Last Updated: January 23, 2013
The following Terms of Service apply to all users of the DreamObjects™ cloud storage service and its associated websites, software, hardware, infrastructure, application program interface(s) (“API”), content, trademarks and other associated materials and properties (collectively, the “Service”), which is provided to you by New Dream Network, LLC, doing business as DreamHost (“DreamHost”). The following Terms of Service is a legal contract between you, an individual user or a single entity (collectively or individually “Users”) and DreamHost regarding your use of the Service. Together, Users and DreamHost are each referred to individually as a “Party” or collectively as the “Parties.” When using the Service, you will be subject to any additional posted guidelines, policies or rules applicable to specific services and features which may be posted from time to time (collectively, the “Policies”). All Policies are incorporated by reference into these Terms of Service.
BEFORE USING THE SERVICE, PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR AND/OR ACCESSING, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE POLICIES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS OF SERVICE” OR “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SERVICE.
1. Eligibility. In order to use the Service, you must either be the age of majority in your jurisdiction, an emancipated minor, or possess legal parental or guardian consent, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties described in these Terms, and to abide by and comply with these Terms. You represent that you meet the eligibility requirements in this Section. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are accepting these Terms on behalf of an entity, you represent to us that you have legal authority to accept these Terms on the entity’s behalf .
3. Modification of the Terms. DreamHost reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time for any reason DreamHost may notify you of any changes through a variety of means, including a change to the “Last Updated” date set forth above. All changes shall be effective immediately. In the event of a material change that may directly affect your account, we will notify you via the most recent e-mail address that you have provided to us in conjunction with your account. You must periodically review these Terms for any changes, even if DreamHost does not notify you that these Terms were changed. If you continue to use the Service after DreamHost changes these Terms, you automatically agree to be bound by the new Terms even if you did not read them.
4. Permitted Use.
(a) General Terms. DreamHost grants you permission to use the Service, but only if: (i) you do not engage in any of the prohibited uses described in these Terms; (ii) while using the Services, you do not violate any laws and regulations (including without limitation the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control); and (iii) you otherwise fully comply with these Terms. DreamHost controls and offers the Service from its facilities in the United States of America. DreamHost makes no representations that the Service is appropriate, or that it may be lawfully accessed from other countries or locations. If you are accessing or using the Service from other jurisdictions, you do so at your own risk, and you are responsible for compliance with all local law.
(b) Standard of Conduct. By applying for, or using the Service, you agree to abide by the following DreamHost’s Acceptable Use Policy (“AUP”), which describes the acceptable use of the services and its associated websites, software, hardware, infrastructure, application program interfaces (“API”), content, trademarks, and other associated materials and properties. This description is not meant to be exhaustive, but is intended to illustrate examples of conduct that may result in a block of User Content, or in suspension or termination of your or End User’s access to Service. The AUP requires you to agree:
- that you will not collect, or attempt to collect, personal information about any End User or third party without their knowledge and consent;
- that you will not intentionally attempt to or actually interfere with, or damage, impair, or disable the Service or any user’s enjoyment of the Service by any means, including, but not limited to, uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or by placing a disproportionate load on the Service with the intended result of denying service to others;
- that you will not attempt to or actually remove, circumvent, disable, damage, or otherwise interfere with (i) any security-related feature of the Service, (ii) any feature that prevents or restricts the use of any part of the Service, or (iii) any feature that enforces limitations on the user of the Service;
- that you will not attempt to or actually gain unauthorized access to the Service or to any part of the Service, to other accounts, to computer systems or networks connected to the Service or any part of it, through hacking, password mining, or any other means;
- that you will not attempt to or actually interfere with the proper working of the Service or any activities conducted through the Service;
- that you will not attempt to or actually obtain any materials or information through any means not intentionally made available through the Service;
- that you will not attempt to or actually modify the Service in any manner or form, or contribute any User Content, other than using the API in the manner expressly permitted by DreamHost and the Service;
- that you will not attempt to or actually use any DreamHost logos, graphics, or trademarks as part of the link, without DreamHost’s express written consent;
- that you will not attempt to or actually reverse engineer, decompile, disassemble or otherwise attempt to discover DreamHost’s proprietary source code of the Service or any of its parts, except and only to the extent that an applicable law may expressly permit;
- that you will not attempt to or actually impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- that you will not attempt to or actually infringe upon, violate, or misappropriate any third party’s intellectual property rights or other proprietary rights of which you are aware or should be aware, either through your own conduct or through the conduct of your End Users, to the extent that you fail to take reasonable steps to prevent;
- that you will not attempt to or actually engage in any activity that is or is designed to promote fraudulent or illegal activities, including, without limitation, phishing or otherwise obtaining financial or other personal information in a misleading manner or for misleading purposes;
- that you will not attempt to or actually engage in spamming or other advertising or marketing activities that violate any applicable laws, regulations, or generally-accepted advertising-industry guidelines, which you acknowledge you are familiar with;
- that you will not attempt to or actually request, collect, solicit, or otherwise obtain access to usernames, passwords, or other authentication credentials from any users of the Service, or to proxy authentication credentials for any users of the Service, for the purposes of automating logins to the Service;
- that you will not impose or purport to impose any obligation on any person, or grant or purport to grant any right, power, or authority to yourself or any other person, that would be inconsistent with these Terms, which obligation, right, power, and authority will be deemed null and void;
- that you will not attempt to or actually remove, obscure, or alter any notice of patent, copyright, trademark, or other proprietary right appearing on the User Content, API, or Service;
- that you will not attempt to or actually conceal your identity or Your Application’s identity when requesting authorization to use API;
- that you will not attempt to or actually use API for any application that constitutes, promotes, or is used in connection with spyware, adware, other malicious programs or code;
- that you will not attempt to or actually use API in a manner that adversely impacts (as DreamHost may determine in its sole discretion after a notice to you) the stability of DreamHost’s servers or of the Service, or the behavior of other applications using the API.
You will also require your End Users to abide by the above Use Restrictions, and will make every commercially and technologically possible effort to ensure your End Users abide by the above Use Restrictions. If you become aware of any User Content or activity that violates these Terms or the AUP in general, or the above Use Restrictions in particular, you (i) agree to take all necessary steps to prevent the activity and such User Content from being routed to, passed through, or stored on the Service; (ii) agree immediately to notify DreamHost of any such activity; and (iii) agree fully to cooperate with DreamHost’s review, inquiry, investigation, and corrective action that DreamHost deems necessary or desirable to correct any suspected violation.
(c) DreamHost’s Remedies. If DreamHost determines in its sole discretion that you or an End User violated any of the above Use Restrictions, DreamHost may immediately block access to such User Content, suspend or terminate your or End User’s access to the Service, or take any other action that DreamHost deems appropriate. DreamHost may also cooperate with legal authorities and third parties in the investigation of any suspected wrongdoing, which may include disclosing the identity and personal identifying information of the party that DreamHost determines (in its sole discretion) may be responsible for the wrongdoing. DreamHost may give you notice that you or an End User may have violated the above Use Restrictions and give you a reasonable opportunity to cure any suspected violation before your or End User’s access to the Service is suspended or revoked, or access to User Content is removed, DreamHost is not required to do so. DreamHost will not be liable to you, an End User, or any third party affiliated with you or an End User, for any direct, indirect, or incidental damages that may result from DreamHost’s blocking access to User Content, or suspending or terminating your or an End User’s access to Services, under these Terms and the AUP.
(d) Acknowledgment. By using the Service, you acknowledge and agree (i) that you have read the AUP as described above, (ii) that you will make the terms of AUP available to End Users, (iii) that you will ensure that End Users comply with the AUP, and (iv) that you will be responsible for End Users’ conduct that violates AUP.
(e) Representations and Warranties. By using the Service, you warrant and represent:
- that Your Application and your use of the Service and the API will not intentionally infringe, violate, or misappropriate any third party’s intellectual property rights or other proprietary rights; will not intentionally include any misleading, deceptive or fraudulent information; and will not intentionally violate any laws, regulations, or government orders;
- that (i) you will not intentionally design Your Applications for the purpose of facilitating the access, storage, distribution, or other exploitation of copyrighted or proprietary content without the authorization of the content owner; and (ii) you will make best efforts (including design considerations) to prevent the use of Your Application for the purpose of facilitating the access, storage, distribution, or other exploitation of copyrighted or proprietary content without the authorization of the content owner; and (iii) if you become aware of such use, you will promptly notify DreamHost;
- that you will not design or implement Your Applications in a way that (as determined by DreamHost in its sole discretion) might mislead a user into believing (i) that the user is interacting directly with the Service when interacting with Your Applications, or (ii) that DreamHost created or endorsed Your Application;
- that you will not encourage or endorse End Users to post or upload material that infringes the copyright, proprietary, or other rights of any third parties, or content that violates these Terms or the AUP.
5. Ownership; Proprietary Rights. As between the Parties, DreamHost owns and licenses all the Service that it provides to you, including the API, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service (“DreamHost Materials”).DreamHost Materials do not include Contributed Content (as defined below). Except as DreamHost may expressly authorize in writing, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Service or the DreamHost Materials. DreamHost reserves all rights not expressly granted in these Terms. You shall not acquire any right, title, or interest to the DreamHost Materials, except for the limited rights described in these Terms. Some DreamHost Materials are licensed under a separate license, such as the GNU Lesser General Public License, version 2.1, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the applicable DreamHost Materials.
6. User Content.
(a) General. The Service enables you and any third party that accesses or uses the Service under your User Account (each, an “End User”) to store digital content, including software applications (which includes Your Application, as defined in Section 7), data, media, text, audio and video recordings, photos, graphics or other information or content (collectively, “User Content”), and to host and/or share such User Content. DreamHost does not control, censor, monitor, or assume any responsibility for User Content.
(b) Ownership; Grant of Rights. As between the Parties, you own all right, title, and interest in and to your User Content. You authorize and grant DreamHost a license to use your User Content to provide the Service to you and your End Users. DreamHost may disclose Your Content to provide the Service to you and your End Users or to comply with any request from a governmental or regulatory body (including subpoenas or court orders).
(c) Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own and your End Users’ User Content and the consequences of using such Content in connection with the Service. In connection with User Content, you affirm, represent, and/or warrant:(i) that you own, or have the necessary licenses, rights, consents, and permissions to use, and to the extent of your own rights and as may be necessary to provide the Services to you or your End User further authorize DreamHost to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content, and to grant the rights and license described in Section 6(b); and (ii) that your User Content, DreamHost’s possession of such User Content in connection with the Service, and DreamHost’s exercise of the license rights described in Section 6(b), do not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (B) violate these Terms of the AUP, and any applicable laws or regulations.
(d) No Responsibility for User Content. With the exception of the limited license granted under Section 6(b), DreamHost does not obtain or control any rights in, and does not exert editorial control over, User Content. Nothing in these Terms obligates DreamHost to verify, and DreamHost does not warrant that it has verified, the representations and warranties that End Users made regarding User Content.
(e) Neutrality Policy. As a general company policy, DreamHost does not actively monitor, survey, crawl, supervise, or censor any User Content, and will not automatically block access to User Content that may violate the above Content Restrictions upon its discovery. Unless otherwise required by law, including in response to a subpoena or warrant, DreamHost will also refuse to honor any requests to inspect, survey, or search User Content for any materials suspected to violate the above Content Restrictions.
Except as described below, if a third party complains to DreamHost about User Content, DreamHost may transmit the complaint to you and leave the resolution of the dispute regarding User Content (including End User’s User Content) to you without any further review or investigation. DreamHost will not question or overrule your resolution of the third-party complaint, even if you ultimately ignore the complaint, fail to respond to it, or fail to resolve it to the third party’s satisfaction. But if DreamHost determines in its sole discretion that it may become criminally or civilly liable if the User Content is not blocked and is allowed to remain, DreamHost (i) will immediately block access the User Content; (ii) will forward you a copy of the third-party complaint; (iii) will not reinstate, and will not allow you or an End User to reinstate access to User Content unless and until (1) the complaining third party notifies DreamHost that the dispute was resolved or (2) you post a bond in the amount sufficient to cover DreamHost’s anticipated legal expenses and potential judgment (which amount DreamHost will determine in its sole discretion); and (iv) will give you notice of the bond amount that is required to reinstate access to the User Content.
Examples of User Content that may subject DreamHost to criminal and civil penalties include: (i) any falsehoods or misrepresentations that could damage DreamHost or any third party; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity; (iii) any material that would be harmful to minors in any manner. DreamHost will not be liable to you, an End User, or any third party affiliated with you or an End User for any direct, indirect, or incidental damages that may result from DreamHost’s blocking access to User Content under these Terms and the AUP.
7. API Use. The API allows you to create certain compatibility between an application, service, or product that you may create (“Your Application”), and the Service. Subject to the terms and conditions of these Terms and during the term of these Terms, DreamHosts is granting you a limited, nonexclusive, non-sublicensable, freely revocable license to use the API solely for the purpose of creating compatibility between the Service and Your Application. DreamHost reserves all rights that it does not expressly grant to you in these Terms. DreamHost may at any time and in its sole discretion change the specifications of, or restrict or limit access to the API. You acknowledge and agree that DreamHost may use any technological means to enforce these Terms. Notwithstanding anything to the contrary, you grant DreamHost the right to crawl, test, or otherwise monitor Your Applications for the purpose of verifying your compliance with these Terms, and that you will not seek to block or otherwise interfere with such crawling or monitoring.
8. Non-Monitoring of Users and User Content. You understand and agree that you, and not DreamHost, are entirely responsible for all User Content that you and your End Users upload, transmit, or otherwise make available through the Service. DreamHost does not control User Content and does not have any obligation to monitor User Content for any purpose. If at any time DreamHost chooses, in its sole discretion, to monitor the User Content, in so doing DreamHost will assume no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, and no responsibility for the conduct of the User, any End User, or any other person or entity submitting any such User Content. You agree that you must evaluate and bear all risks associated with the use of any User Content, including any reliance on the accuracy, completeness, usefulness, or legality of such User Content.
9. Removal of User Content. If DreamHost determines in its sole discretion that User Content violates these terms or any applicable laws or regulations, DreamHost and its designees shall have the right (but not the obligation) at any time and in their sole discretion to refuse the uploading or transmission to, or to remove any User Content from the Service in whole or in part, with or without notice and with no liability of any kind to you, Users, or End Users.
10. Your Additional Obligations. You are solely responsible for your User Content, including without limitation its technical performance and operation and compatibility with the API, for maintaining appropriate security, for protection and backup of your User Content (which may include the implementation and deployment of encryption technology to protect User Content from unauthorized access above and beyond the security measures already implemented on the Service, as described on the website for the Service), for any and all claims regarding your User Content, and for the compliance of your User Content with these Terms and all applicable laws and regulations. In connection with your use of the Service, you agree that you (a) will comply with any terms and conditions a User or End User has attached to such User’s or End User’s User Content; (b) will take all reasonable steps to discourage End Users’ uploading of User Content to the Service that violates these Terms and all applicable laws and regulation; (c) will insert a prominent and clear notice prominently into Your Application that allows your End Users to understand that DreamHost does not endorse Your Application or its content; (d) will comply with all applicable local, state, national, and international laws and regulations, including, without limitation, copyright and other laws protecting proprietary rights (including the DMCA, as defined in Section 23), and all applicable export control laws and regulations and country-specific economic sanctions implemented by the United States Office of Foreign Assets Control; (e) will properly handle and process notices that any person claiming that your User Content violated such person’s rights (including notices pursuant to the DMCA) may send to you; (f) will obtain and maintain all licenses, permits, and any other necessary permissions ; (g) if Your Application involves payment or account information, will comply with all rules and regulations of any applicable payment network or association; (h) will ensure that all End Users comply with your obligations under these Terms and that the terms of your agreement with each End User are consistent with these Terms , and, if an End User fails to comply with these Terms, will immediately terminate the End User’s access to User Content and the Service; (i) as between the Parties, will be solely responsible to provide customer service to your End Users; and (h) will provide any information and/or other materials related to Your Applications that DreamHost may reasonably request from time to time to verify your and End Users’ compliance with these Terms.
11. Account Information and Password. In order to access the Service, you will have to create an account using your current valid e-mail address. You may only create one account per email address. You acknowledge, consent, and agree that DreamHost may access, preserve, and disclose your account information and User Content if required to do so by law, or if it believes in good faith that such access, preservation, or disclosure is reasonably necessary (a) to comply with legal process; (b) to enforce these Terms; (c) to respond to any claim that User Content violates any applicable laws or regulations, or the rights of third parties; (d) to provide certain customized features of the Service to you, if any; (e) to respond to your requests; or (f) to protect the rights, property, or personal safety of DreamHost, its other Users, and the public. When you register for the Service you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account or password), you shall immediately notify DreamHost. YOU ARE SOLELY LIABLE FOR ANY AND ALL LOSSES THAT YOU, DREAMHOST, OR OTHERS MAY INCUR DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT
12. Fees and Payments. The Service requires you to pay a fee, the details of which are described on the DreamHost website and are indicated on the sign-up pages for the Service during your sign-up process. You agree to pay all fees and applicable taxes that you or anyone using your account incur. We may revise the pricing for the Service at any time. Unless otherwise noted, all fees are quoted and must be paid in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees or services that DreamHost provided you, your account may be closed without warning or notice at DreamHost’s sole discretion. All amounts are to be paid without setoff or counterclaim, and without any deduction or withholding. DreamHost may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. EXCEPT AS OTHERWISE DESCRIBED IN ANY RETURN POLICY OR CANCELLATION POLICY, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
13. Third Party Content. DreamHost, Users, and other third parties may provide software applications, data, media, text, audio and video recordings, photos, graphics, or other information or content in connection with the Service (“Third Party Content”). Such Third Party Content may be subject to additional fees, terms, and conditions as determined by the relevant third parties. DreamHost has no control over such Third Party Content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of such Third Party Content. The reference to or availability of any Third Party Content in connection with the Service does not imply DreamHost’s affiliation, endorsement, or adoption of any Third Party Content. ACCESS TO AND USE OF THIRD PARTY CONTENT IS SOLELY AT YOUR OWN RISK. These Terms do not govern your use of any content (including without limitation any Third Party Content) or service other than the Service. You should review the applicable third-party terms and policies of any providers of such content or services, including Third Party Content.
14. Support Services. DreamHost provides general User support for the Service as described on the website for the Service. DreamHost may, from time to time, offer premium support packages for an additional fee, as may be described on the website for the Service.
15. Service Availability. DreamHost may change or discontinue any of the products or services available within the Service at any time and without notice. DreamHost may also change or discontinue the API for the Service, but will use commercially reasonable efforts to continue supporting the previous version of any API for a reasonable period of time not to exceed one (1) year, unless such change or discontinuation (a) is made in response to a security or intellectual-property issue, (b) is impractical for business reasons, or (c) is necessary for legal or regulatory purposes.
16. Feedback. You agree that any feedback, analysis, suggestions, and comments that you may offer to DreamHost (collectively, “Feedback”) will become the property of DreamHost. IN ADDITION TO THE FEES FOR YOUR ACCESS TO THE SERVICE, USER ASSIGNS TO DREAMHOST ALL RIGHT, TITLE, AND INTEREST, INCLUDING ALL INTELLECTUAL-PROPERTY RIGHTS, IN AND TO THE FEEDBACK. WITHOUT LIMITING THE ABOVE TERMS, YOU AGREE THAT DREAMHOST SHALL HAVE THE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, COPY, DISPLAY, PERFORM, TRANSLATE, MODIFY, LICENSE, SUBLICENSE, AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY OF ITS DERIVATIVES IN ANY EMBODIMENT, MANNER ,OR MEDIA, WHETHER KNOWN OR DEVISED AT A LATER TIME, WITHOUT ANY REMUNERATION, COMPENSATION, OR CREDIT TO YOU. You represent and warrant that you have the right to make the foregoing assignment and to grant to DreamHost the rights granted under this Section 16, and that any Feedback that you may provide to DreamHost does not infringe any third-party intellectual-property rights. Notwithstanding the foregoing assignment, DreamHost grants to you a non-exclusive, non-transferable, non-sublicensable, world-wide, perpetual, and irrevocable license to use the Feedback for your own personal, non-commercial purposes that do not compete, directly or indirectly, with DreamHost’s use of such Feedback.
17. Temporary Suspension of Service. In lieu of terminating your access to the Service pursuant to Section 18, and after a notice to you, DreamHost may elect to suspend your or any End User’s right to access or use any portion or all of the Service immediately for non-payment of fees; if DreamHost determines that you have violated these Terms; or if DreamHost has any cause to believe that your or End User’s activity in connection with the use of the Service may adversely impact the Service or DreamHost’s systems, or may subject DreamHost, its affiliates, or any third party to liability, including if DreamHost determines that your or an End User’s use of the Service poses a security risk, or may be fraudulent, infringing, or unlawful. If DreamHost suspends your or End User’s access to the Service, DreamHost will retain your User Content and restore your access if and when your suspension is lifted, provided that you remain responsible for all fees accrued through the date of suspension, as well as any on-going fees for such retained User Content. If your suspension is not lifted and your access to the Service is finally terminated, the provisions of Section 18 will apply.
18. Termination. You may terminate your access to the Service for any reason by providing us notice and closing your account. DreamHost may terminate your access to the Service (a) for any reason by providing after giving you thirty (30) days prior written notice; (b) for curable breach of these Terms after giving you fifteen (15) days prior written notice to you, unless you cure such curable breach during the fifteen (15) day period; or (c) immediately after giving you a written notice if you cease to operate your business, make an assignment for the benefit of creditors, or become the subject of any bankruptcy, liquidation, dissolution, or similar proceeding. DreamHost may also terminate your access to the Service immediately upon notice to you (a) for any reason described in Section 17, whether or not DreamHost elects to suspend your access to the Service first, which DreamHost may do at its sole discretion; (b) if DreamHost elects to discontinue offering the Service for business reasons; or (c) if DreamHost determines that such termination is necessary or desirable to maintain its compliance with all applicable laws and regulations and to avoid violation of third party rights. If DreamHosts terminates your access to the Service, then during thirty (30) days following termination DreamHost will not erase any of your User Content, which may retrieve through DreamHost’s post-termination data-retrieval services that DreamHost generally makes available (as described on the website for the Service), and then only after you have paid all outstanding fees and charges due on your account.
19. INDEMNIFICATION; HOLD HARMLESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS DREAMHOST, ITS PARENT, SUBSIDIARIES, AFFILIATES, OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE SERVICE; (II) YOUR AND YOUR END USERS’ USER CONTENT, INCLUDING DREAMHOST’S STORAGE, POSSESSION, DISPLAY, OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED BY THESE TERMS WITH RESPECT TO USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD-PARTY INTELLECTUAL-PROPERTY RIGHTS; (V) YOUR BREACH OF THE REPRESENTATIONS, WARRANTIES, AND COVENANTS DESCRIBED IN THESE TERMS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY DREAMHOST. DREAMHOST RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US, AND YOU AGREE TO COOPERATE WITH DREAMHOST’S DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF DREAMHOST. DREAMHOST WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
20. DISCLAIMERS; NO WARRANTIES.
(a) ACKNOWLEDGMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THESE TERMS, THE TERM “DREAMHOST” INCLUDES DREAMHOST’S PARENT, SUBSIDIARY, AFFILIATED AND OTHER RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS, AND SUBCONTRACTORS.
(b) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, DREAMHOST DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DREAMHOST OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
(c) “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, USER CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS, AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
(d) SERVICE OPERATION. DREAMHOST DOES NOT WARRANT THAT THE SERVICE, ACCESS TO USER CONTENT, OR TO ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THE INTERRUPTIONS, ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS WILL BE CORRECTED.
(e) ACCURACY. DREAMHOST DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(f) HARM TO YOUR COMPUTER. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
21. LIMITATION OF LIABILITY AND DAMAGES.
(a) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE AND BREACH OF CONTRACT, SHALL DREAMHOST OR ITS THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, OR USE, OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, THE SERVICE OR USER CONTENT, OR ANY OTHER INTERACTIONS WITH DREAMHOST, EVEN IF DREAMHOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) LIMITATION OF DAMAGES. IN NO EVENT SHALL DREAMHOST’S OR ITS THIRD-PARTY PARTNERS’, LICENSORS’ OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF FIVE HUNDRED DOLLARS (USD $500) OR ONE-HALF OF THE ANNUAL FEES PAID BY YOU IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE.
(c) THIRD PARTY PRODUCTS AND SERVICES. YOU OR END USERS MAY USE THE SERVICE IN CONNECTION WITH MARKETING YOUR OR END USERS’ OWN PRODUCTS AND/OR SERVICES. THE ABOVE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SUCH PRODUCTS OR SERVICES MARKETED, SOLD, OR PROVIDED BY YOU OR END USERS, OR OTHERWISE BY THIRD PARTIES OTHER THAN DREAMHOST, AND RECEIVED BY YOU THROUGH THE SERVICE.
22. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN.
(a) LIMITATIONS BY APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
(b) BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT DREAMHOST HAS OFFERED THE SERVICE AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY DESCRIBED IN THESE TERMS, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY DESCRIBED IN THESE TERMS REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DREAMHOST, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY DESCRIBED IN THESE TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND DREAMHOST. YOU ACKNOWLEDGE AND AGREE THAT DREAMHOST WOULD NOT BE ABLE TO PROVIDE THE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
23. Digital Millennium Copyright Act Compliance.
(a) Infringement Claims. If you are a copyright owner or an agent of a copyright owner, and believe that any User Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing: (see 17 U.S.C 512(c)(3) for further detail).
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Service and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Service;
(iv) Information reasonably sufficient to permit DreamHost to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
DreamHost’s designated Copyright Agent to receive notifications of claimed infringement is:
Attn: Karl Fry
707 Wilshire Blvd. Suite 5050
Los Angeles, CA 90017
(b) Notice and Takedown. If DreamHosts receives proper notification of claimed copyright infringement, it will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. DreamHost will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below.
DreamHost may, at its discretion, deny access to the Service by, or disable and/or terminate the accounts of, Users who may be infringers.
(c) Copyright Counter-Notices. If content you posted on the Service was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
To file a counter-notification with us, you must contact DreamHost’s Copyright Agent, at the above address, in writing, which must include all the information described in subsection (d), below..
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that DreamHost enforces a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
(d) Elements of Counter-Notification. To expedite DreamHost’s ability to process your counter- notification, please use the following format (including section numbers):
1. Identify the specific information sufficient to allow DreamHost to identify material that DreamHost has removed or to which DreamHost has disabled access. 2. Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your DreamHost account. 3. Provide a statement that you consent to the jurisdiction of the Central District of California, and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above, or an agent of such person. 4. Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.” 5. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
CT Corporation System
818 West 7th Street, Suite 200
Los Angeles, CA 90017
After DreamHost receives your counter-notification, it will forward it to the party who submitted the original claim of copyright infringement. Please note that when DreamHost forwards the counter-notification, it includes any of your identifying information that you provided in the counter-notification. By submitting a counter-notification, you consent to having such identifying information revealed in this way. DreamHost will not forward the counter-notification to any party other than the original claimant.
After DreamHost sends out the counter-notification, the claimant must then notify DreamHost within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity on the Service. If DreamHost receives such notification, DreamHost will be unable to restore the items. If DreamHost does not receive such notification, DreamHost may, but is not obligated to, reinstate the disputed item(s).
(e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad-faith allegation by using this process. Please also be advised that DreamHost enforces a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Service is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, DreamHost strongly recommends that you first contact a lawyer knowledgeable in the laws of the United States and the State of California. If you do wish to file a counter-notice, you should follow the process describe above under the heading “Elements of Counter-Notification.”
(f) Disclaimer: DREAMHOSST IS NOT YOUR ATTORNEY, AND THE INFORMATION DREAMHOST PRESENTED IN THESE TERMS IS NOT LEGAL ADVICE. DREAMHOST PRESENTED THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY. YOU MUST CONTACT A LICENSED ATTORNEY FOR LEGAL ADVICE OR MORE INFORMATION.
(a) Notice. DreamHost may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the website for the Service. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address that you provided with your account information, and it is your responsibility to update such account information when you change it. Notice to you will be deemed given twenty-four hours after an email is sent, unless DreamHost is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide DreamHost with notices only by mail to the following address:
CT Corporation System
818 West 7th Street, Suite 200
Los Angeles, CA 90017
(b) Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or the Service shall be filed only in the state or federal courts in and for the County of Los Angeles, State of California,that you further consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action. You further agree to accept any service of process (such as a summons and a complaint) by certified mail with return-receipt requested, mailed to the last mailing address that you provided to DreamHost. Service will be deemed complete ten (10) days after mailing. It is your responsibility to update your address.
(d) CLAIMS. WITHOUT REGARD TO ANY STATUTES OF LIMITATIONS OR LEGAL LIMITATIONS PERIODS THAT MAY OTHERWISE APPLY, YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY BRING ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(e) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
(f) Assignment. You may not transfer or assign any of the Terms, , rights, and licenses granted by these Terms , but DreamHost may assign the Terms, rights, and licensed granted by these Terms without any restriction. Any assignment attempted to be made in violation of these Terms shall be void.
(g) No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and DreamHost as a result of these Terms or use of the Service. You further acknowledge that by providing User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and DreamHost other than as described in these Terms. There are no intended or unintended third-party beneficiaries to this agreement, including (without limitation) End Users.
(h) Force Majeure. DreamHost shall not be liable to you or to End Users for any non-performance with respect to the delivery of the Service or otherwise that is caused by floods, strikes or other labor disturbances, riots, fires, accidents, wars, embargoes, delays of carriers, inability to obtain materials, failure of power or of natural sources of supply, acts, injunctions, or restraints of government (whether or not now threatened), or any cause preventing such performance, whether similar or dissimilar those described above, that are beyond DreamHost’s reasonable control.
(i) U.S. Government Rights. If the Service is provided to the U.S. Government, it is being provided as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and/or “technical data,” with the same rights and restrictions generally applicable to the Service. If you are using the Service on behalf of the U.S. Government, and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Service. The terms “commercial item,” “commercial computer software,” “commercial computer software documentation,” and “technical data” as used in these Terms have the respective meanings as defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
(j) Entire Agreement. These Terms constitute the entire agreement between you and DreamHost relating to the subject matter of these Terms and Services, and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to this subject matter, excluding any separate written agreements relating to the Service that you may have entered into with DreamHost. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms that DreamHost may make as described in Section 3, above.
(k) Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of DreamHost to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision, which may be enforced with full force and effect on any subsequent occasion
(l) Headings. The heading references included in these Terms are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect these Terms or its provisions.