Contratto e termini di uso per www.FoolDNS.com e dei servizi forniti dal marchio THE FoolDNS®
please read carefully – this is a binding contract
Last updated 08/27/2009
This terms of service agreement (the “agreement”) is a binding agreement between The Fool S.r.l. with legal address in Milano, Corso di Porta Ticinese 87, 20123 Milano, in behalf of CEO Matteo Flora, FLRMTG78E10L400R (“FoolDNS”) and you. if you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the legal entity to this agreement, in which case “you” shall mean such entity. if you do not have such authority, or if you do not agree with the terms and conditions of this agreement, you must select the “decline” button and/or not use or cease using the services.
Section 1: Acceptance by You
- Use of the Services. In order to use the FoolDNS.com Website and Services, You must first agree to the terms of this Agreement. You may not use the FoolDNS.com Website or the Services if you do not accept the terms of this Agreement and the applicable Additional Policies. You can accept the terms of this Agreement and the Additional Policies by: (i) clicking to accept or agree to this Agreement, where this option is made available to you by FoolDNS in the user interface for any Service; or (ii) actually using the Services. In the case of the later, You understand and agree that FoolDNS will treat your use of the Services as acceptance of this Agreement and all applicable Additional Policies from this time forward.
- Use Prohibited. You may not use the Services and may not accept the Terms if: (i) You are not old enough age to form a legal, binding contract with FoolDNS or (ii) You are a person barred from receiving the Services under the laws of the United States or any other country including the country in which You are resident or from which You use the Services.
- Copy of Agreement. Before You accept the terms of this Agreement, You should print off or save a copy of this Agreement and any relevant Additional Policies for your records.
Section 2: Access to Your Account
- Email Is Primary Authentication Tool. You acknowledge and agree that the sole means by which FoolDNS will authenticate Your right to control Your account with FoolDNS is via the email address You keep on file with FoolDNS You should appropriately protect safeguard any and all security credentials provided by You to FoolDNS or provided by FoolDNS to You. All actions taken using Your email address and/or password shall be deemed to be actions taken by You. Additionally, You agree to immediately notify FoolDNS of any unauthorized use of Your account or any other breach of security of which You become aware.
- Contact Email Address Must Be Kept Up To Date. You agree to immediately notify FoolDNS of any change in Your email address.
Section 3: Free and Paid Services
- The Services. The services covered by this Agreement include both services that FoolDNS makes available free of charge (the “Free Services”) and services that FoolDNS makes available for a fee (the “Paid Services” or “Business Services”). The Free Services and the Paid Services are referred to collectively in this Agreement as the “Services” and each Free Service and Paid Service is referred to individually as a “Service.”
- Free Services. The Free Services include the FoolDNS DNS service and all other services that FoolDNS makes available to You free of charge on the FoolDNS branded websites accessible from www.FoolDNS.com (collectively, the “FoolDNS.com Website”).
- Paid Services. The Paid Services include all web services and any related support services that FoolDNS makes available to You for a fee on the FoolDNS.com Website. The Paid Services include, but are not limited to: Blocking/Filtering Service, Malware Locking Service, Premier Support Incident, and phone customer support.
- Change of Service Status. FoolDNS reserves the right at any time and at its sole discretion to reclassify a Paid Service as a Free Service or a Free Service as a Paid Service. Upon such reclassification of a Paid Service as a Free Service no refunds will be issued to You. Upon reclassification of a Free Service as a Paid Service, You must pay the associated fee to use the reclassified service.
- Modifications to Services. FoolDNS reserves the right to modify Free or Paid Services with or without notice to the You. FoolDNS.com shall not be liable to You or any third party should FoolDNS.com exercise its right to modify or discontinue the Service.
Section 4: Modifications to this Agreement
- Modifications. You agree that FoolDNS may modify this Agreement and the Additional Policies, at any time by posting a revised version of the document at issue on the FoolDNS.com Website.
- Revisions Effective upon Posting. All revisions to this Agreement and the Additional Policies shall be effective immediately upon posting of such revisions to the FoolDNS.com Website and/or FoolDNS Blog Site (http://blog.FoolDNS.com). It is Your responsibility to check the FoolDNS.com Website pages regularly for changes to this Agreement or the Additional Policies, as applicable. For Your convenience, a “last modified on” date will be set fourth near the top of this Agreement, and if possible, all Additional Policies.
- Acceptance: Continued Use Constitutes Acceptance of Revised Terms. By continuing to use or receive the Services after the effective date of any revisions to this Agreement or the Additional Policies, You agree to be bound by the revised Agreement and Additional Policies.
Section 5: Term, Suspension and Termination
- Term. The term of this Agreement (the “Term”) will commence when You agree to the terms and conditions of this Agreement, or any revisions hereto, by taking the actions referenced in Section 1. This Agreement will remain in effect until terminated by You or FoolDNS in accordance with this Section 5.
- Suspension of Services. FoolDNS may suspend Your access to the Services, in whole or in part, for any reason and at any time without notice to You. During any such suspension of the Services: (i) in the case of Paid Services, fees shall continue to accrue for any Paid Services that are still in use by You (including Paid Support); (ii) You shall remain liable for all fees, charges and any other obligations You have incurred through the date of suspension with respect to the Services; and (iii) all of Your rights with respect to the applicable Services shall be terminated during the period of the suspension.
- Termination of Particular Services. If You fail to (a) take any action that You are required by FoolDNS policy to take in relation to any Free Service or (b) make any payment, when due, for any Paid Service that you have elected to purchase, FoolDNS shall immediately and without notice have the right to terminate Your ability to use the Free or Paid Service at issue.
- Termination of Agreement. Except as may be provided for in Section 7, either You or FoolDNS may terminate this Agreement with or without cause or prior notice at any time. In the case of termination by You, this Agreement shall terminate upon Your completion of account closure process. Except as may be provided for in Section 7, FoolDNS may terminate this Agreement with or without cause or prior notice at any time. In case of termination by FoolDNS this Agreement shall terminate when FoolDNS sends notice to You of such termination. Upon termination of this Agreement in accordance with this section 5.3., You shall remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to any Paid Services and all of Your rights under this Agreement shall immediately terminate.
- 4. Data Preservation.
- Suspension. In the event of a suspension by FoolDNS of Your access to any Service for any reason, during the period of suspension: (i) FoolDNS will not take any action to intentionally erase any of Your data stored on the Services and (ii) any and all service fees will continue to accrue.
- Termination of Particular Service or Agreement. In the event of Termination of a particular Service or of this Agreement under Section 5.3., FoolDNS shall have no obligation to continue to store any information or data that You provide or provided to FoolDNS or to permit You to retrieve the same.
- Post-Termination Assistance. Following the Suspension or Termination of any Service or of this Agreement, FoolDNS may make available, on a paid or an unpaid basis, services that ease Your transition to another service provider. Your right to take advantage of any such services shall be conditioned upon Your acceptance of and compliance with the terms, conditions, and fees associated with the provision of such services by FoolDNS
Section 6: Authorization and License to Use the Services
- Authorization and License.. Subject to Your acceptance of and compliance with this Agreement and all applicable Additional Policies and with the payment requirements for the Services that are set forth on the applicable Service detail and/or Service order page on the FoolDNS.com Website (as such payment terms may be updated from time to time), FoolDNS hereby grants You a limited, non-exclusive, non-transferable, non-sublicenseable right and license, subject to FoolDNS’s intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement and the Additional Policies.
- Acceptable Use. You shall use the Services in accordance with the Terms of Service, which is available at FoolDNS Website, and which may be updated from time to time at FoolDNS’s sole discretion.
- Cooperation. You understand and agree that if You fail to promptly cooperate with FoolDNS in its attempt to investigate and resolve any allegation that You are using the Services in violation of the Terms of Service, FoolDNS may immediately suspend Your ability to use the Services.
- DNS SLA and Premier Support Incident. Subject to the terms of this Agreement, the Additional Policies, the DNS Service Level Agreement (“DNS SLA”), available at FoolDNS Website, FoolDNS will provide You with the DNS Service Level Agreement. Paid Support is made available for Your use in connection with the Services and not for Your use of third party goods, products or services. If You are experiencing problems with Your Services in connection with Your use of a program, product or service that was provided to You by a third party (someone other than Yourself or FoolDNS) then Paid Support is not available. In providing Paid Support, FoolDNS will use commercially reasonable efforts to: (i) meet all the time period deadlines outlined in the DNS SLA and Guidelines and (ii) work towards the identification and resolution of the problems submitted. FoolDNS does not represent, warrant or guarantee that (a) FoolDNS will always be able to resolve a Premier Support Incident fully, (b) You will no longer experience a problem after receiving assistance from FoolDNS or © FoolDNS will provide a “fix,” “patch” or other workaround in connection with any issue or problem You raise with FoolDNS
Section 8: License to Use the FoolDNS Properties
- Limited License. FoolDNS may make available to You, for Your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation . Subject to Your acceptance of this Agreement, Your ongoing compliance with its terms and conditions of this Agreement and any applicable Additional Policies, and Your payment of all applicable fees and changes, FoolDNS hereby grants to You, a limited, non-exclusive, non-sublicencesable, non-transferable license during the Term, subject to FoolDNS’s intellectual property and/or proprietary rights in and to the FoolDNS Properties, to install, copy and use the FoolDNS Properties solely in connection with and as necessary for Your use of the Services and solely to the extent You remain in compliance with all the terms and conditions of this Agreement and all applicable Additional Policies.
- The FoolDNS Properties. The FoolDNS Properties, include, but are not limited to, any of the following: articles and documentation for use in connection with the use of the Services; specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and/or other of the the FoolDNS Properties (by themselves or in connection with the other, or other technology); textual and other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video available on the FoolDNS.com Website; and sample computer programming code which FoolDNS may make available from time to time for use in connection with the Services (“Sample Code”). Your use of the Sample Code may be subject to additional terms and conditions as set form in additional licenses, which, if applicable, will be made available on FoolDNS.com Website and, if made so available, shall take precedence and priority over this license.
- Modifications and Reverse Engineering. Except as may be expressly authorized under this Agreement, You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the FoolDNS Properties. You may not, and may not attempt to, reverse engineer, disassemble, or decompile the FoolDNS Properties or the Services or apply any other process or procedure to derive the source code of any software included in the FoolDNS Properties.
- Restrictions on Use of Marks. Your use of any trademarks, service marks, service or trade names, logos, and other designations of FoolDNS or its affiliates (“Marks”), shall strictly comply with this Section 8.4 and the Trademark and Content Use Policies. You agree to discontinue use of any Mark(s) immediately upon request by FoolDNS You agree not to use “FoolDNS” any other trademark of FoolDNS or its affiliates, or variations or misspellings thereof, in the name of a program or in a URL address to the left of any top-level domain name (e.g., “.com”, “.net”, “.org”, etc.).
- Nonexclusive Rights. The rights granted by FoolDNS in this Agreement with respect to the Services, FoolDNS Properties, are nonexclusive, and, as such, FoolDNS reserves the right to: (i) develop products or services related to any service(s) or product(s) that You may develop in connection with Your use of the Services and/or the FoolDNS Properties and/or (ii) appoint a third party to develop products or services that compete with any such service(s) or product(s) developed by You.
Section 9: As Is and As Available Services; Downtime and Service Suspensions
- As Is and As Available. The Services are provided on a “as is” and “as available” basis. For the purposes of this Agreement this means that FoolDNS shall make only what it deems to be commercial reasonable efforts to provide You with the Services in a fashion that meet FoolDNS’s written claims regarding the availability and/or reliability of the Services. However, You understand and agree that any failure on the part of FoolDNS to provide You with the Services in a way that meets any written claim of FoolDNS regarding the availability and/or reliability of the Services shall not give rise to any liability on the part of FoolDNS
- Downtime and Service Suspensions. In addition to FoolDNS’s right to terminate or suspend Services to You as described in Section 5 above, You acknowledge that: (i) Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions and at any time; and (ii) FoolDNS shall be entitled, without any liability to You, to suspend access to any portion or all of the Services at any time: (a) to perform scheduled or unscheduled maintenance or make any modification or improvement to any of the Services; (b) to mitigate the impact of any denial of service attack or other attack on the Services or other event that FoolDNS determines, in its sole discretion, may pose a risk to one or more of the Services, to FoolDNS’s network, to You or to any of FoolDNS’s other customers if the Service were not suspended; or © if FoolDNS determines, in its sole discretion, that any Service is prohibited by law or that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Based Suspensions”). Without limitation to Section 13.4, FoolDNS shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Based Suspension. To the extent FoolDNS is able, it will endeavor to provide You electronic notice of any Service Based Suspension and to post updates to the FoolDNS.com Website regarding resumption of Services following any such suspension, but shall have no liability for the manner in which FoolDNS notices or updates You (if it does at all) regarding such suspension.
Section 10: Fees
- Service Fees. In consideration of Your use of any of the Paid Services, You agree to pay in advance all applicable fees for Paid Services in the amounts set forth on the respective pricing, detail and/or order pages on the FoolDNS.com Website. Fees for any Service or Service feature (new, status adjusted or otherwise) will be effective upon posting by FoolDNS on the FoolDNS.com Website. FoolDNS may increase or add new fees for any existing Free or Paid Service or Free or Paid Service feature at any time without notice. Such notice will be posted on the FoolDNS.com Website. YOU AGREE THAT YOU ARE RESPONSIBLE FOR CHECKING THE FoolDNS.com WEBSITE EACH MONTH TO CONFIRM WHETHER THERE ARE ANY NEW FEES AND, IF SO, THEIR EFFECTIVE DATE.
- Cleanup Fees. If Your use of the Services violates the terms of this Agreement or any of the Additional Policies, and FoolDNS deems it appropriate, in its sole discretion, to take any action to mitigate any impact upon its network or business operations or to resolve any legitimate claim that You have infringed the intellectual property rights of another, You may be charged a cleanup fee of $100.00/hour (minimum 4 hours).
- Use Taxes. All amounts charged to You for the Services are exclusive of any and all applicable federal, state or local use, excise, value-added, gross receipts, sales and/or privilege taxes, duties, fees, universal service assessments or other similar liabilities, other than general income or property taxes imposed on FoolDNS (“Use Taxes”). Any and all such Use Taxes, however denominated, that may now be or are hereafter levied on the Services provided or payments made under this Services Agreement, chargeable to or against FoolDNS by any governmental authority, shall be passed through to, and shall be payable by, You. Any such Use Taxes are in addition to all other fees and charges required to be paid by You under this Agreement. Should FoolDNS pay or be required to pay any Use Taxes, You authorize FoolDNS to charge the credit card You have on file with FoolDNS and if You do not have a credit card on file with FoolDNS You agree promptly reimburse FoolDNS for payments it makes upon Your receipt of an invoice for the same from FoolDNS Nothing in this section shall be construed to make You responsible for any general income or gross receipts tax due from and chargeable against FoolDNS Should FoolDNS deem it convenient or necessary, You agree to provide it such information as reasonably required to determine whether FoolDNS is obligated to collect any Use Taxes from You, including without limitation any applicable identification number.
- Payment. FoolDNS may specify the manner in which You will pay any fees, and any such payment shall be subject to FoolDNS’s payment terms then in effect, which FoolDNS may change from time to time without notice. All amounts payable by You under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, You shall notify FoolDNS and shall pay such additional amounts to FoolDNS as is necessary to ensure that the net amount that FoolDNS receives, after such deduction and withholding, equals the amount FoolDNS would have received if no such deduction or withholding had been required. Additionally, You shall provide FoolDNS with documentation that the withholding and deducted amounts have been paid to the relevant taxing or withholding authority. If You fail to pay amounts due for Paid Services when such amounts are due, late charges of the lesser of one and one-half percent (1.5%) per month or the maximum allowable under applicable law shall also become payable by You to FoolDNS If You fail to pay, when due, any amount payable hereunder, You agree to pay, in addition to any amount past due, plus interest accrued thereon, all reasonable expenses incurred by FoolDNS in collecting such amounts, including, but not limited to, all expenses of any legal proceeding related thereto and all reasonable attorneys’ fees incurred in connection therewith. No failure by FoolDNS to request any such past due payment or to demand any such performance shall be deemed a waiver by FoolDNS of Your obligations hereunder.
5. Refunds. The purchase of all Paid Services is not subject to refund except when expressively stated by Law.
Section 11: Confidentiality
- Use and Disclosure. You agree that You will not disclose any FoolDNS Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, “FoolDNS Confidential Information” shall mean all non-public information disclosed to You by FoolDNS its affiliates, or its business partners or its or their respective agents, assigns or contractors that are designated as confidential or that by its nature or the circumstances surrounding its disclosure, should reasonably be understood to be confidential. More specifically, FoolDNS Confidential Information includes, but is not limited to: (i) nonpublic information relating to FoolDNS’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of FoolDNS’s “beta” tests or a “beta” test products that You obtain as a result of Your participation in such “beta” test), (ii) third-party information that FoolDNS are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between FoolDNS and You. Confidential Information does not include any information described in Section 11.2 or any information that You are required to disclose by law.
- Excluded Information. Notwithstanding any other provision in this Agreement, You shall have no confidentiality obligation to FoolDNS under Section 11.1, with respect to any information provided or made available by FoolDNS hereunder, and FoolDNS shall not have any confidentiality or non-use obligation to You hereunder with respect to any information, software application, data or content provided or made available by You hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
3. Conflict with Separate Non-Disclosure Agreement. If You and FoolDNS are parties to a separate non-disclosure agreement (“Stand-Alone NDA”) and there is a conflict between the terms of the Stand-Alone NDA and the terms of this Section 11, the terms of the Stand-Alone NDA shall control.
Section 12: Intellectual Property
- The Services and FoolDNS Properties. Other than the limited rights and licenses expressly set forth in this Agreement, FoolDNS reserves all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the FoolDNS Properties; (iii) the Marks; and (iv) any other technology and software that FoolDNS provides or uses to provide the Services and/or the FoolDNS Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the FoolDNS Properties, the Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.
- Feedback. Through Your use of the Site and/or Services, there may by opportunities for You to actively participate in the development or redevelopment of the Site, Services or FoolDNS Properties. In the process of doing so, you may provide certain comments, suggestions, data, or other information to FoolDNS (collectively “Information”). FoolDNS shall have the right to retain and use any such Information in current or future products or services, without further compensation to you. To the extent such information is protectable under intellectual property laws, you agree to cooperate with FoolDNS as needed to obtain such protection as FoolDNS may desire and you agree to assign your rights to such Information to FoolDNS Furthermore, FoolDNS may share aggregate (not personally identifiable) Information with its business partners or other third parties. FoolDNS will not, however, knowingly disclose personally identifiable Information to third parties unless required to do so in order to comply with any valid legal process, such as a search warrant, subpoena, statute, court order, or if necessary or appropriate to address an unlawful or harmful activity.
3. Non-Assertion. During and after the term of the Agreement, with respect to any of the Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against FoolDNS or any of its subsidiaries, customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us) sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to the Services, the FoolDNS Properties or the Marks.
Section 13: Representations and Warranties; Disclaimers; Limitations of Liability
- Your Representations and Warranties.
- Use. You represent and warrant that Your use of the Services, the FoolDNS Properties, the Programs and/or Your Content will comply with Terms of Service, available at FoolDNS Website.
- Feedback. You represent and warrant that any Information (in whole or in part), as defined above, contributed by or through You does not violate, misappropriate or infringe any intellectual property rights of any third party.
- Authorization and Account Information. You represent and warrant that: (i) the information You provide in connection with Your registration for the Services is accurate and complete; (ii) if You are registering for the Services as an individual, that You are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if You are registering for the Services on behalf of an entity or organization, (a) You are duly authorized to do business in the country or countries where You operate, (b) You meet the requirements of subsection (ii) above and are an authorized representative of Your entity or organization, and © Your associates, employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and/or to legally bind You to this Agreement and all transactions conducted under Your account.
- Disclaimers. The services, FoolDNS properties, the marks, and all technology, software, functions, content, images, materials and other data or information provided by FoolDNS are provided “as is”, “as available” and without warranty. FoolDNS makes no warranties hereunder, and FoolDNS expressly disclaims all warranties of any kind, both express and implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, absence of lien, encumbrance or security interest, quiet enjoyment, non-infringement and any warranties arising out of any course of dealing or usage of trade. FoolDNS does not warrant that the services will function as described, will be uninterrupted or error free, or free of harmful components, or that the data you store with or in connection with the services will be secure or not otherwise lost or damaged. FoolDNS shall not be responsible for any service interruptions, including, without limitation, power outages, system failures or other interruptions. no advice or information obtained by you from FoolDNS or from any third party or through the services shall create any warranty not expressly stated in this agreement.
- Links. The FoolDNS.com Website and/or the Services may contain links to websites that are not under FoolDNS’s control (“Third Party Sites”). FoolDNS is not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. FoolDNS provide these links to You as a convenience and the inclusion of any such links does not constitute or imply FoolDNS’s endorsement or validation of any Third Party Site.
- Limitations of Liability. FoolDNS shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other losses (even if FoolDNS have been advised of the possibility of such damages) in connection with this agreement, including, without limitation, any such damages resulting from: (i) the use or the inability to use the services; (ii) the cost of procurement of substitute goods and services; or (iii) unauthorized access to or alteration of the programs and/or your content. some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. accordingly, some or all of the above exclusions or limitations may not apply to you, and you may have additional rights. in any such case, FoolDNS’s aggregate liability under this agreement shall be limited to the amount actually paid by you to FoolDNS hereunder for the services.
Section 14: Indemnification
- General. You agree to indemnify, defend and hold FoolDNS and its affiliates, each of their business partners and each of their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including attorneys’ fees), arising out of or in connection with any claim arising out of (i) Your use of the Services and/or FoolDNS Properties in a manner not authorized by this Agreement, the Additional Policies, and/or in violation of any applicable restrictions or applicable law or (ii) Your violation of any term or condition of this Agreement or any Additional Policies, including without limitation, Your representations and warranties herein, or (iv) You or Your employees’ or personnel’s negligence or willful misconduct.
- Notification. FoolDNS agrees to promptly notify You of any claim subject to indemnification, provided however, that FoolDNS’s failure to promptly notify You shall not affect Your obligations hereunder except to the extent that FoolDNS’s failure to promptly notify You delays or prejudices Your ability to defend the claim. At FoolDNS’s option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to FoolDNS’s written consent) and to settle such claim as You deem appropriate, provided that You shall not enter into any settlement without FoolDNS’s prior written consent and provided that FoolDNS may, at any time, elect to take over control of the defense and settlement of the claim.
Section 15: Export Compliance and Restrictions
You shall, in connection with Your use of the Services and/or the FoolDNS Properties, comply with all applicable export and re-export control laws and regulations, including the United States Export Administration Regulations, the International Traffic in Arms Regulations, and any country-specific economic sanctions programs implemented by the United States Office of Foreign Assets Control in connection with Your use of the Services or FoolDNS Properties.
Section 16: Announcements and Marketing
FoolDNS may send You announcements regarding the Services and other items which it believes You may find of interest to the address(es) You keep on file with FoolDNS You understand and agree that FoolDNS may: (i) publicly list You as a recipient of the Services on its website and in its marketing materials and (ii) publicly announce the fact that You are using FoolDNS’s services.
Section 17: Miscellaneous Provisions
- To You. Except as otherwise set forth herein, notices made by FoolDNS to You under this Agreement that affect customers generally will be posted on the FoolDNS Website. Notices made by FoolDNS under this Agreement for You or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via the email address provided to FoolDNS in Your registration for the Services or in any updated email address You provide to FoolDNS in accordance with standard account information update procedures FoolDNS may provide from time to time. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon FoolDNS’s sending of the email, whether or not You actually receive the email.
- To Us. For notices made by You to FoolDNS under this Agreement and for questions regarding this Agreement or the Additional Policies email support@FoolDNS.com.
- Language. You agree that the English language version of this Agreement will govern Your relationship with FoolDNS and that all communications and notices to be made or given pursuant to this Agreement shall be in the English language.
- Third Party Activities. If You allow, authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, You shall be deemed to have taken the action Yourself.
- Severability. If any provision, or portion thereof, of this Agreement or any of the Additional Policies are determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of the relevant agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct and the parties shall use their best efforts to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the parties had the stricken provision remained.
- Force Majeure. In the event either party is unable to carry out its material obligations under this Agreement by reason of “force majeure” (defined below) those obligations will be suspended during the continuance of the force majeure, provided the cause of the force majeure is remedied as quickly as practicable. The term “force majeure” means any event caused by occurrences beyond a party’s reasonable control, including, but not limited to, acts of God, fire or flood, war, terrorism, governmental regulations, policies or actions enacted or taken subsequent to execution of the Agreement, or any labor, telecommunications or other utility shortage, outage or curtailment.
- Waiver. No waiver of any term or condition of this Agreement or any Additional Policy shall be construed as a waiver of any other term or condition, nor shall any waiver of any default under the same be construed as a waiver of any other default. No waiver of any provision hereof or any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, and no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
- Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties hereto and to their respective successors and assigns.
- No Endorsement. You understand and acknowledge that FoolDNS is not certifying nor endorsing, and have no obligation to certify or endorse, any program or service provided by You to others.
- Relationship. The performance by FoolDNS of its duties and obligations under this Agreement and shall be that of an independent contractor, and nothing in this Agreement shall create or imply an agency relationship between FoolDNS and Client, nor will the Agreement be deemed to constitute a joint venture or partnership between the parties hereto.
- Survival. The respective rights and obligations of the parties hereto shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, if they should by law or by their nature ordinarily be deemed to survive, including, but not limited to, Sections 10, 11, 12, 13, 14, 16 and 17 hereof.
- Injunctive Relief. You acknowledge that unauthorized use, copying, or appropriation of the Services and/or the FoolDNS Properties would cause FoolDNS immediate and irreparable harm by substantially diminishing the value of FoolDNS and FoolDNS Inc’s copyrights, proprietary rights, and/or trade secrets, and that the remedy at law for such unauthorized activity is inadequate. You agree that the FoolDNS its successors or assigns, may obtain temporary and/or permanent injunctive relief from any court of competent jurisdiction, without the necessity of posting bond, to restrain any breach or threatened breach of Your obligations under this section 17.11. Any such remedy sought or obtained shall not be considered exclusive or a waiver of the rights of the FoolDNS or its successors or assigns to assert any other remedies it or he may have at law or in equity.
- Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of Italy without reference to the conflict of laws principles (and specifically excluding the UN Convention for the International Sale of Goods), and all disputes arising under, out of, or in any way connected with this Agreement shall be litigated exclusively before the Tribunale di MILANO and in no other court or jurisdiction even in case of plurality of defendants, according with what set forth in the article 28 (according with article 6) of the Codice di Procedura Civile. Reseller agrees that the Tribunale di Milano shall have jurisdiction over it and it hereby irrevocably submits to the jurisdiction of the said courts.
- Headings. Headings used in this Agreement and the Additional Policies are solely for convenience and shall not be deemed to affect in any manner the meaning or intent of the applicable agreement or any provision there/hereof.
- Entire Agreement. This Agreement, together with the Additional Policies, constitute the complete and exclusive statement of all mutual understandings between You and FoolDNS with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
Art. 1341, comma 2, Cod.civ.