1. YOUR ACCEPTANCE AND CONTRACTUAL RELATIONSHIP

By using Services, you represent and warrant that you are of age under the laws of your jurisdiction and/or lawfully able to enter into contracts. If you are not legally able to enter into contracts, you may not use the Services at any time or in any manner, or submit any information to Ecobyte or the Services.

If you are entering into these Terms on behalf of a business entity or organization, you represent and warrant that you have the legal authority and capacity to bind such business entity or organization. If you are not authorized nor deemed by law to have such authority, you assume sole personal liability for the obligations set out in these Terms.

2. PRIVACY

Please review our privacy policy (the “Privacy Policy”) which explains how we use information that you submit to Ecobyte. The Privacy Policy is hereby incorporated by reference. Additionally, for California residents please refer to our California Privacy Notice and for residents of the European Economic Area (EEA) please refer to our GDPR Privacy Notice before registering for the Services.

3. MODIFICATIONS AND ADDITIONAL TERMS

1. These Terms. Ecobyte can change, update, add or remove provisions of these Terms at any time by posting the updated Terms on the Site and by providing a notice on Services. We will ask for your express consent to the updated Terms where we are legally required to do so, and our notice to you will explain how you can accept or reject the changes. If you do not agree with any of the updated Terms, you must stop using the Services. Unless otherwise required by law, the updated Terms are effective as of the day of posting.
2. The Services. Ecobyte may make changes to the Services at any time, without notice to you. If you object to any changes to the Services, your sole recourse will be to cease using the Services. Continued use of the Services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Services as modified. We also reserve the right to discontinue the Services, or any component of it, at any time without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Services.
3. Paid subscriptions. Please note that if you are under paid-subscription services with us, in the event we change the price for the services which you have previously agreed to pay or if we substantially change the services you are paying for, we will also notify you of such changes as contemplated in Section 3(1) above. Any changes will become effective after your then-current subscription expires or terminates. If you do not agree with such changes and you communicate this to us in accordance with the notification, we will not automatically renew your subscription even if you previously agreed to automatic renewal for payment.
4. Additional Terms. In addition, certain features of the Services may be subject to additional terms of use (“Additional Terms”), which shall be provided to you at the moment you choose to use such features or services. By using such features, or any part thereof, you agree to be bound by the Additional Terms applicable to such features. In the event that any of the Additional Terms governing such features conflict with these Terms, the Additional Terms will govern.
5. Executive Contract(s). If You have entered into a separate executed (i.e. signed) agreement for services with Ecobyte (collectively and individually, “Contract”), such Contract shall supersede these Terms. In the event of any conflict between these Terms and the Contract, the Contract will prevail. In cases where the Contract does not address specific provisions included in these Terms, these Terms will apply, supplementing the Contract.

4. USERS

1. Visitors. Visitors may browse the Site in accordance with these Terms but will not have full access to the Services without first becoming “Registered Users.”
2. Registered Users and Accounts. In order to access certain features of the Services you will be required to become a Registered User. A “Registered User” is a User who has registered an account with us (your “Account”). As a Registered User you choose what information you may make public or showcase. By registering as a User you represent that you are not barred from using the Services under these Terms, the laws of the United States of America, your place of residence or any other applicable jurisdiction.
3. Registration Data. In registering for the Services, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree that all notices and communications between Us will be sent to the email address You provide. If you provide any information that is untrue, inaccurate, not current or incomplete, or Ecobyte has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Ecobyte has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof) for breach. You agree not to create an Account using a false identity or information. You agree that you shall not have more than one Account at any given time. You agree not to register for an Account on behalf of an individual other than Yourself, or register for an Account on behalf of any group or entity unless you are authorized to bind such person, group, organization, or entity to these Terms. By registering another person, group, organization, or entity you hereby represent that you are authorized to do so. You agree not to create an Account or use the Services if you have been previously removed by Ecobyte, or if you have been previously banned from any of the Ecobyte properties.
4. Account Management. When You register for the Services, You will choose a login (email) and password. You may use the Services or modify Your Content and data only through such login and password. You are entirely responsible for maintaining the confidentiality of Your password and for any and all activities which occur using Your credentials and/or under your Account. Ecobyte reserves the right to establish an Account verification process to verify the account and/or any information provided. You agree to immediately notify Us of any unauthorized use of Your Account or any other breach of security known to (or reasonably suspected by) You at support@ecobyte.io. Ecobyte shall be entitled to monitor your username and password and, at its discretion, require you to change it. If you use a username and password that Ecobyte considers insecure or inappropriate, Ecobyte will be entitled to require this to be changed and/or terminate your Account. Ecobyte reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. It is also Your responsibility to make sure that Our domain(s) (including “ecobyte.io”) are not included in any spam block list used by You or Your mail provider. You are required to perform all necessary security configuration and management tasks (1) for Your site(s) and all domains, web pages or IP addresses which You are hosting through the Services, and (2) to protect Your Content (defined below) and data, including that of Your customers and/or end users hosted through the Services. You are responsible for management of updates and security patches, any application software or utilities installed, any files accessible via Your site(s), and the configuration of any Ecobyte-provided security utilities.

5. SERVICES

At the time of initial registration, You will select from the list of available Services the service plan(s) to which You wish to subscribe (each a “Subscription”). All Subscriptions to Services are subject to formal acceptance by Ecobyte. Your Subscription to the Services will be deemed accepted by Ecobyte when Ecobyte delivers a confirmation of the Subscription to You. Ecobyte reserves the right to refuse to provide You with any Service for any reason. Notwithstanding Our Uptime Guarantee, Ecobyte also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional Services at any time, provided that You agree to pay the then-current fees for such additional Services. All additional services shall be considered “Services” hereunder. All Services provided are subject to availability and to these Terms.

For as long as you agree to these Terms and abide by them, you may use the Services. These Terms apply to all Users of the Service, including Visitors and Registered Users, who are also contributors of User Content. The Services are licensed, not sold, to you.

1. Grant of a Limited License. The Services are protected by copyright laws throughout the world. Subject to your agreement, and continuing compliance with these Terms, and any other relevant Ecobyte policies, Ecobyte grants you a non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to use the Services and/or download, and use a copy of any Apps or client-software on a device or computer that you own or control and to run such copy solely for your own internal business or individual purposes only. You agree not to use the Services for any other purpose.
2. Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Ecobyte; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services except as expressly permitted by Ecobyte; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

6. SUBSCRIPTIONS AND CANCELLATIONS

1. Subscriptions. Your Subscription or commencement of the Services shall begin upon confirmation to You and receipt of lawful funds, whichever comes earlier. The Subscription initial term’s length is chosen by You and shall be indicated when You subscribe to Our Services. The Subscription may not be terminated by You during the Initial Term (and any renewals thereof) except in the event of a breach by Ecobyte. After the Initial Term, the Subscription shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.
2. Pricing. Subject to Section 3(3), Ecobyte reserves the right to change prices for paid Subscriptions at any time and does not provide price protection or refunds in the event of promotions or price decreases. Any pricing changes will become effective after your then-current Subscription expires or terminates. You understand that if We agree to provide Services to You in the future after your Subscription terminates for any reason, the amount You paid under any prior term or time period is not determinative of the amount You will pay should We provide Services to You again. It is Your responsibility to check Our Site for plan or price changes should You wish to take advantage of plan or price changes which may have occurred. Ecobyte does not automatically update Your Subscription plan. All upgrades or downgrades will be performed at Your request and may include modification of Fees (defined in Section 7(1)) or require reinitiating service with Us.
3. AUTOMATIC RENEWAL TERMS: To facilitate continuity of the Services to you, each paid Subscription contains automatic renewal terms. Ecobyte will automatically renew your paid Subscription as per the Subscription period of your choosing (each a “Subscription Term”), on the anniversary of that date that Ecobyte first charges your Account for the first Subscription fee, and, as authorized by you during the Subscription sign-up process, Ecobyte will charge your Account with the applicable Subscription fee and any sales or similar taxes that may be imposed on your Subscription fee payment (unless you cancel prior to the anniversary date). Each Subscription renewal period is for the same Subscription Term as the prior one, unless otherwise agreed between you and Ecobyte. IF YOU CANCEL YOUR SUBSCRIPTION, YOUR ACCESS TO AND USE OF THE SERVICES WILL BE SHUT OFF ONCE YOUR THEN CURRENT SUBSCRIPTION TERM EXPIRES.

   Ecobyte reserves the right to modify pricing at any time (but not the price in effect for your then-current Subscription Term), upon advance notice to you. If you have not cancelled your Subscription or turned off the auto-renew function within the specified time after receiving notice of a price change, your Subscription will auto-renew at the price indicated in your notice.

4. CANCELLATION TERMS: YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME, AND SUCH CANCELLATION SHALL BECOME EFFECTIVE UPON EXPIRATION OF YOUR THEN-CURRENT SUBSCRIPTION TERM. You agree and understand that you will be charged Subscription fees until the expiration of your then-current Subscription Term and SUBSCRIPTION FEES WILL NOT BE REFUNDED, IN WHOLE OR IN PART, SUBJECT TO APPLICABLE LAW. You will not be eligible for a pro-rated refund of any portion of the Subscription fees paid for any unused days of the then-current Subscription Term. If you have any problems or concerns with your cancellation please contact us at support@ecobyte.io for assistance.

7. PAYMENTS

1. If you purchase any Services that we offer for a fee, either on a one-time or on a Subscription basis (collectively “Fees”), you agree and consent to Ecobyte’s use of third-party payment providers for billing and processing online payments (see below), and you agree to pay the applicable Fees for the Services (including, without limitation, periodic fees for Subscriptions) as they become due, plus all related taxes, and to reimburse us for all collection costs and interest for any overdue amounts. Unless separately negotiated by You and Us, and confirmed by separate written agreement, the initial and recurring Fees for the Services selected by You shall be as provided in the initial on-line order form. All set-up fees and special programming fees are non-refundable. Unless otherwise indicated, we may invoice Fees for Services in advance. Failure to make payment of Fees for Services when due may result in the suspension or termination of Services.
2. Services are billed on an automatic, auto-renewal and recurring basis unless and until you follow Ecobyte’s cancellation procedure set forth in this Agreement. Your obligation to pay fees continues through the end of the Subscription Term (defined in Section 6(3)). Our Subscriptions may be subject to usage limits. You agree and understand that we verify use of the Service periodically. If as part of a routine verification process, we determine that Usage exceeds the current amount of usage limits purchased, we reserve the right to invoice you for the additional use. We may contact you to discuss your current plan and other options available to you. You agree to upgrade to a higher usage plan if necessary.
3. At the time of registration, You must select a payment method. By providing a payment method, You expressly authorize Ecobyte to charge said payment method at regular intervals subject to Your particular Subscription. Ecobyte reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. If You do not pay all Fees when due, Your account will be deemed past due. For any past due Fees, Ecobyte reserves the right to charge You a late fee of $19.95 USD or the highest value allowed by applicable law, whichever is lower.
4. You agree to pay any and all taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. Ecobyte is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. If Ecobyte should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, Ecobyte will invoice You for the difference between payment received and the Fees due. You also agree to pay all attorney and collection fees arising from Ecobyte’s efforts to collect any past-due Fees.
5. If you cancel any Service prior to the expiration of the pre-paid Fees, You understand and agree that Ecobyte, at its sole discretion, may not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees. Any refunds, if any, will be refunded to the original method of payment only.
6. If you do not pay on time or if Ecobyte cannot charge your payment method for any reason, Ecobyte reserves the right to either suspend or terminate your Subscription, access to the Services, and/or Account and terminate these Terms.
7. Coupons and Discount Codes. From time to time, Ecobyte may offer coupons or other discount codes which may be used when signing up for Services with Us. Coupons and discount codes are for first-time customers of Ecobyte only and must be used at the time of Your initial purchase with Us – they may not be applied after commencement of the Services. Unless expressly provided, such coupons and discount codes may not be used toward upgrades to Your account. Any account We deem to be attempting unauthorized coupon or discount code use may be subject to Termination for Cause (see Section 9). Speaking of Coupon and Discount Codes, You should feel free to use code “TERMS” at checkout for a recurring 5% price reduction on any one Service.

8. REFERRAL PROGRAM

We may offer programs allow our users to earn service credits and rewards (“Rewards”) on their Accounts. Please refer to our Referral Program Terms as these may be amended from time to time, before participating in our Rewards’ program. The Referral Program Terms are hereby incorporated by reference.

9. TERMINATION

1. Ecobyte may terminate your Subscription in its sole discretion at any time for any reason or no reason (“Termination without Cause”). In such case, Ecobyte will provide You with thirty (30) days written notice before the discontinuation of Services. If Ecobyte cancels your Subscription pursuant to any of the terms outlined in these Terms, with the exception of Termination without Cause, Ecobyte shall not refund to You any fees paid or prepaid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that Ecobyte terminates the Agreement for cause, all prepaid Fees will be forfeited and are not refundable. The termination of your Subscription does not relieve You of Your obligation to pay any Fees accrued or payable to Ecobyte prior to the effective date of termination of your Subscription.
2. In addition to Ecobyte’s right to terminate your Subscription provided elsewhere in these Terms, Ecobyte may terminate your Subscription effective immediately if, based on Ecobyte’s sole judgment, it determines that You or any of Your end users: (i) have breached the Acceptable Use Policy (“AUP”) or Anti-Spam Policy, (ii) have infringed or violated any intellectual property right or privacy or publicity right of a third party, (iii) have not complied with any applicable law, statute or regulation, or (iv) have uploaded, published or disseminated any images, text, graphics, code or video which Ecobyte considers illegal or high risk, in its discretion, or (v) breached these Terms. Nothing contained in these Terms is intended to, or shall, impose any duty or obligation upon Ecobyte to monitor or review Your Content (defined in Section 12) or the content of Your end users at any time. You remain solely responsible for Your Content, and any liability generated therefrom.
3. The termination of your Subscription will end Your access to the Services and Your license to the Materials. Ecobyte shall not be liable to You or to any third party for termination of the Services permitted under these Terms. Upon termination of your Subscription, Ecobyte reserves the right to maintain copies of Your data files and records for archival purposes but does not undertake any obligation to do so. Ecobyte reserves the right to impose an early termination charge for all Services terminated prior to the last day of the billing cycle.
4. If either party cancels or terminates your Subscription for any reason, You shall be solely responsible for making all necessary arrangements for securing a replacement service provider and timely moving all electronic data, graphics, images, video or text to the new service provider.
5. Ecobyte will not have any liability whatsoever to you for any suspension or termination, including for deletion of Content. All provisions of the Terms, which by their nature should survive, shall survive termination of the Service, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability. You may close your Account by using the feature provided in the Services or, in the alternative, by emailing us at support@ecobyte.io. We will proceed to close your Account and send you an email confirmation.

10. OUR ACCEPTABLE USE AND ANTI-SPAN POLICIES AND OUR COMMUNITY

To use our Services, you agree to and warrant that you will comply at all times with our Acceptable Use Policy (“AUP”) and our Anti-Spam Policy (“Policies”) as these may be amended from time to time, which regulate prohibited and/or acceptable practices relating to the use of our Services, including limitations on User Content, prohibited activities, system abuse and security. If you do not agree with our Policies, you must discontinue use of the Service. The Policies are hereby incorporated by reference.

11. INTELLECTUAL PROPERTY INFRINGEMENT AND DMCA NOTIFICATIONS

Ecobyte does not permit copyright-infringing activities and infringement of intellectual property rights on the Services, and pursuant to the safe-harbor provisions provided by the Digital Millennium Copyright Act of 1998 (“DMCA”), Ecobyte will remove User Content if properly notified that such User Content infringes on another’s intellectual property rights (please refer to our Copyright Policy). Ecobyte reserves the right to remove User Content without prior notice.

12. USER CONSENT

1. Content.
   1. You are responsible for the information, text, opinions, messages, comments, audio visual works, motion pictures, photographs, animation, videos, graphics, sounds, music, software, Apps, and any other content or material that You or your end users submit, upload, post, host, store, or otherwise make available (“Make Available”) on or through the Services (collectively, “Your Content,” “Content” or “User Content”). You may not Make Available on the Services any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any such right protects any material is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any User Content that you make or submit. As between you and us, you own your User Content and you have full responsibility for all User Content you make or submit, including its legality, reliability and appropriateness, while using the Services. You hereby grant to Ecobyte a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your User Content, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and otherwise use and commercialize the User Content in any way that Ecobyte deems appropriate, without any further consent, notice and/or compensation to you or to any third parties, for purposes of providing the Services to you.
   2. Ecobyte will not actively monitor Content being hosted by Ecobyte, although Ecobyte, at its sole discretion, may elect to electronically monitor its network and may disclose any content or records concerning Your Account as necessary to satisfy any law, regulation, or other governmental request or to properly operate Our network and protect any of Our customers. Ecobyte will investigate complaints of a violation of a third-party right or of the AUP. Ecobyte will cooperate with those attempting to minimize Internet abuse and reserves the right to institute “filters” or other mechanisms for that purpose. Ecobyte will cooperate with law enforcement authorities and reserves the right to notify such authorities if it suspects that You or any of Your end users are engaged in illegal activities. Nothing contained in this Section, or anywhere in these Terms, is intended to bestow any rights on any third party, and no third parties shall be entitled to enforce any terms of these Terms between us, the parties.
   3. You acknowledge and expressly agree that Ecobyte will not be liable to You or any of Your end users for any action Ecobyte takes to remove or restrict access to the Services for any alleged violation of the AUP, or exercising its rights as a Good Samaritan under the Telecommunications Act of 1996 (47 U.S.C. § 230(d)) or under the DMCA.
   4. Ecobyte may, at its sole discretion, immediately terminate Your Account and access to the Services, and terminate these Terms for cause, if Your conduct violates our Policies (See Section 10), or if any of Your end users’ or downstream customers’ conduct violate such Policies. We respect the intellectual property rights of all parties and have adopted a policy regarding termination of repeat copyright infringers under the DMCA (See Section 11).
   5. Child Pornography. Ecobyte takes the issue of child pornography very seriously, and any potential harm to minors using our Services is strictly prohibited. Content that is or may be perceived to be child pornography will be immediately removed from public access upon notification or detection by Us. Additionally, Ecobyte reserves the right to terminate any Account whose website(s) hosts or links to child pornography immediately and without notice to You. If the account is a Ecobyte reseller account, the account will be suspended, and the reseller will be directed to terminate the responsible account. You agree to cooperate in any such efforts. Content or communications seeking to solicit, lure or entice minors into sexual activity or lewd behavior is also strictly prohibited, and will be treated the same as, or similar to, child pornography, consistent with applicable law. You agree to cooperate with Ecobyte in any effort to investigate, disable or remove such Content originating with Your end users. Consistent with federal law, Ecobyte will cooperate with law enforcement authorities and will notify such authorities if it suspects that You or any of Your downstream customers or end users are engaged in any such illegal activities.

      In accordance with the reporting requirements of 18 U.S.C. § 2258A, We will report to the CyberTipline (www.cybertipline.com) any actual knowledge of apparent violations of 18 U.S.C §§ 2251, 2251A, 2252, 2252A, 2252B, 2260, or 1466A. If You suspect any instances of child pornography appearing on sites hosted by Ecobyte, We encourage You to send such reports to Our abuse address at abuse@ecobyte.io, and include the file name and/or URL (or other location on the Customer’s site), victim (if known), date of birth, date of production, and any other information about the suspect image(s). Do not send the image(s) in question. Alternately, You may use the CyberTipline to report suspected child pornography. Reports involving sites not hosted by Ecobyte should be directed to law enforcement or to a cooperating child pornography organization such as: https://www.asacp.org/index.php?content=report.

   6. Content appropriate for Minors and Section 230 Notice: You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material on Your site and services. You agree not to allow minors to view any such materials and agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), you are hereby informed that you can research such services at websites such as www.asacp.org. Please note that the Service makes no representation or warranty regarding any of the products or services referenced on such sites and recommends that the user conduct appropriate due diligence before purchasing or installing any online filter. You agree to take particular steps to prevent minors from viewing these kind of materials if Your computer can be accessed by a minor. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age-restricted content on Our Site from being displayed or accessed by Your children or wards.
   7. Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that Ecobyte operates as the provider of an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication of Your Content (including third-party content published on Your web site(s)). We do not create such content, and We are not responsible for the publication of remarks or communications of You or third-parties that may arguably rise to the level of being actionable under federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that federal law allows Ecobyte to remove any content found to be offensive, defamatory, obscene or otherwise violative of Our policies, without impacting Our immunity status as an interactive computer service. Nothing contained in this Section is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act. In the event that any court finds that any third-party communication or third-party content hosted by us falls outside of the realm of the immunity provided by the CDA, this shall not be deemed to be a waiver of any legal protections provided by Section 230 for any and all other content posted on our Site or hosted via our Services.
2. Specific Requirements for Service Providers and User-Generated Content Subscribers.
   1. If You use Our Services for any site, sub-domain, page or business model that allows Your end users or customers to control or upload material to Internet space assigned to You by Us, You shall be deemed to be acting as a “Service Provider” with respect to such services and/or customers. Service Providers include but are not limited to customers which; (i) resell bandwidth as hosts to third parties; (ii) operate user-generated content sites such as forums, “tube” sites, review sites, and online classified advertising sites; (iii) operate search engines; or (iv) operate peer-to-peer file sharing networks. Customers acting as a Service Provider for third-party users shall comply with the following provisions:
      1. You shall notify Us of all domains, web pages or IP addresses for which You are acting as a Service Provider.
      2. You shall comply with 17 U.S.C. §512 of the DMCA by properly designating an agent for receipt of copyright infringement notices, and You shall publish a link on the home page of any website for which You are a Service Provider to a DMCA Notice and Takedown Policy, identifying the website’s designated agent and associated contact information. “Service Providers” within the meaning of 17 U.S.C. § 512(k)(1) require that any DMCA Notices relating to alleged infringement of a Ecobyte Service Provider Customer be submitted directly to the DMCA Agent designated by such Customer.
      3. You shall provide Us with a current link to Your DMCA Notice and Takedown Policy and further advise Us of any changes to Your Designated Agent contact information. This shall be a continuing obligation for as long as You use Our Services.

         It is th policy of Ecobyte to provide any infringement notices it receives relating to Server Provider subscribers directly to the subscriber’s Designated DMCA Agent, and to further notify any copyright claimants of the identity and contact information for such Agent. Failure to maintain compliance with this section shall constitute a material breach of these Terms.

   2. In keeping with Our DMCA policies and obligations set forth above, You understand, agree, and expressly allow Us to access and subsequently disable public access to any files or data residing on the server, disk, partition, or other data space under Your control when such files or data, in Our discretion: (i) have been identified in a substantially-compliant DMCA notice under 17 U.S.C. § 512; or (ii) when We become aware of facts or circumstances indicating that such files or data are infringing on the copyrights or other intellectual property rights of third parties. Given that Our customers may employ various methods of securing files in conjunction with Our Services, and in an attempt to avoid material disruption of Our customers’ Services, You agree that You will provide Us with Your preferred procedure for disabling access to material identified under this provision. If We forward You a substantially-compliant DMCA Notice and which concerns content under Your control, You are obligated under these Terms to immediately disable or remove access to such content. Irrespective of the above, We reserve the right to disable or remove access to such content, in Our discretion, and without claim of damage or injury by You. While We will attempt to simply disable access to such Content without fully deleting it, or suspending all services to your Account, We make no warranties concerning harm or injury to the Content, and reserve the right to take any necessary actions to disable access to the identified material, including suspension or termination of Services. It is therefore in Your best interest to promptly respond to any DMCA Notices You may receive. Should You or Your web site’s users feel that such DMCA Notice was erroneously or improperly sent, You must follow the Counter-Notification procedure set forth in our Copyright Policy, and wait the required period of time, before We allow public access to the content to resume.

   3. Nothing contained in this Section, or any part of these Terms, shall constitute legal or professional advice regarding any matter referenced therein. You are responsible for obtaining your own legal advice regarding compliance with any and all applicable laws or regulations.

3. Content that you Make publicly Available.
   1. In addition to the license granted in Section 12.1(a), You also authorize others to use the User Content that you publicly share or Make Available through the Services.
   2. You may delete, or request deletion of your User Content at any time, unless you have shared such User Content with others and they have not deleted it, or it was copied or stored by other Users. Any User Content you submit is at your own risk of loss, and if shared publicly, non-confidential.
   3. Ecobyte agrees to use any personally identifiable information contained in any of your User Content in accordance with Ecobyte’s Privacy Policy, to the extent applicable. Additionally, please note that certain information, statements, data, and content (such as photographs) which you may submit to Ecobyte, or groups you choose to join might, or are likely to, reveal your gender, ethnic origin, nationality, age, and/or other personal information about you. You acknowledge that your submission of any User Content is voluntary on your part.
   4. We may modify or adapt your User Content in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the User Content as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media.
   5. If you use any “rating” feature of the Services, as applicable, and/or if you send or transmit any communications, comments, questions, suggestions, or related materials to Ecobyte, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Services, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Ecobyte is free to use, without any attribution or compensation to you, any ratings submitted within the Services, and any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Ecobyte may use any of this Feedback in aggregated or non-aggregated from, however Ecobyte is not obligated to use, display, reproduce, or distribute any such ratings, ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
   6. Forums and messaging. Ecobyte may offer various forums where you can post your observations and comments on designated topics. By offering this feature, Ecobyte is merely acting as an intermediary and is not responsible and shall not be liable for such communications. Please note that ideas you post and information you share may be seen and used by other Users, and Ecobyte cannot guarantee that other Users will not use the ideas and information that you share on the Services. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, or that is subject to third-party rights that may be infringed by your sharing it, do not post it on the public forums of the Services. Please refer to Section 11 and our Copyright Policy for more information regarding how we treat infringing content. ECOBYTE IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION POSTED IN ANY ECOBYTE COMMUNITY FORUMS.

13. THIRD-PARTY SERVICES, SOFTWARE, LINKS AND LICENSING

1. Third-Party Services. You may in Your sole discretion elect to use third-party products, software and/or services (collectively, “Third-Party Services”, offered by one or more “Third Party”) in connection with the Ecobyte Services such as through the Ecobyte Marketplace (see Section 14), and Ecobyte may in its sole discretion help facilitate Your use of such Third-Party Services in connection with the Ecobyte Services, however You acknowledge and agree as follows: (i) You are solely responsible for purchasing or licensing Third-Party Services as may be required by any such third party; (ii) You shall be subject to any applicable terms governing such Third-Party Services, which are in addition to this Agreement; (iii) You shall pay all fees charged by such third party for such Third-Party Services, and recognize that the terms governing such fees (including any price adjustments) are not necessarily in Ecobyte’s control, even if payment is facilitated through the Ecobyte Services; (iv) regardless of Ecobyte’s assistance, You are solely responsible for installing and maintaining any Third-Party Services at Your expense; and (v) ECOBYTE SHALL NOT BE LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES, and any assistance provided by Ecobyte in connection with such Third-Party Services shall not alter Your responsibility or Our liability disclaimer under this section.

   You agree and understand that you, and not Ecobyte, are solely responsible for your compliance with the licensing terms of any Third-Party Services or products that are made available to you within the Ecobyte Services. If Ecobyte notifies you of any reporting or compliance obligations to the Third-Party provider, it is your obligation to report your own usage and comply with any licensing terms. Ecobyte will not and does not monitor your compliance. Notwithstanding the foregoing, if any such Third-Party provider finds you (or any of Ecobyte’s customers) non-compliant with the Third Party’s agreement or obligations, Ecobyte reserves the right to terminate the Services or Account of the non-compliant customer, without giving any advance notice. You agree and understand that Ecobyte may and will share all available Customer data with the applicable Third Party if contractually obligated.
   

2. Third-Party Sites and Links. The Services may also be linked to other websites that are not Ecobyte properties (collectively, “Third-Party Sites”). You acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Ecobyte, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third-Party Sites. Ecobyte does not verify, make any representations or take responsibility for any Third-Party Site, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT ECOBYTE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. Any reference on the Services to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply Ecobyte’s endorsement or recommendation.
3. Bring Your Own License. Bring Your Own License (“BYOL”) is the process by which you bring your previously purchased licenses to run on our cloud (“Ecobyte Cloud”). Our deployment model has options to meet platform licensing needs, i.e. you can use licenses provided by us or you can bring your own. When you BYOL, any licensing costs of the product you bring is removed from the price of the instance, and you are solely responsible for managing your licenses.

   Ecobyte partners with Vultr, an entity that is a Microsoft Authorized Mobility Partner (AMP) and participates in Microsoft Software Assurance program. The License Mobility program is part of Microsoft Software Assurance and allows you to bring specific Microsoft product licenses to a new cloud infrastructure. Please visit the Microsoft Product Terms at http://www.microsoft.com/licensing/about-licensing/product-licensing.aspx to view a full list of eligible products.

   All Ecobyte customers using License Mobility through Microsoft Software Assurance are required to complete the license verification process. Once completed, Microsoft will validate that you have eligible licenses with active Software Assurance.

   To start the verification process and review additional details, please go to: https://www.microsoft.com/en-us/licensing/licensing-programs/software-assurance-license-mobility.aspx.

   Please be aware that in every instance, now or at a future time, verification must be completed within ten (10) days of deploying eligible Microsoft Server Application Instances. Upon successfully completing and submitting the verification process, Microsoft will provide a confirmation to you and to Ecobyte.

   When completing the verification submission form, please submit via email to Microsoft at: electagr@microsoft.com and copy Ecobyte at: amp@ecobyte.io.

   Eligible Microsoft server applications can be deployed on the Ecobyte Cloud using existing active licenses through the Software Assurance program. This option allows you to move your existing work environments more conveniently to the Ecobyte Cloud, without any additional Microsoft software licensing fees. This licensing feature is available to Microsoft Volume Licensing customers with eligible server applications covered by active Microsoft Software Assurance (SA) contracts. For further guidance and details, please review the License Mobility & Software Assurance guidelines at Microsoft License Mobility. Your acceptance of these terms is your acknowledgment of the requirements to complete the Microsoft License mobility verification.

14. THE ECOBYTE MARKETPLACE

As part of our Services we may offer access to an online marketplace (the “Ecobyte Marketplace”) for third-party and proprietary cloud and downloadable software applications, plugins and extensions (the “Apps”) that are designed to interoperate with our Services, software and cloud offerings. Please refer to our App Marketplace Terms as these may be amended from time to time, before downloading or using Apps from our Ecobyte Marketplace. The App Marketplace Terms are hereby incorporated by reference.

15. INTELLECTUAL PROPERTY RIGHTS

1. The Services and all proprietary and intellectual property rights embodied and practiced therein, including the look-and-feel of the Site, are and shall remain Ecobyte’s property (or the property of Ecobyte’s licensors). Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Ecobyte’s company names, logos, product and service names, trademarks or services marks or those of Ecobyte’s licensors. There are no licenses by implication. If you breach any of these Terms, the above license will terminate automatically and you must stop using the Services and immediately destroy any Materials downloaded or printed from the Service.
2. All Services provided by Ecobyte may only be used for lawful purposes.
3. As between You and Ecobyte, Ecobyte acknowledges that it claims no proprietary rights in or to Your Content. You hereby grant to Ecobyte a non-exclusive, worldwide and royalty-free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Your Content, solely for the benefit of You and to enable Ecobyte to perform its obligations under these Terms.
4. In connection with performance of the Services and at the sole discretion of Ecobyte, Ecobyte may (but is not obligated to) provide You with certain Materials including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Ecobyte or its suppliers under these Terms, domain names, electronic mail addresses and other network addresses assigned to You, and other know-how, methodologies, equipment, and processes used by Ecobyte to provide You with the Services. Subject to these Terms, Ecobyte hereby grants You a limited, revocable, non-transferable, non-exclusive license to use the Materials solely in connection with the Services. This license terminates when these Terms terminate. As between You and Ecobyte, You acknowledge and agree that Ecobyte owns all right, title, and interest or otherwise has acquired all applicable licenses for the Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any use of the Materials after termination of these Terms is not licensed and strictly prohibited. You agree that You will not upload, transmit, reproduce, distribute or in any way exploit any Materials obtained through the Services without first obtaining express written permission to do so from Ecobyte.
5. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, or if We are required to file an ICANN complaint against You in order to bring about the transfer of an offending URL to Us from You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages, or in order to seek injunctive relief from You, or in order to file and prosecute an ICANN complaint.
6. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.

16. ADDITIONAL PROVISIONS REGARDING THE SERVICES

1. Back ups & data loss. You agree that Your use of Ecobyte’s Services is at Your own risk, and that Ecobyte is not liable for any data loss in connection with its Services. You are solely responsible for creating backups of Your Content. If, during Our own routine maintenance, We do create a backup of Your Content which You later request Us to restore to Your account, We cannot guarantee that we will be able to do so, or that Your Content will be unharmed as a result of the initial data loss or the subsequent restore procedure. To that end, We highly recommend that You establish Your own routine backup procedure and that You periodically test restoring files from Your backup media to ensure that You are making viable backups. Should you wish for Ecobyte to provide you with routine backup services, in addition to the Services provided under these Terms, please Contact Us. We offer many different backup solutions as an add-on service to Our regular Services, and all such services are provided through a separate, written agreement.
2. Resource Usage. Ecobyte reserves the right to suspend services or disable accounts if the account unduly stresses system resources. Ecobyte will advise You of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.
3. Security. Any violation of the security to the Services is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers used to provide the Site, Services, and/or Materials (the “Servers”) is strictly prohibited and is a violation of these Terms and the AUP. You agree not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware or software, compromising the Servers, or for any other unauthorized use commonly known as “hacking.” In the event You are involved in any violation of system security, We reserve the right to release information about You to system administrators at other sites in order to assist in resolving security incidents, and We shall also cooperate with any law enforcement agency investigating a criminal violation of system, cyberthreats, or network security. Additionally, any violation of these security provisions may, at Our sole discretion, be grounds for Termination for Cause of Your Account as per these Terms.
4. Bandwidth usage. Your monthly bandwidth allowance is determined by the specific package for which You sign up. If Your account exceeds Your monthly allowance, we reserve the right to charge you overage fees.
5. Publicity. You grant us the non-exclusive, royalty-free, worldwide right and license to add your name, trademark and company logo (“Customer Marks”) to our customer lists, websites and marketing materials for the purpose of denoting your status as a customer and/or user. You can opt-out of this use by contacting us at legal@ecobyte.io. Notwithstanding the foregoing, nothing herein will limit our ability to use such Company Marks as otherwise permitted under relevant law.

17. HIPAA SERVICE OFFERING AND YOUR OBLIGATIONS

As part of our Services, we may offer Virtual Private Servers that are configurable for compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”) (collectively, the “Configurable HIPAA Server”). You agree that at all times You shall be compliant with HIPAA and HITECH requirements, as applicable, including full compliance when configuring your Configurable HIPAA Server.

The steps You will need to take to comply with HIPAA and HITECH when using Ecobyte will vary based on Your implementation. When contracting with Ecobyte for this service, we will provide you with the applicable documentation, including a list of your obligations, and you agree and understand that you will undergo an architectural review before you can deploy your HIPAA Server, and that you will execute an acknowledgement with Ecobyte to this effect.

You are fully responsible for the security of data on Your HIPAA Server or otherwise in Your possession. You agree to comply with all applicable state and federal laws and rules in connection with Your collection, security, and dissemination of any protected health information (“PHI”) on Your HIPAA Server. If we believe that it is necessary based on Your implementation and we request it of You, then You will promptly provide us with documentation evidencing Your compliance with HIPAA and HITECH. You also agree that You will use only HIPAA compliant service providers in connection with the storage, or transmission of PHI. Information on the HIPAA rules can be found on the HHS website. It is Your responsibility to comply with these standards. As long as Your Account is active, You shall be responsible for managing, retaining and backing up any of Your Content. Ecobyte does not have access to Customer Content stored within HIPAA Servers; nor do we provide backup services. Other than as required by applicable law or legal process or as otherwise agreed, Ecobyte shall not be responsible for retaining a HIPAA Server or Your Content after account termination or for archiving purposes. You acknowledge that, unless you instruct us otherwise, all Content will be securely deleted by Ecobyte after the account is terminated, subject to these Terms. We provide certification of destruction if required.

18. UPTIME GUARANTEE

Ecobyte offers You a Service Level Agreement (“SLA”) guaranteeing certain availability of Our Services. To be eligible for any credits to Your account, You must follow the specific procedures set forth in the SLA for notifying Us of Your desire for credits. You understand and agree that the failure to follow the procedure in the SLA within three (3) days of the triggering event will result in Your waiver of any right to receive credits. SLA credits expire one (1) year after issuance and are not redeemable for cash.

19. INTERACTIONS BETWEEN USERS

You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Service. Ecobyte may limit the number of connections you may have to other Users and may, in certain circumstances, prohibit you from contacting other Users through use of the Services or otherwise limit your use of the Service. Ecobyte reserves the right, but has no obligation, to monitor or become involved in any way with these disputes. You will fully cooperate with Ecobyte to investigate any suspected unlawful, fraudulent or improper activity, including, but not limited to, granting Ecobyte access to any password-protected portions of your Account. Ecobyte reserves the right to restrict, suspend, or close your account if Ecobyte determines, in our sole discretion, that doing so is necessary or in our best interests.

If you have a dispute with one or more Users, you release Ecobyte (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

20. NO WARRANTIES

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. ECOBYTE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, ECOBYTE MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES ECOBYTE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ANY STATEMENTS MADE REGARDING SUCH MATTERS IN PROMOTIONAL MATERIALS SHALL BE CONSIDERED ADVERTISING REFERENCES, AND NOT WARRANTIES. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

ECOBYTE HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE THIRD PARTY.

ECOBYTE MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ECOBYTE OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON ECOBYTE’S WEBSITE.

UNLESS OTHERWISE AGREED TO IN WRITING, ECOBYTE DOES NOT MAKE A BACK-UP OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS.

21. LIMITATION ON LIABILITY

YOU ARE SOLELY RESPONSIBLE FOR CONTENT, THE OPERATION AND SECURITY OF YOUR ONLINE PORPERTIES AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL ECOBYTE BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO CONTENT, THE OPERATION OR SECURITY OF YOUR WEB-SITE AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB SITE AND/OR BUSINESS.

THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.

REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL ECOBYTE, OUR AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON THE SERVICES (“AFFILIATES”), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF ECOBYTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; or (D) FOR YOUR USE OF ANY THIRD-PARTY SERVICES.

THE TOTAL AGGREGATE AND MAXIMUM LIABILITY OF ECOBYTE AND THE AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS YOU HAVE PAID TO ECOBYTE DURING THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.

22. CALIFORNIA RELEASE

If you are a California resident, you waive California Civil Code § 1542, which says: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

23. INDEMNIFICATION

You agree to defend, indemnify, and hold Ecobyte and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach of Your covenants under these Terms; (b) Your use of the Services; (c) any defamatory, libelous or illegal material contained within User Content or Your information and data; (d) any claim or contention that Your Content, Your information and data, or Your use of any Third-Party Services infringes any third party’s patent, copyright or other intellectual property rights or violates any third party’s rights of privacy or publicity; (e) any third party’s access or use of User Content or Your information and data; (f) any violation of the applicable Policies (see Sections 10 and 11). In the event of a claim under this section, Ecobyte shall be permitted to select legal counsel to provide a defense to such claim. Ecobyte reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from You, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Ecobyte, which shall not be unreasonably withheld.

24. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER

Please read this carefully if you are a resident of the United States of America. It affects your rights.

1. Applicable Law. These Terms and any dispute that may arise between you and Ecobyte shall be governed by and construed in accordance with the Federal Arbitration Act, applicable federal law and the laws of the State of New Jersey, United States of America, excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against Ecobyte must be resolved exclusively by a state or federal court located in Seminole County, Florida, except as otherwise agreed by the parties or as described in the Arbitration subsection below. You agree to submit to the personal jurisdiction of the courts located in Seminole County, Florida for the purpose of litigating all such claims or disputes.
2. Dispute Resolution. Before either party may seek arbitration as provided below, the party must first send to the other party a written notice of dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, you and Ecobyte may attempt to resolve the claim or dispute informally. If you and Ecobyte do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding as provided below.
3. Arbitration. You agree that Ecobyte may elect to resolve the dispute in a cost-effective manner through binding arbitration (including non-appearance-based arbitration). In the event Ecobyte elects arbitration, you hereby agree to move any claims to the exclusive jurisdiction of an arbitration procedure, which shall be initiated through the American Arbitration Association or another established alternative dispute resolution provider (collectively, “ADR”) chosen by Ecobyte. The ADR provider and the parties must comply with the following rules: (i) at Ecobyte’s option, the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties, in which case the location of the arbitration shall be Seminole County, Florida, and (iii) the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Seminole County, Florida and conducted by a single arbitrator, knowledgeable in the subject matter of the dispute. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees. Each party shall bear its own attorneys’ fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys’ fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of these Terms, and shall be bound by governing and applicable law. The arbitrator shall be willing to execute an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding.
4. Waiver of Jury Trial. YOU HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. In the event any litigation should arise between you and Ecobyte in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
5. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER

25. EXPORTS

You understand and acknowledge that the software elements of the Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that You will abide by such laws and regulations.

26. GOVERNMENT RIGHTS

The software elements of the Materials have been developed at private expense and are “commercial computer software” or “restricted computer software” within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.

27. CONSUMER NOTICE

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Services are provided by UncommonTrend Solutions, LLC d.b.a. Ecobyte. If you have a question or complaint regarding the Service, please contact Ecobyte’s Customer Services at support@ecobyte.io, Attention: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700 or online at https://www.dca.ca.gov/consumers/complaints/consumer.shtml.

28. ELECTRONIC COMMUNICATIONS

The communications between you and Ecobyte use electronic means, whether you visit the Ecobyte Site, send Ecobyte e-mails, or use the Services or whether Ecobyte posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Ecobyte in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Ecobyte provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. Where Ecobyte requires that you provide an e-mail address; you are responsible for providing Ecobyte with your most current e-mail address. In the event that the last e-mail address you provided to Ecobyte is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, Ecobyte’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Evidence of successful transmission shall be retained. Each of the parties agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communication, is legally sufficient to verify the sender’s identity and the communication’s authenticity; (ii) An electronic communication sent by You containing Your user identification establishes You as its originator and has the same effect as a document with Your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.

29. GENERAL

These Terms together with our Privacy Policy and related notices, Acceptable Use Policy, Copyright Policy, Anti-Spam Policy, our SLAs, our Referral Program Terms, our App Marketplace Terms, any separate Contract we may have executed directly with you, and any Additional Terms that we may make available from time to time through our internet properties, constitute the entire agreement between you and Ecobyte regarding your use of our Services and supersede and replace any prior written or oral agreements regarding the foregoing. Our failure to exercise or enforce any right or provision in these Terms shall not operate as a waiver of such right or provision. If any provision of the Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. Neither the rights nor obligations arising under these Terms are assignable by you. Any such attempted assignment or transfer shall be void and without effect. We may assign these Terms without restriction. Ecobyte is an independent contractor; nothing in these Terms shall be construed to create a partnership, joint venture or agency relationship between the parties. Beginning upon commencement of the Services to You and continuing for a period of two (2) years after the termination of these Terms or after any other cancellation or termination of Your account or Services with Us, You agree not to directly or indirectly, solicit, hire, contract, or otherwise employ any Ecobyte employee who was an employee during the term of these Terms (including the Initial Term and any successive terms), to work for You or any other firm, person or business, of whatever character, corporate or otherwise. Headings. Section and subsection headings of these Terms are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof. Ecobyte shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, public health emergencies, pandemics, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay Ecobyte’s performance.

30. NVIDIA TERMS

Use of the Ecobyte Talon Cloud GPU platform includes use of Nvidia software and technology. By using Nvidia software and technology, you are agreeing to Nvidia’s terms and conditions.

31. CONTACT US

If you have any questions about these Terms or otherwise need to contact Ecobyte for any reason, you can reach us at UncommonTrend Solutions, LLC, 568 Holbrook Circle, Lake Mary, FL 32746, USA with a copy to legal@ecobyte.io.