fair Use Policy and the user has not switched to the advised appropriate service, The DS3 Group we will allow the user 30 days from date of first communication to retrieve their website data before deletion of the users account and websites. 1st notice will be sent 30 days before account deletion, 2nd notice will be sent 20 days before account deletion and the 3rd final notice will be sent 2 days before account deletion. All communications will be sent to the email address attached to the users account.
- DATA COLLECTION, ENCRYPTION, PRIVACY, AND DISCLOSURE
(a) WARRANTY The DS3 Group warrants that the The DS3 Group Products or Services will perform substantially as specified in the applicable The DS3 Group documentation for a period of fourteen (14) days from the date of registration or payment. If you satisfactorily demonstrate to The DS3 Group within such fourteen (14) day period that a The DS3 Group Product or Service contains errors, then as The DS3 Group’s sole and exclusive liability and as your sole and exclusive remedy, The DS3 Group shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the The DS3 Group Product or Services affected with a substantially conforming product or service, or refund the fee you paid for the The DS3 Group Product or Service and terminate your license under the Terms and Conditions of Use. The DS3 Group does not warrant the results of its correction or replacement The DS3 Group Products or Services. Correction or replacement under this Section 16 (Warranties), and the issuance of any corrections, patches, bug fixes, workarounds, extras, enhancements, or updates by The DS3 Group to you, shall not be deemed to begin a new, extended, or additional license, Subscription Period, or warranty period.
(b) DISCLAIMER OF OTHER WARRANTIES. THE LIMITED WARRANTY IN THE PRECEDING PARAGRAPH IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE TO THE EXTENT THAT ANY SUCH WARRANTIES CAN BE EXCLUDED IN ACCORDANCE WITH APPLICABLE LAW. The DS3 Group and the The DS3 Group Affiliates do not warrant that the functions contained in the The DS3 Group Products or Services will meet your requirements, that the operation of the The DS3 Group Products or Services will be uninterrupted or error-free, or that defects in the The DS3 Group Products or Services will be corrected. The DS3 Group and The DS3 Group Affiliates do not warrant or make any representations regarding the use or the results of the use of the The DS3 Group Products or Services in terms of their correctness, accuracy, reliability or otherwise. The DS3 Group and The DS3 Group Affiliates do not represent or warrant that users will be able to access or use the The DS3 Group Products or Services at times or locations of their choosing, or that The DS3 Group and The DS3 Group Affiliates will have adequate capacity for any user’s requirements. No oral or written statement, information or advice given by The DS3 Group, The DS3 Group Affiliates, or their respective employees, distributors, dealers, or agents shall create any warranties in addition to those express warranties set forth in this Section 16 (Warranties). You may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the warranty period.
- LIMITATION OF LIABILITY
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS The DS3 Group, The DS3 Group AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, ARISING OUT OF YOUR USE OF THE The DS3 Group PRODUCTS OR SERVICES AND/OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND CONDITIONS OF USE. Should you bear financial responsibility for payment to The DS3 Group for The DS3 Group Products or Services or have otherwise made payment for The DS3 Group Products or Services, you agree to indemnify any Users of The DS3 Group Products or Services that you have paid for with respect to any and all matters. If you are a beneficiary of another party having paid for said The DS3 Group Products or Services, whether or not the paying party(s) is a user of The DS3 Group Products and Services, your sole source of recourse, for any and all claims, is to the party that bears financial responsibility to The DS3 Group for The DS3 Group Products and Services. The DS3 Group RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. IN THAT EVENT, AND ONLY IN SUCH EVENT, YOU SHALL HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR THE DS3 GROUP IN THAT MATTER. If The DS3 Group chooses to provide its own defence in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defence of The DS3 Group and The DS3 Group Affiliates, at your own expense, to the full extent requested by The DS3 Group.
- TRADEMARKS, SERVICE MARKS, AND OTHER INTELLECTUAL PROPERTY
All trademarks, service marks or other similar items appearing on the The DS3 Group Products or Service are the property of their respective owners. The The DS3 Group Products or Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the The DS3 Group Products or Services and shall remain with The DS3 Group and its licensors. You agree not to take any action to jeopardize, limit, or interfere in any manner with The DS3 Group’s or its licensor’s ownership of or rights with respect to the The DS3 Group Products or Services.
- U.S. GOVERNMENT RESTRICTED RIGHT
The The DS3 Group Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the The DS3 Group Software with only those rights set forth therein.
- HIGH RISK ACTIVITY
You acknowledge and agree that the The DS3 Group Products or Services are not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, and that The DS3 Group makes no warranty and shall have no liability arising from any Use of the The DS3 Group Products or Services in any high risk or strict liability activities.
- DISPUTE RESOLUTION, ARBITRATION, GOVERNING LAW, AND VENUE
(a) Arbitration of Domestic (U.S.) Disputes.
All disputes arising under or relating to this Agreement shall be resolved by final and binding arbitration conducted before a single arbitrator pursuant to the commercial arbitration rules of Resolute Systems, Inc. that were in force as of April 30, 2008. Evidentiary hearings and any other proceedings requiring personal attendance of parties or their representatives or witnesses shall be conducted in any U.S. city reasonably designated by the Licensee in the case of individual Licensees who procured the The DS3 Group Products or Services provided for by this Agreement primarily for non-commercial personal, family, or household purposes (“Consumer Licensees”), and in Akron, OH or such other place within the United States as the arbitrator may direct in the case of all other Licensees (“Commercial Licensees”).
(b) Arbitration of International Disputes.
Notwithstanding the provisions of Subsection 22(a) (Arbitration of Domestic Disputes), any dispute arising under this Agreement that involves a dispute between The DS3 Group and a person who is neither a citizen nor a resident of the United States, shall, at either party’s request, be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules, with such arbitration to be conducted in the UK or any other place as the parties to such arbitration may agree.
(c) Exceptions to Agreement to Arbitrate.
Notwithstanding the provisions of Subsections 22(a) (Arbitration of Domestic Disputes) and 22(b) (Arbitration of International Disputes), disputes pertaining to i) export controls, ii) unlawful Use of the The DS3 Group Products or Services, or iii) the scope, applicability, or compliance with governmental or court-ordered access to or limits on use of Website Data, shall not be resolved by arbitration, but shall instead by resolved by reference to a judicial or administrative body with jurisdiction over the dispute.
(d) Costs of Arbitration.
The administrative expenses, arbitrator fees, and facility charges associated with the arbitration, whether domestic or international, shall be split equally between the parties; provided that, in cases involving Consumer Licensees, the Consumer Licensee shall not be required to bear such expenses, fees, and charges in excess of One Thousand U.S. Dollars ($1,000), and The DS3 Group shall bear the remainder of such expenses, fees, and charges. If the dispute instigator can prove beyond reasonable doubt that $1,000 would create a hardship for them to pay, The DS3 Group would pay all costs. Each party shall be solely responsible for its attorney fees, expert witness fees, and other costs, fees, and expenses, except as may otherwise be provided in Section 18 (Indemnification).
(e) Discovery Procedures in Arbitration.
The parties shall be entitled to such discovery as is appropriate in the judgment of the arbitrator, in light of the nature and objectives of arbitration and to ensure that each party has an adequate opportunity to determine the factual bases for its claims and defences.
(f) Class Actions.
Class actions and other procedural devices, however denominated, that allow pursuit in a single proceeding of claims of more than one claimant unrelated by blood or marriage shall not be permitted in the case of arbitrations hereunder involving either Consumer Licensees or Commercial Licensees or both.
(g) Form and Effects of Award.
The arbitrator shall render a naked award. Judgment on any arbitral award under this Agreement may be entered in any court of competent jurisdiction. It is the intent of the parties that neither the award nor any resulting judgments have res judicata (claim preclusion) or collateral estoppel (issue preclusion) effects except as between the parties themselves. All other provisions of this Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the Commonwealth of Ohio, USA, without regard to conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods as well as any other similar law, regulation or statute in effect in any other jurisdiction shall not apply.
- TERMINATION, EXPIRATION, CANCELLATION
(a) Trial and Evaluation Accounts. If this Agreement pertains to a trial, beta, or evaluation account (such as an account that provides a limited amount or an unlimited amount of space for a website for free, for which you have not paid a fee and/or for which you do not pay a fee and associated taxes on or prior to expiration), the account granted under these Terms and Conditions of Use will terminate upon the expiration or cancellation of the trial or evaluation period, when the The DS3 Group Product or Service you are using is no longer made available, six (6) months from the date you first created an account for the The DS3 Group Product and Service, or when The DS3 Group cancels or terminates the account, whichever is shorter. You agree to Use the The DS3 Group Products or Services for no longer than the trial or evaluation period unless you enter into a subscription and pay a fee and associated taxes as applicable, or The DS3 Group allows your account to roll over for another six (6) month period which The DS3 Group may elect to do at its sole discretion and without notice to you.
(b) All Other Accounts; Limited Term. Your account will expire upon the sooner to occur of (i) expiration of your Subscription Period, (ii) upon your non-renewal of your subscription, (iii) upon your cancellation of the subscription, (iv) when The DS3 Group elects to discontinue the product, (v) upon your breach of these Terms and Conditions of Use (if such breach is not cured within the time indicated below in this Section 23) or (vi) when The DS3 Group cancels or terminates your account, (any such expiration, cancellation, discontinuation, or termination are referred to hereafter as “termination”).
(c)Termination for Unlawful or Abusive Use, Other Breach. The DS3 Group may block your access to your Website Data and/or terminate your Use of the The DS3 Group Products or Services if The DS3 Group reasonably believes that the Website Data may contain phishing attempts, malicious downloads, child pornography, pirated video files, pirated software, copyrighted data with the intent to distribute or is being used to support other types of illegal activities, if providing The DS3 Group Products or Services to a person located in a particular country would violate U.S. or other applicable law, or if your continued Use of The DS3 Group Products or Services may damage, disable, overburden, or impair our servers or networks. If you breach these Terms and Conditions of Use termination will be without notice and without any right to cure. Upon termination: i) you shall immediately cease any and all Use of the The DS3 Group Products or Services and delete all copies of them; ii) the The DS3 Group Software may be disabled by The DS3 Group without notice to you; and iii) you will no longer have the right to access or retrieve your Website Data; you hereby grant The DS3 Group at its sole discretion the unrestricted right to delete data without notice.
(d) For all the above cases, once a website or full account is cancelled, terminated, refunded or expires you will no longer have access to the affected website or full account. Access can only be granted to the account and/or website and it’s information, content and files by purchasing a subscription. We have the right to delete all information, content and files from the website or account and we accept no liability for any such deleted information, content or files.
(e) Free Domain Entitlement. Free domains are registered on annual intervals on the customer behalf, and will be renewed on annual basis for the lifetime of an account. If a Free domain has been redeemed as part of a website Upgrade and an early cancellation request has been received, The DS3 Group will deduct the cost of the domain $19.95 from any amount that is eligible for refund. If the refund amount is less than the cost of the domain, The DS3 Group will not issue any refund to the customer.
In the event of any termination, expiration, or cancellation, the restrictions on your Use of the Software and the other applicable restrictions as set forth in Section 4 (Lawful Use), Section 6 (The DS3 Group License), Section 8 (No Transfers or Modifications by You), Section 16 (Warranties), Section 17 (Limitation of Liability), Section 18 (Indemnification),Section 19 (Trademarks, Service Marks, and Other Intellectual Property), Section 20 (U.S. Government Restricted Right), Section 21 (High Risk Activity), Section 22 (Dispute Resolution, Governing Law, Venue), Section 24 (Survival), Section 25 (Notice), Section 28 (Limitation on Actions), Section 30 (Miscellaneous) and Section 31 (Severability) terms.
Any notice that may or must be given by The DS3 Group in connection with this Agreement or in connection with the Use of the The DS3 Group Products or Services, may be given by sending it to the email address provided by you upon registering for the The DS3 Group Products or Services or as you may provide from time to time thereafter by modifying your user profile at http://www.theds3group.com. You are responsible for ensuring that your accurate email address is available to The DS3 Group and provide any needed updates. The DS3 Group may, in its sole discretion, use other means of providing notice, such as: desktop notification; regular, certified, or registered mail; fax; commercial delivery service; or messenger. All such notices shall be deemed given when dispatched with payment of delivery charges made or arranged. You hereby consent to receiving notice by any such means. Notwithstanding the foregoing, The DS3 Group has no obligation to provide notice or attempt to locate a customer other than through the email address provided.
- ENGLISH LANGUAGE
These Terms and Conditions of Use were negotiated and written in English. Any inconsistency between the Terms and Conditions of Use as expressed in English and any other language shall, to the full extent permitted by applicable law, be resolved by reference to the English version. Les parties ont convenu de rediger cette entente en anglais.
- ENTIRE AGREEMENT; APPLICABILITY OF TERMS; CONSTRUCTION; LIMIT TO MODIFICATIONS; CONFLICTS IN TERMS
These Terms and Conditions of Use (including the items incorporated by reference and modifications that may be made from time to time), constitute the entire agreement between The DS3 Group and you regarding The DS3 Group Products or Services, and supersedes all prior agreements between you and The DS3 Group regarding the subject matters hereof. Any item or service furnished by The DS3 Group in furtherance of these Terms and Conditions of Use, although not specifically identified in them, shall nevertheless be covered by these Terms and Conditions of Use unless specifically covered by some other agreement entered into in written or electronic form between you and us. Any modification or change in these Terms and Conditions of Use proposed or offered by you shall not become a part of these Terms and Conditions of Use unless accepted in a writing dated after the effective date of the applicable Terms and Conditions of Use and signed by an authorized officer of The DS3 Group. Should there be any conflict in terms between this Agreement and any other document, the terms and conditions set forth in this Agreement shall govern. Any references that are singular or plural and any references that are masculine, feminine, or neuter in gender, are meant to be used interchangeably as the context of the sentence might imply.
- LIMITATION ON ACTIONS
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law must be commenced within six years after the cause of action accrues.
- COPYRIGHT INFRINGEMENT NOTIFICATION
As provided in the Digital Millennium Copyright Act of 1998, we have designated the following individual for notification of potential copyright infringement regarding Web sites hosted by The DS3 Group: firstname.lastname@example.org. If you believe content hosted by The DS3 Group infringes a copyright, please provide the following information to the person identified above (17 U.S.C. 512): (i) A physical or electronic signature of the copyright owner or authorized agent; (ii) Identification of the copyrighted work(s) claimed to have been infringed; (iii) Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) Information regarding how we may contact you (e.g., mailing address, telephone number, e-mail address); (v) A statement that the copyright owner or its authorized agent 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; and (vi) A statement that the information in the notification is accurate, and made under penalty of perjury, and, if an agent is providing the notification, a statement that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You agree to reimburse The DS3 Group for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by The DS3 Group. The DS3 Group is not responsible for misprints, errors or omissions in its advertising and promotional materials. If you have designated a person (whether by email, orally, by registering such person with The DS3 Group, by granting such person access to your username and password or by registering your website for The DS3 Group Products or Services where another party is paying for the building of your website) to have access to your Website Data, you hereby authorize The DS3 Group to give such designated person access to your Website Data, including without limitation in the event of your death or incapacity.
This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent underlying such provision and ii) such invalidity or unenforceability will not affect the validity or enforceability of any other provision of this Agreement and all such provisions shall remain in full force and effect.
- NO WAIVER
The Company reserves its right to take all legal steps available to enforce these Terms and Conditions of Use. The Company’s failure to enforce these Terms and Conditions of Use in every instance in which they might apply, or the failure to require at any time performance of any provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions or of the Company’s rights to enforce such provisions. No waiver of any provisions of this or any other Agreement with the Company shall be effective unless expressly stated to be such in writing and signed by both parties.
- BILLING PROCESS
Should The DS3 Group bill you for your The DS3 Group Product or Service on a monthly or periodic basis you agree that The DS3 Group will bill you exclusively in full month or periodic increments and that there will be no billing for partial months or periods for any reason. Any amounts billed are fully due and payable at the time the bill is rendered to you.
- BILLING ISSUES
You must notify us about any billing problems or discrepancies within sixty (60) days after they first appear on the statement you receive from your bank, credit card company, or other billing company. Send such notification to us at the The DS3 Group Contact Information indicated in Section 38 (The DS3 Group Contact Information) below. If you do not bring such problems or discrepancies to our attention within that sixty (60) day period, you agree that you waive the right to dispute such problems or discrepancies.
- MANAGING YOUR THE DS3 GROUP PRODUCT OR SERVICE
You acknowledge and agree that where The DS3 Group licenses The DS3 Group Products or Services to an entity or organization, or where an entity or organization makes the The DS3 Group Products or Services available to you, the entity or organization so licensed or giving you access may grant multiple individuals rights related to the management and Use of the The DS3 Group Products or Services and the Website Data, without any notice to you. These rights may enable one or more persons to: view, access or change Website Data or Personal Information; determine who can access the account, and Personal Information; determine who is responsible financially for the account; and other similar actions.
- USER CONTENT AND OWNERSHIP
(a) Ownership; The DS3 Group will determine the owner of website data created or uploaded to a website as follows:(i) The owner of website data created or uploaded to a free or trial user account (an account where The DS3 Group has not received payment for), shall be considered as the The DS3 Group account owner under which the website data has been created or uploaded to the Website; (ii) The owner of website data created with The DS3 Group that has an external URL, which can be a domain name purchased through The DS3 Group or linked to an account, shall be considered as the person or entity registered as the domain owner on the database. The DS3 Group reserves the right to only provide information and details regarding website data to the owners of such content as determined above.
(b) User Content; (i) The DS3 Group allows users to upload, publish, display and distribute information, text, photos, videos and other content on or through The DS3 Group Products or Services (referred to as “User Content”). User Content includes any content posted by you and users of any of your websites hosted through The DS3 Group Products or Services. The user is solely responsible for any and all User Content and any transactions or other activities conducted on or through User Websites. By posting or distributing User Content on or through The DS3 Group Products or Services, you represent and warrant to The DS3 Group that (a) you have all necessary rights to post or distribute such User Content, and (b) your posting or distribution of such User Content does not infringe or violate the rights of any third party.
(ii) You acknowledge and agree that The DS3 Group may, but is not obligated to, monitor User Content and may immediately take any corrective action in The DS3 Group’s sole discretion, including without limitation, removal of all or a portion of the User Content, and disconnection or discontinuance of any and all The DS3 Group Products or Services without refund of any pre-paid fees. You hereby agree that The DS3 Group shall have no liability due to any corrective action that The DS3 Group may take, including without limitation suspension, termination or disconnection of Services. (iii) You hereby grant The DS3 Group a non-exclusive, royalty-free, worldwide right and license to do the following to the extent necessary to provide The DS3 Group Products or Services: (i) to use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute User Content and the User Website; and (ii) make archival or back-up copies of the User Content and the User Website. Except for the rights expressly granted above, The DS3 Group is not acquiring any right, title or interest in or to the User Content, all of which shall remain solely with you.
- USER RESPONSIBILITIES.
(a) You will comply with all applicable laws, rules and regulations in connection with the User Content, User Websites and use of The DS3 Group Products or Services.
(c) You will cooperate fully with The DS3 Group in connection with provision of The DS3 Group Products or Services. It is solely your responsibility to provide any equipment or software that may be necessary for you to use the Services. Delays in your performance of your obligations under this Agreement will extend the time for The DS3 Group’s performance of its obligations that depend on your performance.
(d) You will be solely responsible for ensuring that all User Content and User Websites are
compatible with the hardware and software used by The DS3 Group to provide all Products or Services, which hardware and software may be changed by The DS3 Group from time to time in its sole discretion.
(e) You will be solely responsible for backing-up all User Content, including any User Websites. The DS3 Group is not responsible for the loss of any User Content.
(f) You will use your best efforts to ensure that the User Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
(g) You will not use The DS3 Group Products or Services in any manner, as determined by The DS3 Group in its sole discretion, that:
(i) Engages in or promotes illegal activity;
(ii) Engages in or promotes behaviour that is defamatory, harassing, abusive or otherwise objectionable;
(iii) Infringes the intellectual property rights or other proprietary rights of any third party;
(iv) Violates the privacy rights or publicity rights of any third party;
(v) Interferes with the operation of the Services; or
(vi) Violates the terms and conditions of this Agreement or any of the policies or agreements incorporated by reference herein.
(vii) Involves transmitting viruses, worms or malicious code.
- THIRD PARTY WEBSITES
(a) The DS3 Group Products or Services may contain links to other websites that are not owned or controlled by The DS3 Group (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties (“Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through The DS3 Group Products or Services or any Third Party Content posted on or made available through The DS3 Group Products or Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of the Third Party Sites or the Third Party Content. If you decide to access the Third Party Sites or to access or use any Third Party Content, you do so at your own risk and our terms and policies do not apply. You should review the applicable terms, policies and restrictions, including privacy and data gathering practices, of any site to which you navigate to and only use their products or services in relation to your account with The DS3 Group.
(b) Getty Images; End Users must agree to terms and conditions that require them to use Licensed Material from Getty Images solely in a manner consistent with the rights and restrictions in the Agreement between The DS3 Group and Getty Images, and have the effect that: (i) Licensed Material may only be used in End User Works created via the Licensee Website, for display solely in digital form. (ii) End Users may not modify, duplicate, sublicense, republish, retransmit, sell, modify, re-use, re-sell, distribute, display, reproduce or make any other use of Licensed Material. (iii) Licensed Material may not be used:
for pornographic, defamatory or other unlawful purposes;
except as otherwise expressly permitted hereunder, in electronic templates used to create electronic or printed products;
in physical or digital retail products, such as e-cards, calendars, posters, or screensavers;
for the purpose of enabling file-sharing of the image file; or
in logos, trademarks, services marks or any other branding or identifiers.
(c) If Licensed Material featuring an individual(s) is used in connection with a sensitive, unflattering or controversial subject, the End User must include a statement that the image is used for illustrative purposes only and the individual is a model.
(d) End Users may not activate the “right-click” function in Licensed Material, remove any metadata in Licensed Material, or reverse engineer, decompile, or disassemble the Licensee Website to enable the download or use Licensed Material on a stand-alone basis.
(e) No ownership or copyrights to Licensed Material are granted to End Users