Etech ASP, LLC Products and Services
Terms and Conditions of Use
Updated and effective as of 08/01/2015
READ THIS AGREEMENT CAREFULLY.
1. Definition of Terms
As used in these Terms and Conditions of Use:
"Etech ASP," "we," "us," or "our" mean Etech ASP, Inc. and its subsidiaries.
(b) "You," "yourself", "user," "subscriber," "client," and "customer" refer to the individual or legal entity registering for or using the Etech ASP Products or Services.
(c) "Etech ASP Products or Services" means virtual hosting, data backup services, Etech ASP Software, and any other products or services provided by Etech ASP or its authorized agents, distributors, and licensees.
(d) "Etech ASP Software" means software provided to you or for your use by Etech ASP.
(e) "Computer" means a server, desktop or laptop computer, network device, and any storage device attached to them in any fashion.
(f) "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, gender, year of birth, and postal code.
(g) 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 and/or by posting them to www.EtechASP.us website you visit to register for, subscribe to, license, buy, or use Etech ASP Products or Services.
(i) “Services” means those services described in the Virtual Agreement
(j) "Etech ASP Affiliate" means persons or entities who have provided products, licenses, or services to Etech ASP and persons or entities with which Etech ASP has entered into an agreement to sublicense or to provide Etech ASP Products or Services to users.
2. Etech ASP’s Obligations
Contingent on Etech ASP's acceptance of your signed Virtual Agreement, and subject to these Terms of Service, Etech ASP agrees to provide the Services. If you have met Etech ASP's minimum financial commitment for support, Etech ASP will provide support for the Services twenty four hours per day, seven days per week, year round. Etech ASP agrees to follow security procedures at least as stringent, in Etech ASP's reasonable judgment.
3. Customer’s Obligations
4. Access to the Services
You may access the Services via the online control panel, or via a Etech ASP-provided Application Programming Interface or API. Etech ASP may modify its control panel or APIs at any time, or may transition to new API's. Your use of any API you download from the Etech ASP website is governed by the license terms included with the code in the file named "COPYING" or "LICENSE" or like caption.
5. Acceptance of Terms and Conditions of Use; Modification; Cancellation
By registering to Use Etech ASP Products or Services, and each time you Use a Etech ASP 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 Etech ASP Products or Services and thereafter. If you do not agree to these Terms and Conditions of Use in their entirety, do not Use Etech ASP Products or Services.
Etech ASP may change the Terms and Conditions of Use at any time, without prior notice to you, and in its sole discretion. The new or modified Terms and Conditions of Use will be effective immediately upon posting on our website at www.EtechASP.us.
If you do not agree to be bound by Etech ASP’s Terms and Conditions of Use as Published by Etech ASP from time to time, your sole and exclusive remedy is to discontinue using Etech ASP Products or Services. If you wish to cancel your Etech ASP license after a change in the Terms and Conditions of Use, you must do so in writing or by email within thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate your Service because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
The initial term for each agreement begins on the date the agreement is signed and continues for the period stated in the agreement. If no period is stated in the agreement, then the initial term shall be one month. Upon expiration of the initial term, the agreement will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal 90 days prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow Etech ASP’s non-renewal process by providing in writing to Etech ASP via email or fax stating non-renewal request.
7. Requirements for Registration or Use of Etech ASP Products
Etech ASP 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. Etech ASP does not offer Etech ASP Products or Services to minors or where prohibited by law. By registering for and/or by Using Etech ASP 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 Etech ASP Terms and Conditions of Use and that you will Use Etech ASP Products or Services only in accordance with these Terms and Conditions of Use and with all applicable laws. If you are Using Etech ASP Products or Services on behalf of an entity or organization, you warrant, represent, and covenant to Etech ASP that you are duly authorized to agree to these Terms and Conditions of Use on behalf of the organization and to bind the organization to them.
You agree to provide accurate and complete information when you register for an Etech ASP Product or Service and you agree to keep such information accurate and complete during the entire time that you Use Etech ASP Products or Services.
We may ask you from time to time to establish a user name or password to access or Use the Etech ASP 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.
8. Lawful Use of Etech ASP Products or Services
You may not Use Etech ASP Products or Services for any unlawful purpose.
Without limiting the foregoing:
(a) Etech ASP Products or Services may not be Used to store, backup, 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 Etech ASP 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, or any other country to which the United States has prohibited export. Each time you Use Etech ASP 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 Etech ASP 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 Etech ASP Software, directly or indirectly, to persons on the above mentioned lists; (v) You will neither Use nor allow the Etech ASP 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 Etech ASP Software will not be exported, directly, or indirectly, in violation of these laws, nor will the Etech ASP Products or Services be Used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation; and (vii) You are not using or permitting others to Use Etech ASP Products or Services to create, store, backup, distribute, or provide access to child pornography.
9. Changes to the Etech ASP Products or Services
Etech ASP has the right at any time to change, modify, add to, discontinue, or retire any Etech ASP Product or Service and any aspect or feature of the Etech ASP Products or Services including, but not limited to, the software, hours of availability, equipment needed for access or Use, the types of files that are backed-up (not every file on your computer is backed-up), the maximum disk space that will be allotted on Etech ASP servers on your behalf either cumulatively or for any particular service or computer, or the availability of Etech ASP Products or Services on any particular device or communications service.
Etech ASP will provide notice of material changes to the Etech ASP Products or Services or changes to this Agreement by posting them to the www.EtechASP.us. Etech ASP 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, Etech ASP may issue new releases, revisions, or enhancements to the Etech ASP Products or Services available to you free of charge or for a fee. New releases, revisions or enhancements may be licensed, downloaded, and installed only to the extent that you hold a valid license to Use the Etech ASP 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.
Etech ASP may automatically update Etech ASP Products or Services you have installed on your computer 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, Etech ASP may, in its sole discretion, terminate your current license, continue to support your current Etech ASP Products or Services without the automatic update, or replace your Etech ASP Products or Services with other Etech ASP Products or Services. If Etech ASP terminates your current license on account of your failure or refusal to approve such fees, then Etech ASP will refund, on a pro-rata basis based on the remaining term of the current license, any fees related to the period during which you will not have access to your Etech ASP Products or Services. If Etech ASP updates the Etech ASP 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 Etech ASP Products and Services.
10. Etech ASP License to You; Renewals, Modifications, Limits
(a) Scope of License. Etech ASP grants you a personal or business agreement, non-exclusive, non-transferable limited and revocable license to install the Etech ASP Software only on one computer per
license for which you have paid the applicable fees and taxes and from which you are licensed to access the Etech ASP Products or Services, and to Use the Etech ASP Products or Services for the sole and exclusive purposes of connecting to and using the Etech ASP Products or Services for your personal or internal business purposes in accordance with these Terms and Conditions of Use, provided you comply and remain in compliance with this Agreement. We reserve all other rights to the Etech ASP Products or Services.
You may Use a license for the Etech ASP Products or Services with only one computer at a time. You may transfer your license to another computer in the event that you cease to use the computer on which Etech ASP Software was originally installed. If you wish to protect multiple computers, you must obtain a separate paid license for each computer or you must obtain a multi-computer license which will be applicable to the number of computers stated in such license. To obtain such a license, contact us at the place indicated in Section 34 (Etech ASP Contact Information).
You may not sub-license, or charge others to Use or access, the Etech ASP Products or Services and you may not redistribute the Etech ASP Products or Services or provide others with access to or Use of them. You will not permit others to Use the Etech ASP Products or Services to access or decrypt data stored on servers provided by Etech ASP or Etech ASP Affiliates; you will not Use or permit others to Use the Etech ASP Products or Services to decrypt data encrypted by others; and you will not Use or permit others to Use the Etech ASP Products or Services to provide encryption or decryption services to others, whether or not such services are compensated.
(b) Renewals. You agree that Etech ASP shall have the right to automatically and without notice renew your license to continue to Use the Etech ASP Products or Services upon expiration of your then-current license, and that as part of such renewal Etech ASP shall have the right to charge the applicable renewal fees and any applicable taxes to any credit card you used to purchase your then-current license. You agree that if you elect to not permit Etech ASP the right to automatically renew your license to Use Etech ASP Products or Services or your credit card information on file with Etech ASP does not permit automatic renewal, then Etech ASP may terminate your license.
You agree that if you have licensed Etech ASP Products or Services for a period of greater than ninety (90) calendar days you have thirty (30) calendar days from the date that your license was renewed to elect to discontinue your Use of Etech ASP Products or Services. If you have licensed Etech ASP Products or Services for a period of less than or equal to ninety (90) calendar days you have seven (7) calendar days from the date that your license was renewed to elect to discontinue your Use of Etech ASP Products or Services. If you elect to discontinue your Use of Etech ASP Products or Services within this period, you will be issued a full refund for the amount of your license renewal. You are responsible for ensuring that Etech ASP has current and accurate records necessary, to renew your license, including without limitation, credit card data.
(c) Upgrades. Etech ASP may in its sole discretion provide automatic upgrades to the Etech ASP Products or Services. These upgrades may not be consistent across all platforms and computers and that the performance and features offered by Etech ASP may vary depending on your computer and other equipment. You agree that we may automatically check your version of the Etech ASP Software and
automatically update the Etech ASP Software on your computer. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related activities and services. If you shut down your computer or the Etech ASP Software during an automatic update or otherwise interfere with the installation of the update, the software may be damaged and/or cease to operate.
11. Assignment and Delegation by Etech ASP
Etech ASP may, in its sole discretion, transfer or assign all or any part of its rights in the Etech ASP Software, the Etech ASP 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 Etech ASP Products or Services, licenses, or other contracts.
12. No Transfers or Modifications by You
You may not sell, assign, grant a security interest in or otherwise transfer any right in the Etech ASP Products or Services, nor incorporate them (or any portion of them) into another product or service. You may not copy the Etech ASP 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 Etech ASP Software or decrypt any files that are not associated with your computer.
You may not modify the Etech ASP 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 Etech ASP Products. You may not authorize or assist any third party to do any of the foregoing.
If you have an unmanaged virtual server, you agree and acknowledge that Etech is not responsible or liable for backing up the server and/or any data on the server.
14. Protection of Files
You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. Etech ASP is not responsible to you for unauthorized access to your data or the unauthorized use of the Services. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
15. Customer Support
Etech ASP may, in its sole discretion, provide customer support or service to its customers. This service may be available only on selected days and during a limited number of hours. Service may also be available through only 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 Etech ASP may employ a variety of tools or services to aid in the process of resolving your issues as a user. You grant Etech ASP the right to use these tools and hold Etech ASP harmless for the use of these tools as well as the guidance provided by its customer support staff who in no way can be fully aware of all of the complexities associated with the Etech ASP product, your computer, or all of the related or associated infrastructure such as your internet service provider’s infrastructure.
16. Restrictions on Access to Etech ASP Products or Services
You may access Etech ASP Products or Services only through the interfaces and protocols provided or authorized by Etech ASP. You agree that you will not access Etech ASP Products through unauthorized means, such as unlicensed software clients.
You may not use Etech ASP’s network or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:
Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
Interference with service to any user of the Etech ASP or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
Use of an Internet account or computer without the owner's authorization;
Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
Collecting or using information without the consent of the owner of the information;
Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft's "ad/remove" tool); or
Any conduct that is likely to result in retaliation against the Etech ASP or website, or the Etech ASP employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).
You may not use your Service in a way that unnecessarily interferes with the normal operation of the Etech ASP services generally. In such circumstances, we may require you to repair abnormalities in your code if the operation of the code unnecessary conflicts with other customers' use of their services.
You must obtain the Etech ASP’s advance approval for any bulk or commercial e-mail, which will not be given unless you are able to demonstrate, at a minimum, that:
your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
you retain evidence of the recipient's consent in a form that may be promptly produced on request, and you honor the recipient's and the Etech ASP’s requests to produce consent evidence within 72 hours of receipt of the request;
You have procedures in place that allow a recipient to revoke their consent – such as a link in the body of the email, or instructions to reply with the word "Remove" in the subject line; you honor revocations of consent within 48 hours, and you notify recipients that the revocation of their consent will be implemented in 48 hours;
You must post an email address for complaints (such as email@example.com) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
You have the means to track anonymous complaints;
You must not obscure the source of your e-mail in any manner. Your e-mail must include the recipient's e-mail address in the body of the message or in the "TO" line of the e-mail;
You must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.
These policies apply to messages sent using the Services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via the Services. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. These requirements apply to distribution lists created by third parties to the same extent as if the list were created by you.
Etech ASP may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time. In addition, the Etech ASP may block the transmission of email that violates these provisions.
In addition to the requirements above, you may not send email messages of similar content through the Etech ASP SMTP servers to more than two-hundred and fifty (250) recipients. Attempts to circumvent this restriction by breaking up bulk email over time, using multiple accounts, or other means will be a violation of this restriction.
Etech ASP may block mail that violates these terms. In addition, your mail services may be suspended or terminated for violation in accordance with the Terms of Service.
You must have valid and current information on file with your domain name registrar for any domain hosted with Etech ASP.
You may only use IP addresses assigned to you by the Etech ASP in connection with your the Etech ASP services.
You agree that if the Etech ASP IP numbers assigned to your account are listed on an abuse database like you will be in violation of these terms, and Etech ASP may take reasonable action to protect its IP numbers, including suspension and/or termination of your service, regardless of whether the IP numbers were listed as a result of your actions;
You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.
You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use Etech ASP 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 Etech ASP Products or Services.
19. Termination and Fair Use Policy
ETECH ASP SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF ETECH ASP PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY ETECH ASP TO BE USING THE ETECH ASP PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY ETECH ASP OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER’S ACCOUNT WITH ETECH ASP AND THE LICENSE TO USE THE ETECH ASP PRODUCTS OR SERVICES.
You agree that we may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of Etech ASP 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 Etech ASP Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of Etech ASP’s customers, generally. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan that will permit you to continue to use Etech ASP Products or Services. Although violations of this policy have been infrequent, we nevertheless reserve the right to terminate or suspend your license and any license to use the Etech ASP Software, without prior notice in the event of a violation of this policy.
(a) WARRANTY. Etech ASP warrants that the Etech ASP Products or Services will for a period of thirty (30) days from the date of registration and payment perform substantially as specified in the applicable
Etech ASP documentation. If you satisfactorily demonstrate to Etech ASP within such thirty (30) day period that a Etech ASP Product or Service contains errors, then at Etech ASP’s sole and exclusive liability and as your sole and exclusive remedy, Etech ASP shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the Etech ASP Product or Services affected with a substantially conforming product or service, or refund the fee you paid for the Etech ASP Product or Service for the 30 day period and terminate your license under the Terms and Conditions of Use. Etech ASP does not warrant the results of its correction or replacement Etech ASP Products or Services. Correction or replacement under this Section 17 (Warranties), and the issuance of any corrections, patches, bug fixes, workarounds, upgrades, enhancements, or updates by Etech ASP to you, shall not be deemed to begin a new, extended, or additional license, license 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. Etech ASP and the Etech ASP Affiliates do not warrant that the functions contained in the Etech ASP Products or Services will meet your requirements, that the operation of the Etech ASP Products or Services will be uninterrupted or error-free, or that defects in the Etech ASP Products or Services will be corrected. Etech ASP and Etech ASP Affiliates do not warrant or make any representations regarding the use or the results of the use of the Etech ASP Products or Services in terms of their correctness, accuracy, reliability or otherwise. Etech ASP and Etech ASP Affiliates do not represent or warrant that users will be able to access or use the Etech ASP Products or Services at times or locations of their choosing, or that Etech ASP and Etech ASP Affiliates will have adequate capacity for any user’s requirements. No oral or written statement, information or advice given by Etech ASP, Etech ASP Affiliates, or their respective employees, distributors, dealers, or agents shall create any warranties in addition to those express warranties set forth in this Section 17 (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.
21. Limitation of Liability
Neither Etech ASP nor any Etech ASP Affiliate assumes any liability to any party other than you arising out of your Use or inability to Use the Etech ASP Products or Services. The limitations of damages set forth above are fundamental elements of the bargain between Etech ASP and you. Etech ASP would not be able to provide the Etech ASP Products or Services to you without such limitations.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS ETECH ASP, ETECH ASP AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, ARISING OUT OF YOUR USE OF THE ETECH ASP PRODUCTS OR SERVICES AND/OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND CONDITIONS OF USE.
ETECH ASP 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, SHALL YOU HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR ETECH ASP IN THAT MATTER. If Etech ASP chooses to provide its own defense in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defense of Etech ASP and Etech ASP Affiliates, at your own expense, to the full extent requested by Etech ASP.
23. IP Addresses
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Etech ASP in connection with Services, including pointing the DNS for your domain name(s) away from Etech ASP Services.
You may not assign the Agreement without Etech ASP’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Etech ASP may use third party service providers to perform all or any part of the Services, but Etech ASP remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Etech ASP performed the Services itself.
24. Trademarks, Service Marks, and Other Intellectual Property
All trademarks, service marks or other similar items appearing on the Etech ASP Products or Service are the property of their respective owners, including, without limitation, Etech ASP, Inc.
The Etech ASP Products or Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the Etech ASP Products or Services shall remain with Etech ASP and its licensors. You agree not to take any action to jeopardize, limit, or interfere in any manner with Etech ASP’s or its licensor’s ownership of or rights with respect to the Etech ASP Products or Services.
25. U.S. Government Restricted Right
The Etech ASP 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 Etech ASP Software with only those rights set forth therein.
26. High Risk Activity
You acknowledge and agree that the Etech ASP 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 Etech ASP makes no warranty and shall have no liability arising from any Use of the Etech ASP Products or Services in any high risk or strict liability activities.
27. Law and Jurisdiction
This Agreement is to be construed under the laws of the State of Iowa without reference to conflict of laws principles and the exclusive jurisdiction shall be a court of competent jurisdiction in Polk County, Iowa.
28. Termination, Expiration, Cancellation
(a) Trial and Evaluation Licenses. If this Agreement pertains to a trial, beta, or evaluation license (such as a license that provides a limited amount of back-up 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 license granted under these Terms and Conditions of Use will terminate upon the expiration or cancellation of the trial or evaluation period, when the Etech ASP Product or Service you are using is no longer made available, one (1) month from the date you first installed the Etech ASP Product and Service, or when Etech ASP cancels or terminates the license, whichever is shorter.
(b) All Other Licenses; Limited Term. Your license will end upon the expiration of its stated term, upon your non-renewal of the licenses, upon your cancellation of the license, when Etech ASP elects to
discontinue the product, 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 (Termination, Expiration, Cancellation), or when Etech ASP cancels or terminates your license, whichever occurs first (any such expiration, cancellation, discontinuation, or termination are referred to hereafter as "termination.")
(c) Termination for Unlawful or Abusive Use, Other Breach. Etech ASP may block your access to your Backup Data and/or terminate your Use of the Etech ASP Products or Services if Etech ASP reasonably believes that the Backup Data may contain child pornography or are being used to support other types ofillegal activities, if providing Etech ASP 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 Etech ASP Products or Services may damage, disable, overburden, or impair our servers or networks.
If you breach these Terms and Conditions of Use, your right to Use the Etech ASP Products or Services shall automatically terminate if you fail to cure the breach after seven (7) calendar days after notice from Etech ASP or any of the Etech ASP Affiliates, unless your breach is due to violations of Section 4 (Lawful Use), Section 8 (No Transfers or Modifications by You), Section 18 (Indemnification), Section 19 (Trademarks), Section 20 (U.S. Government Restrictions), in which case termination will be without notice and without any right to cure.
Upon termination: i) you shall immediately cease any and all Use of the Etech ASP Products or Services and delete all copies of them; ii) the Etech ASP Software may be disabled by Etech ASP without notice to you; and iii) you will no longer have the right to access or retrieve your Backup Data; you hereby grant Etech ASP the unrestricted right to delete all such Personal Information and Backup Data at any time after termination, without notice.
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 (Etech ASP 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), and Section 30 (Miscellaneous) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms
Any notice that may or must be given by Etech ASP in connection with this Agreement or in connection with the Use of the Etech ASP Products or Services, may be given by sending it to the email address provided by you upon registering for the Etech ASP Products or Services or as you may provide from time to time. You are responsible for ensuring that your accurate email address is available to Etech ASP and provide any needed updates. Etech ASP 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, Etech ASP has no obligation to provide notice or attempt to locate a customer other than through the email address provided.
31. 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.
32. 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 Etech ASP and you regarding Etech ASP Products or Services, and supersedes all prior agreements between you and Etech ASP regarding the subject matters hereof.
Any item or service furnished by Etech ASP 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 Etech ASP.
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.
33. 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 one year after the cause of action accrues.
34. 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 Etech ASP: support@EtechASP.us
If you believe content hosted by Etech ASP 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 Etech ASP 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 Etech ASP.
Etech ASP 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 Etech ASP, or by granting such person access to your username and password) to have access to your Backup Data, in the possession or control of Etech ASP, you hereby grant Etech ASP the right to give that person access to your Backup 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.
37. Billing Issues
You must notify us about any billing problems or discrepancies within thirty (30) days after they first appear on the statement you receive from your bank or credit card company or other billing company. Send such notification to us at the Etech ASP Contact Information indicated in Section 33 (Etech ASP Contact Information) below. If you do not bring such problems or discrepancies to our attention within that thirty (30) day period, you agree that you waive the right to dispute such problems or discrepancies.
38. Etech ASP Contact information
If you have any questions or comments, please contact us at support@EtechASP.us.