| |
Legal Notice
1. Acceptance of Terms
The following are terms of a legal agreement between Switch and Data and you (the “Terms”) regarding the use of Switch and Data’s web site (the “Site”). By accessing, browsing and/or using this web site, you acknowledge that you have read, understood, and agree, to be bound by these terms and to comply with all applicable laws and regulations, including export and re-export control laws and regulations. If you do not agree to these terms, do not use this Web site.
This web site may contain other proprietary notices and copyright information, the terms of which must be observed and followed. Information on this Web site may contain technical inaccuracies or typographical errors.
Information may be changed or updated without notice. Switch and Data may also make improvements and/or changes in the products and/or the programs described in this information at any time without notice.
Switch and Data may update these Terms from time to time. Each time you use the Web site you will be operating under the Terms as they exist as of the time of use. Please check these terms prior to each use of our Web site .
The Terms are entered into by and between Switch and Data and you. If you currently have in effect a separate written purchase or license agreement with Switch and Data for a service, that agreement shall govern the use of that service to the extent in conflicts with these Terms.
Switch and Data does not want to receive confidential or proprietary information from you through our web site. Please note that any information or material sent to Switch and Data will be deemed not to be confidential. By sending Switch and Data any information or material, you grant Switch and Data an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute those materials or information, and you also agree that Switch and Data is free to use any ideas, concepts, know-how or techniques that you send us for any purpose. However, we will not release your name or otherwise publicize the fact that you submitted materials or other information to us unless: (a) we obtain your permission to use your name; or (b) we first notify you that the materials or other information you submit to a particular part of this site will be published or otherwise used with your name on it; or (c) we are required to do so by law. See Switch and Data’s Privacy Policy for more information.
2. Disclaimer
Although Switch and Data has attempted to provide accurate information on the Web Site, Switch and Data assumes no responsibility for the accuracy of the information. Switch and Data may change the programs or products mentioned at any time without notice. Mention of non- Switch and Data products or services is for information purposes only and constitutes neither an endorsement nor a recommendation.
THE MATERIALS ARE PROVIDED "AS IS" WITHOUT AN EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
IN NO EVENT SHALL SWITCH AND DATA OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE MATERIALS, EVEN IF SWITCH AND DATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18USC 2701-2711): COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEB-SITE LINKED TO THE WEBSITE.
Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company’s equipment, transmitted over networks accessed by the Site, or otherwise connected with Subscriber’s use of the Services.
3. Intellectual Property Rights
All content, including text, data, sound recordings, sound, photographs, graphics, video, or other materials ("Material") provided on this Web site is provided by or to Switch and Data by its respective manufacturers, authors, developers and vendors (the "Third Party Providers") and is the copyrighted work of Switch and Data and/or the Third Party Providers.
Except as expressly authorized by Switch and Data or the Third Party Provider, none of the Material may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise. No part of the Web site, including logos, graphics, sounds or images, may be reproduced or retransmitted in any way, or by any means, without the prior express written permission of Switch and Data. You also may not, without Switch and Data’s prior express written permission, copy any Materials contained on this Web site on any other server, or use any Switch and Data Marks for any purpose.
"Switch and Data Marks" refers to any names, marks, brands, logos, designs, slogans, trademarks, services marks and other designations Switch and Data uses in connection with its products or services. Individuals who believe that their intellectual property rights have been infringed on the Web site, may contact Switch and Data and request that the infringing material be removed or access to it blocked. Switch and Data will investigate those complaints. Where Switch and Data is satisfied that the infringement is taking place, it will take appropriate action. If you believe your intellectual property rights are being infringed, please direct your claims to: General Counsel, Switch and Data Management Company LLC, 1715 N. Westshore Blvd., Suite 650, Tampa, FL 33607.
4. Trademarks
The trademarks, logos and service marks ("Marks") displayed on this Web Site are the property of Switch and Data or other third parties. Users are not permitted to use these Marks without the prior written consent of Switch and Data or such third party that may own the Mark.
"PAIX" and “METROPAIX” are registered servicemarks of Switch and Data Operating Company LLC
"SingleCNXT" is a registered servicemark of Switch & Data Facilities Company LLC
“Switch and Data” is a registered service mark of Switch & Data Holdings, Inc.
“TechSmart” is a registered servicemark of Switch and Data Operating Company LLC.
5. Links to Third Party Sites
This Web Site may contain links to third party sites. Access to any other Internet site linked to this Web Site is at the user's own risk and Switch and Data is not responsible for the accuracy or reliability of any information, data, opinions, advice or statements made on these sites. Switch and Data provides these links merely as a convenience and the inclusion of such links does not imply an endorsement.
6. Access to Password-Protected and/or Secure Areas
Access to and use of password protected and/or secure areas of the Web Site is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Web Site may be subject to prosecution. 7. Privacy PolicySwitch and Data respects your desire for privacy. Switch and Data’s Privacy Policy can be found at http://www.SwitchandData.com/subpages/Privacy.asp. By using the Web site, you are consenting to the processing of your data by Switch and Data and consenting to the terms of our Privacy Policy. Access to Password Protected and/or Secure Areas is subject to consent to Switch and Data’s Electronic Commerce User Agreement and License.
Use of the Web site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or "spam" on the Site, or any processes that run or are activated while the Subscriber is not logged in.
Web Marketplace Disclaimer and Terms of Use
1. Your Acceptance
A. By using and/or visiting this portion of Switch and Data’s website, hereafter referred to as the “Web Marketplace” or “Website,” you signify your agreement to (1) these terms and conditions (the "Terms of Use"), (2) Switch and Data’s privacy policy, incorporated here by reference, and (3) Switch and Data’s Legal Notice, incorporated here by reference. If you do not agree to any of these terms, the Switch and Data privacy policy, or Switch and Data’s Legal Notice, do not use the Web Marketplace. B. Although we may attempt to notify you when major changes are made to these Terms of Use, you should periodically review the most up-to-date version. Switch and Data may, in its sole discretion, modify or revise these Terms of Use and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
2. Switch and Data Web Marketplace
A. These Terms of Use apply to all users of the Switch and Data Web Marketplace, including users who are also contributors of video content, information, and other materials or services on the Web Marketplace. B. The Web Marketplace may contain links to third party websites that are not owned or controlled by Switch and Data. Switch and Data has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Switch and Data will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly release Switch and Data from any and all liability arising from your use of any third-party website. C. Accordingly, we encourage you to be aware when you leave the Switch and Data Website and to read the terms and conditions and privacy policy of each other website that you visit. D. The Web Site and the Marketplace may be temporarily unavailable from time to time for maintenance or other reasons. Switch and Data assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. Switch and Data is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Web Site or combination thereof, including injury or damage to User's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Marketplace. Under no circumstances will Switch and Data be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone's use of the Web Site or the Marketplace, any User Content or Third Party Applications, Software or Content posted on or through the Web Site or the Marketplace or transmitted to Users, or any interactions between users of the Web Site, whether online or offline.
3. General Use of the Website -- Permissions and Restrictions
Switch and Data hereby grants you permission to access and use the Web Marketplace as set forth in these Terms of Use, provided that: A. You agree not to modify, copy, distribute in any medium, frame, reproduce, republish, download, display, post, transmit or sell in any from or by any means any part of the Website, including but not limited to User Submissions (defined below) except for your own Content or Submissions, without Switch and Data's prior written authorization. B. You agree not to alter or modify any part of the Web Marketplace except for your pages, including but not limited to Switch and Data's web tools or any of its related technologies. C. You agree not to access User Submissions (defined below) or Switch and Data Content through any technology or means other than the web tools on the pages of the Website itself, or other explicitly authorized means Switch and Data may designate. D. You agree not to use the Website for any commercial use other than the presentation and promotion of your product and services to other participants of the Website, without the prior written authorization of Switch and Data. Prohibited commercial uses include any of the following actions taken without Switch and Data's express approval: sale of access to the Website or its related services on another website; use of the Website or its related services, for the primary purpose of gaining advertising or subscription revenue; the sale of advertising, on the Switch and Data website or any third-party website, targeted to the content of specific User Submissions or Switch and Data content; harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications; impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity; upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; upload, post, transmit, share, store or otherwise make publicly available on the Site any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; intimidate or harass another; upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; use or attempt to use another's account, service or system without authorization from the Company, or create a false identity on the Service or the Site. and any use of the Website or its related services that Switch and Data finds, in its sole discretion, to use Switch and Data's resources or User Submissions with the effect of competing with or displacing the market for Switch and Data, Switch and Data content, or its User Submissions. E. Prohibited commercial uses do not include: uploading your Content to the Switch and Data Web Marketplace Website to promote your business; any use that Switch and Data expressly authorizes in writing. G. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Web Marketplace in a manner that sends more request messages to the Switch and Data servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Switch and Data reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website (e.g. comments, email) for any commercial solicitation purposes. H. You will otherwise comply with the terms and conditions of these Terms of Use, Switch and Data privacy policy, Switch and Data’s Legal Notice, and all applicable local, national, and international laws and regulations. I. Switch and Data reserves the right to discontinue any aspect of the Web Marketplace at any time.
4. Your Use of Content on the Site
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of content on the Web Marketplace. A. The content on the Web Marketplace, except all User Submissions (as defined below), including without limitation, the designs, text, software, scripts, graphics, photos, sounds, music, videos, interactive features, their selection and arrangement and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by the User or licensed to Switch and Data, subject to copyright and other intellectual property rights under the law. Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Switch and Data reserves all rights not expressly granted in and to the Web Marketplace Website and the Content. B. You may access User Submissions solely: for your information and personal use; and as intended through the normal functionality of the Web Marketplace. C. You may access Switch and Data Web Marketplace Content, User Submissions and other content only as permitted under this Agreement. Switch and Data reserves all rights not expressly granted in and to the Switch and Data Web Marketplace Website. E. You agree to not engage in the use, copying, or distribution of any of the Content (except your own) other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Website for any commercial purposes. F. You agree not to circumvent, disable or otherwise interfere with security-related features of the Switch and Data Web Marketplace Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Switch and Data Web Marketplace Website or the Content therein. G. You understand that when using the Switch and Data Web Marketplace Website, you will be exposed to User Submissions from a variety of sources, and that Switch and Data is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Switch and Data with respect thereto, and agree to indemnify and hold Switch and Data, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
5. Your User Submissions and Conduct
A. As a Switch and Data Web Marketplace Website participant you may submit photographs, diagrams and textual content, including your logo or trademarks ("User Content" or “User Submissions.") B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize Switch and Data to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Switch and Data Web Marketplace Website and these Terms of Use. C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Switch and Data, you hereby grant Switch and Data a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Switch and Data Web Marketplace Website and Switch and Data's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Switch and Data Web Marketplace Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Switch and Data Web Marketplace Website a non-exclusive license to access your User Submissions through the Website, and to use such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The above licenses granted by you in User Content are perpetual and irrevocable. You may remove your User Content and Submissions from the Web Site at any time. If you choose to remove your User Content and Submissions, the license granted above will automatically expire, however you acknowledge that Switch and Data may retain archived copies of your User Content and Submissions. D. In connection with User Submissions, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Switch and Data all of the license rights granted herein. F. Switch and Data does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Switch and Data expressly disclaims any and all liability in connection with User Submissions. Switch and Data does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Switch and Data will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. Switch and Data reserves the right to remove Content and User Submissions without prior notice.
6. Marketplace
Parties to a transaction are solely responsible for all interactions with each other, for arranging for payment and the exchange of the goods or services purchased if applicable, and for the results and performance of any transaction or relationship entered into through the Switch and Data Marketplace. You acknowledge that Switch and Data is not responsible or liable for any action or inaction of any party to a transaction, for any failure to perform, to pay any amounts due, or to deliver any merchandise or services as promised, or for any other aspect of the transaction. ALL USE OF THE SWITCH AND DATA MARKETPLACE IS PROVIDED "AS IS" AND AT YOUR OWN RISK
7. Termination Policy
A. Switch and Data will terminate a User's access to the Switch and Data Web Marketplace Website if, under appropriate circumstances, they are determined to be in violation of these Terms of Use. B. Switch and Data reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Use, including, but not limited to, violations like copyright infringement and violations of intellectual property law, as well as, pornography, obscene or defamatory material, or excessive length. Switch and Data may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Use at any time, without prior notice and at its sole discretion. Notwithstanding these rights, Switch and Data does not undertake an affirmative obligation to monitor any or all Content or User Submissions.
8. Digital Millenium Copyright Act
A. If you are a copyright owner or an agent thereof and believe that any User Submission or other 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): A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; A statement that you have 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 A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Switch and Data’s designated Copyright Agent to receive notifications of claimed infringement is: Clayton Mynard, General Counsel, 1715 N. Westshore Blvd., Suite 650, Tampa, Florida 33607, email: legal@switchanddata.com, fax: 813-207-7803. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Switch and Data customer service through (888) 223-7800. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid. B. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent: Your physical or electronic signature; Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Tampa, Florida, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, Switch and Data may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Switch and Data's sole discretion.
9. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SWITCH AND DATA WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, SWITCH AND DATA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. SWITCH AND DATA MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SWITCH AND DATA WEBSITE. SWITCH AND DATA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SWITCH AND DATA WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SWITCH AND DATA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
10. Limitation of Liability
IN NO EVENT SHALL SWITCH AND DATA, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SWITCH AND DATA WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT SWITCH AND DATA SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SWITCH AND DATA’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SWITCH AND DATA FOR PARTICIPATION IN THE MARKETPLACE WEB SITE, BUT IN NO CASE WILL SWITCH AND DATA'S LIABILITY TO YOU EXCEED $1000. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO SWITCH AND DATA FOR PARTICIPATION IN THE MARKETPLACE WEB SITE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM SWITCH AND DATA, REGARDLESS OF THE CAUSE OF ACTION. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. The Website is controlled and offered by Switch and Data from its facilities in the United States of America. Switch and Data makes no representations that the Switch and Data Website is appropriate or available for use in other locations. Those who access or use the Switch and Data Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
11. Indemnity
You agree to defend, indemnify and hold harmless Switch and Data, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Switch and Data Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your use of the Switch and Data Website.
12. Ability to Accept Terms of Service
You affirm that you have full power and authority to enter into and perform this Agreement, and that you have been properly authorized and empowered to enter into this Agreement on behalf of the entity on whose behalf you are working and any of its Affiliates.
13. Assignment
These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Switch and Data without restriction.
14. General
You agree that: (i) the Switch and Data Website shall be deemed solely based in Florida; and (ii) the Switch and Data Website shall be deemed a passive website that does not give rise to personal jurisdiction over Switch and Data, either specific or general, in jurisdictions other than Florida. These Terms of Use shall be governed by the internal substantive laws of the State of Florida, without respect to its conflict of laws principles. Any claim or dispute between you and Switch and Data that arises in whole or in part from the Switch and Data Website shall be decided exclusively by a court of competent jurisdiction located in Hillsborough County, Florida. These Terms of Use, together with the Privacy Policy and other legal notices published by Switch and Data on the Website, shall constitute the entire agreement between you and Switch and Data concerning the Switch and Data Web Marketplace Website. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of this these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Switch and Data’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. Switch and Data reserves the right to amend these Terms of Use at any time and without notice, and it is your responsibility to review these Terms of Use for any changes. Your use of the Switch and Data Website following any amendment of these Terms of Use will signify your assent to and acceptance of its revised terms. YOU AND SWITCH AND DATA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SWITCH AND DATA WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
|
