This agreement (the "Agreement") is made by and between Race Telecommunications, Inc. ("Race") and its customers ("Customer(s)") regarding services provided by Race. For the monetary consideration exchanged between the parties, the mutual promises contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, Race and the Customer agree that Race will provide one or more of the following services to Customer: (1) Rental of one or more internet servers; (2) Lease space for customer's server or servers; (3) Bandwidth; and (4) Website posting and/or other related services.
In addition, Race's Customers, any person or entity using the services, directly or indirectly, provided by Race, agree to the terms, conditions and notices contained in this Agreement. Customers agree to notify and secure the agreement from its own customers and users to the terms of this Agreement. If any such Customer, person or entity does not agree to these terms, they are hereby prohibited from using the services, directly or indirectly. The parties and any users agree that Race has the right, at its discretion, to update or revise the terms of this Agreement without notice in the future. The parties and users agree to check the terms of this Agreement periodically for changes. It is hereby agreed that continued use of these services constitutes acceptance of any such changes.
Responsibility for Content
The Customer understands that Race is not responsible for any conduct, content, goods and services that are or may be available through the internet using Race's services. The Customer agrees that Race is not responsible for the accuracy or quality of any information obtained through the internet.
The Customer and/or its users agree to comply with all applicable laws, rules, and regulations in connection with Customer's use of the service provided by Race. The Customer agrees not to upload, transmit, or post copyrighted material, including trademarks or otherwise protected material, to the internet without express authorization or a purchased license of the owner(s) or the person(s) owning the copyrighted material. It is agreed that some of the services provided by Race make Race a "service provider" as defined in the Digital Millennium Copyright Act, and therefore Race has no responsibility for the content of Customer's websites. If Race receives a copyright complaint, Race may, at its sole discretion, require a copy of any and all legal documentation showing rightful ownership, or license distribution for any item displayed on Customer's website so as to resolve the complaint or claim. If Customer is unable to provide such information to Race, within a reasonable time, then Customer must remove the questionable material, or face having the applicable pages deleted by Race.
Customer agrees to keep its site free of any illegal content including, but not limited to, threats of physical harm to persons or property, programs containing viruses, pirated software, child pornography, and violations of international export control laws. Customer is solely responsible for every aspect of its on-line business and/or sites. Without limitation, Customer is solely responsible for the security of any of its own customers' information, including credit card numbers. Customer hereby authorizes Race to delete any of Customer's data which Race reasonably believes violates any law or violates this Agreement.
Customer agrees to fully comply with the United States FTC Act and any related rules, regulations and advisory opinions issued by the FTC. Customer agrees to avoid unfair or deceptive advertising and, in particular with the FTC Act, Customer agrees to be in compliance with the FTC Act with regard to any representations and disclosures.
Customer agrees that Race has not provided any legal advice in the past or by way of this Agreement and represents to Race that it will seek legal counsel from any attorney of its own selection to advise it on all legal issues related to this Agreement.
Customer agrees that it is its responsibility to and it will comply with all laws, rules and regulations that apply to Customer's business, not just the FTC rules discussed herein. Customer agrees that it will review the FTC website and will consult with its own attorney regarding any questions related to the FTC rules or other laws, rules and regulations. As an example of the FTC rules, Customer agrees that any and all use of the word "free" must comply with said rules and regulations as embodied in the FTC Guide concerning use of the word "free" and similar representations, a copy of which may be found at http://www.ftc.gov/bcp/guides/free.htm.
Unsolicited Commercial Bulk E-Mail
Customer agrees not to use any of Race's services, directly or indirectly, to solicit the performance of any activity that is prohibited by law or for the illegal distribution of Unsolicited Commercial Bulk E-Mail ("UCBE"), commonly known as "SPAM," nor will Customer forge or use without authorization, any mail header information. Customer agrees and understands that several states and the federal government have proposed and/or passed legislation into law to control UCBE.
Race reserves the right to reject postings from newsgroups where it has actual knowledge that the content of the newsgroup violates this Agreement. Customer agrees to abide by established Usenet conventions (more commonly known as "Netiquette") and Customer is advised to check the rules and prohibitions for each Usenet site. Customer is prohibited from forging Usenet header information, posting chain letters, inappropriate messages or posting encoded binary to Usenet newsgroups not specifically named for that purpose.
In the case of adult oriented sites, Customer agrees to present a disclaimer and a means of an exit to visitors before granting access to any area deemed as adult in nature, sexually explicit or unsuitable materials for minors. Race may, at any time, at its sole discretion, require the Customer to provide legal documentation fulfilling the requirements of the federal law, 18 U.S.C. Section 22.57 for their review. Any Customer found to be in noncompliance with 18 U.S.C. Section 22.57 or any other applicable law may have their account suspended or revoked, and their inappropriate documents or photographs deleted, at the sole discretion of Race.
Any violation of system or network security is prohibited and may result in criminal and civil liability. Unauthorized access of the servers is strictly prohibited. Customer agrees to not engage in such activity or to attempt to breach the servers for the purpose of altering or manipulating the hardware or software, compromising the servers, or for any unauthorized use commonly known as "hacking." In addition, Customer is prohibited from the following: (1) Any unauthorized access to or use of data, systems or networks; (2) Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network; (3) Without authorization, interference with service to any user, host or network; (4) Introducing a malicious program into the network or server (i.e., viruses and worms); (5) Unauthorized use of, or forging, any header or any part of the header information in an e-mail or newsgroup posting; (6) Circumventing user authentication or security of any host, network or account. (7) Attempting to cancel, supercede or otherwise interfere with Usenet or e-mail posts other than one's own; and (8) Using an account at another provider to promote your site with Race in an abusive manner.
Customer is prohibited from utilizing Race's service for the purpose of compromising the security or tampering with system resources or accounts on computers at Race's or any other site. In the event Customer is involved in systems security, Race reserves the right to release information about Customer to system administrators at other sites in order to assist in resolving security incidents and Race shall cooperate with any law enforcement agency investigating a criminal violation of a system or network security. This paragraph is controlled by the "Liability of Customer" paragraph set out below.
Liability of Race
Customer agrees that the liability of Race shall be limited to damages not to exceed the amount Race charges Customer for any period in which Race fails to provide the agreed upon services, if any, only if Race's failure to provide the services are Race's fault and a violation of this Agreement.
By using or otherwise benefitting from the services provided by Race, to the extent allowed by law, Customer and/or its users hereby waive their rights under the Deceptive Trade Practices-Consumer Protection Act, Section 17.41 et seq., Business & Commerce Code, a law that gives consumers special rights and protections. After consultation with an attorney of my own selection, I voluntarily consent to this waiver.
In addition, all services provided by Race are provided "AS IS" for your use. The services are provided without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Use of these services is solely at the user's risk. Because some jurisdictions do not permit the exclusion of certain warranties, these exclusions may not apply to you.
Under no circumstances shall Race, its subsidiaries, licensors, employees, officers, directors, or agents be liable for any direct, indirect, punitive, incidental, special, or consequential damages that may result from the use of or inability to use, the services of Race as contemplated by this Agreement. The limitation of liability described herein applies whether the alleged liability is based on contract, tort, or any other basis, even if Race has been advised of the possibility of such damage. Because some jurisdictions do not allow the exclusion of such limitation of incidental or consequential damages, Race's liability in such jurisdictions shall be limited to the extent permitted by law.
Liability of Customer
By using the services of Race, Customer agrees to defend, indemnify, and hold Race and its subsidiaries, affiliated companies, and all of their employees, contractors, officers, directors, agents, and assigns, harmless from any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action, arising from or in way related to the services provided by Race or the terms of this Agreement.
Arbitration and Choice of Law and Forum
Customer and its users agree that any dispute with Race shall be resolved by binding arbitration as provided by Title 7 of the California Civil Practice and Remedies Code. This Agreement and any proceeding necessary for arbitration shall be governed by and construed in accordance with the laws of the State of California. By using the services of Race, Customer and other users agree that exclusive jurisdiction for any claim, arbitration matter, or action arising out of or relating to the services under this Agreement or this Agreement itself, shall be filed only in state court in San Mateo County, California, and Customer and/or users by using the services of Race agree and submit to the exercise of residential jurisdiction of such courts for the purpose of litigating any such claim, matter, or action. The parties agree that they are waiving any right they have to a trial by jury.
Severability and Integration
Unless otherwise specified herein, this Agreement constitutes the entire agreement between Customer and Race with respect to the services provided by Race and supercedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between Customer and Race with respect to the services provided by Race. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in force and effect. However, Race and Customer may enter into a separate agreement regarding Race's rates and charges and the services provided by Race to the Customer.
In the event that Customer has not complied with any part of this Agreement or fails to pay the monthly charges agreed to, Race reserves the right to alter access to the service, or terminate the service, without notice to, or authority from Customer, and the Customer forfeits any prepaid amounts to Race.
Customer agrees that Race shall have no liability for Customer's information, files, documents, Customer lists and/or information, or other property. Customer also agrees that all risk of loss shall remain with Customer and that Customer will carry sufficient insurance to protect its interests in its software, information, and any hardware.
Customer is responsible to regularly back-up its information, purchase, install and maintain any anti-virus software necessary, and to purchase and install programs to minimize the risk of hacking from third parties. Customer understands that any system is at risk of "hacking," viruses and worms, or "acts of God." Customer assumes all responsibility for such risks.
Acceptable Use Policy Revisions
Race may at any time revise the Acceptable Use Policy without notice by updating this posting. By using this Site, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current Acceptable Use Policy to which you are bound.