The following terms, when used in this Agreement, shall have the following meanings.
b. “Content.” The term “Content” means all Information or other material in any form or media, contained in, obtained from, or relating to the Site, including without limitation all results obtained from the Site and the look and feel of the Site.
c. “Content Providers.” The term “Content Providers” means both NTT Global Data Centers Americas and Other Providers.
d. “NTT Global Data Centers Americas.” The phrase “NTT Global Data Centers Americas” means NTT Global Data Centers Americas, a Nevada corporation.
e. “Including,” “includes,” “include.” The phrases “including,” “includes,” and “include,” wherever used in the Agreement, means “including, but not limited to.”
f. “Information.” The phrase “Information” includes all data, information, documents, files, personally-identifying information, graphics, photographs, images, audio, video, software, systems, processes, trademarks, service marks, and trade names disclosed by one party to the other on or in connection with the Site or your Site Use.
g. “Linked-Site.” A “Linked-Site” means any Internet site (including all information, data, and content thereon) that is linked to the Site, but not owned by NTT Global Data Centers Americas.
h. “Notice.” The phrase “Notice” refers to the sending of information by you to NTT Global Data Centers Americas via certified mail, return receipt requested, to NTT Global Data Centers Americas at: NTT Global Data Centers Americas, ATTN: Legal Department, 1625 National Drive, Sacramento, CA 95834. Any such notice shall be deemed given 48 hours after such Notice is sent.
i. “Other Providers.” The terms “Other Providers” means NTT Global Data Centers Americas' direct or indirect licensors, NTT Global Data Centers Americas' affiliates, or other contributors to the Site (other than NTT Global Data Centers Americas).
j. “Parties.” The term “Parties” refers to NTT Global Data Centers Americas and you, collectively.
l. “Revised Agreement.” If the Agreement is modified in accordance with the section titled “Modifications,” for convenience in distinguishing the original Agreement from the modified Agreement, the modified Agreement may be referred to as the “Revised Agreement.”
m. “Site.” The term “Site” means any NTT Global Data Centers Americas Internet site, page (and all sub-pages), uniform resource locator (“URL”), domain location, and all Information and Content thereon.
n. “Site Use.” The term “Site Use” means your use of or access to the Site (or any Content thereon), as well as any other activities in which you engage relating to the Site.
2. COPYRIGHT NOTICE
Copyright 2000-2016 NTT Global Data Centers Americas, Inc. All Rights Reserved.
3. TRADEMARK NOTICE
“NTT Global Data Centers Americas,” “N-Matrix,” “Zipper Logic,” “The Bolt,” “The Rock,” “2N+2,” “The Smart Choice in Data Centers,” “Full-Service Colo,” “Engineered for the Enterprise,” “NTT Global Data Centers Americas, an NTT Communications Company,” “RagingWire.com,” and their respective logos, are trademarks and/or service marks of NTT Global Data Centers Americas. Unless otherwise noted on the Site, all other trademarks, service marks, and logos used in this Site are the trademarks, service marks or logos of their respective owners.
4. LICENSE GRANT & OWNERSHIP BY NTT GLOBAL DATA CENTERS AMERICAS
a. License. Subject to the terms and conditions of this Agreement, and until termination of the Agreement, NTT Global Data Centers Americas grants you a non-exclusive, non-transferable, limited license to view or print the Content in this Site without alterations, for personal, non-commercial use only. This limited license does not apply to any media or platform other than that of the current Site. NTT Global Data Centers Americas may revoke this License and your access to the Site, or any part thereof, including blocking your IP address, at any time without prior notice.
b. Ownership. All Content on or provided to you through or in connection with the Site is (and shall continue to be) owned exclusively by NTT Global Data Centers Americas or Other Providers, and is protected under applicable copyrights, patents, trademarks, trade dress, and/or other proprietary rights, and the copying, redistribution, use or publication by you of any such Content or any part of the Site is prohibited. Under no circumstances will you acquire any ownership rights or other interest in any Content by or through your Site Use.
5. RESTRICTIONS ON USE
a. Prohibited Acts. Concerning your Site Use or any Content, you agree not to:
i. restrict or inhibit any other user from using and enjoying the Site;
ii. use any device, software or technique to interfere with or attempt to interfere with the proper working of the Site;
iii. post or transmit into or on the Site any unlawful, fraudulent, threatening, harassing, abusive, libelous, defamatory, obscene or otherwise objectionable or harmful Information of any kind;
iv. post or transmit into or on the Site any Information or software that contains a virus, bug, worm, trojan horse or other harmful or disruptive element;
v. publish, republish, perform, distribute, assign, sublicense, sell, prepare derivative works, modify, lease, rent, copy, reverse compile, reverse engineer, reverse assemble, transmit, display, decompile, translate, or use the Content (other than as expressly permitted in sections 3 and 6(d));
vi. post or transmit into or on the Site any Information in violation of another party's copyright or intellectual property rights, including Information that infringes on another's rights;
vii. take any action which imposes an unreasonable or disproportionately large load on NTT Global Data Centers Americas' infrastructure, as determined solely by NTT Global Data Centers Americas;
viii. redeliver any of the Content using “framing,” hyperlinks, or other technology without NTT Global Data Centers Americas' express written permission;
ix. use any device or technology to provide repeated automated attempts to access password-protected portions of the Site; or
x. use the Site or any Content to conduct or promote any illegal activities, including without limitation identity theft, pretexting, or any other threatening, harassing, abusive, libelous, defamatory, obscene or otherwise objectionable or harmful activities.
b. Commercial Exploitation. You agree not to reproduce or commercially exploit any Content in any form, other than as expressly provided in the section titled “License Grant & Ownership by NTT Global Data Centers Americas.”
c. Right to Regulate. You acknowledge that NTT Global Data Centers Americas has the right, but no obligation, to monitor the Site and to disclose any Information necessary to operate the Site, to protect NTT Global Data Centers Americas, Other Providers, and NTT Global Data Centers Americas’ customers, and to comply with legal obligations or governmental requests. NTT Global Data Centers Americas reserves the right to refuse to post or to remove any Information on the Site, in whole or in part, for any reason.
d. Law Compliance. You agree to comply with all governmental laws, statutes, ordinances, and regulations (including unfair competition, anti-discrimination or false advertising) regarding your Site Use.
6. YOUR SITE USE ACTIVITIES
a. Password-Protected Areas. If you are allowed access to password-protected areas of the Site, you agree to keep your password confidential, and to send Notice to NTT Global Data Centers Americas no later than 24 hours after your password is compromised. You are responsible for safeguarding the password that you use to access password-protected areas of the Site.
b. Unauthorized Email. Relating to your Site Use, you agree not to engage in the sending of any mass email messages (also known as “spamming”) to NTT Global Data Centers Americas, its employees, its customers, or other third parties.
c. Linked-Sites. You acknowledge that NTT Global Data Centers Americas neither endorses nor is affiliated with any Linked-Site and is not responsible for any information (including any materials, software, content, or data) that appears on the Linked-Site. No information in any Linked-Site has been investigated, confirmed, approved, or verified by NTT Global Data Centers Americas. If you access a Linked-Site, then you do so at your own risk. You also acknowledge that the owner of the Linked-Site neither endorses nor is affiliated with NTT Global Data Centers Americas. If you have a dispute or claim relating to a Linked-Site, you release NTT Global Data Centers Americas from any and all such claims.
d. Dated Materials. You acknowledge that NTT Global Data Centers Americas has no obligation to update the Site, and that there is a possibility that Content may be out of date.
e. External Issues. You acknowledge that (i) the Internet is a network of computers worldwide, and that any Information submitted by you to NTT Global Data Centers Americas necessarily is routed via third party computers to NTT Global Data Centers Americas, (ii) NTT Global Data Centers Americas is not responsible for lapses in online security and does not assume liability for improper use of your information by a third party.
f. Other Provider and Third-Party Content. The Site may contain content that is owned by Other Providers, or that is available in the public domain. NTT Global Data Centers Americas and its licensors make no representation or warranty of any kind with regard to any Other Provider or third party content, including the accuracy, completeness or usefulness of such Other Provider or third party content or of the results generated based on the Other Provider or third party content.
7. SUBMISSIONS OF INFORMATION BY YOU
When applicable, before submitting any Information to this Site, you agree to always check your license agreements (including software licenses) to make sure that you do not infringe the intellectual property rights of others. You agree that, by submitting any Information to NTT Global Data Centers Americas, you grant NTT Global Data Centers Americas a nonexclusive, worldwide, perpetual, royalty-free license to (in any media now known or not currently known or invented) link to, utilize, use, copy, reproduce, distribute, adapt, perform, display, sublicense (through multiple tiers), exploit, and prepare derivative works of the submitted Information. By submitting Information to NTT Global Data Centers Americas, you represent and warrant that you have the authority to grant such rights to NTT Global Data Centers Americas.
YOU RETAIN OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO ANY INFORMATION YOU SUBMIT TO NTT GLOBAL DATA CENTERS AMERICAS.
8. APPLICABILITY, COOPERATION & INDEMNITY
a. Geographic Scope. NTT Global Data Centers Americas reserves the right to limit the provision of any product or service to any person, geographic area or jurisdiction as it so desires, or as required by law.
b. Content changes. NTT Global Data Centers Americas in its sole discretion may add, delete or change the Content at any time, without notice to you.
c. Indemnity. You agree to indemnify, defend and hold harmless NTT Global Data Centers Americas and Other Providers against any and all liabilities, claims, damages, costs or other expenses (including attorneys' fees, costs, expenses, and expert witness fees) that arise directly or indirectly out of or from (i) your breach of this Agreement, or (ii) your Site Use.
9. RESTRICTED RIGHTS & EXPORT CONTROLS
a. Government Use. The software and documentation available on the Site are “commercial items,” as that term is defined in 48 C.F.R. 2.101 (October 1995), consisting of “commercial computer software” and related documentation, as such terms are used in 48 C.F.R. 12.212 (September 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. government end users acquire the software and documentation with only those rights set forth herein.
b. Export Compliance. You acknowledge and agree to comply with all U.S. laws, regulations, and requirements applicable to the export of U.S. origin products and technology.
10. LIMITED WARRANTY AND DISCLAIMER
a. DISCLAIMER OF WARRANTY. NTT GLOBAL DATA CENTERS AMERICAS AND OTHER CONTENT PROVIDERS MAKE NO REPRESENTATION ABOUT THE SUITABILITY OF THE CONTENT HEREON. THIS SITE, AND ACCESS TO ANY LINKED-SITE, IS PROVIDED TO YOU BY ALL CONTENT PROVIDERS “AS IS” AND “AS AVAILABLE,” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU HEREBY WAIVE ALL WARRANTIES BY NTT GLOBAL DATA CENTERS AMERICAS RELATING TO YOUR SITE USE. NTT GLOBAL DATA CENTERS AMERICAS DOES NOT REPRESENT AND WARRANT THAT: (1) YOUR ACCESS TO THE SITE WILL BE SECURE, TIMELY, AND FREE OF INTERRUPTIONS OR ERRORS, (2) THE SITE WILL MEET ANY REQUIREMENTS OR EXPECTATIONS; (3) ANY INFORMATION PROVIDED THROUGH THE SITE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. THE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS, AND THE SITE MAY BE UNAVAILABLE FROM TIME TO TIME. YOU ACKNOWLEDGE THAT NO SUCH REPRESENTATIONS AND WARRANTIES ARE MADE AND YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR SITE USE AND SITE-RELATED SERVICES.
b. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL NTT GLOBAL DATA CENTERS AMERICAS OR ANY OF THE CONTENT PROVIDERS BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING LOSS OF DATA, REVENUE, OR PROFITS), UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE SITE, YOUR SITE USE, OR THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE AND/OR CONTENT IS TO CEASE ALL OF YOUR SITE USE.
You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in this Agreement that directly conflict with such laws may not apply to you.
11. CONTACTING NTT GLOBAL DATA CENTERS AMERICAS
Should you desire to contact NTT Global Data Centers Americas, you may do so at:
NTT Global Data Centers Americas, Inc.
1625 National Drive
Sacramento, CA 95834
Phone: (916) 286-3000
a. Transaction Location, Governing Law, Jurisdiction, & Venue. This Agreement shall be treated as though it were executed and performed in Reno, Nevada, and shall be governed by and construed in accordance with the laws of the United States of America and of the State of Nevada (exclusive of conflicts of law rules). The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Each party to this Agreement hereby submits to the exclusive jurisdiction of the state and federal courts sitting in the County of Washoe in the State of Nevada, consents to the extra-territorial service of process, and waives any jurisdictional, venue or inconvenient forum objections to such courts, and this provision is mandatory. All legal proceedings arising out of or in connection with this Agreement shall be brought solely in Washoe County, Nevada. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT YOU MAY BRING CLAIMS AGAINST NTT GLOBAL DATA CENTERS AMERICAS ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. NTT Global Data Centers Americas makes no representation that the Content is appropriate or available for use in locations outside the United States of America, and your accessing the Content from locations where such Content is illegal is strictly prohibited.
b. Disputes & Attorneys' Fees. In any action to enforce this Agreement, the prevailing party will be entitled to its costs, attorneys' fees, and expenses (including expert witness fees). You acknowledge that any breach by you of the provisions of the Agreement will cause irreparable damage to NTT Global Data Centers Americas or Other Providers and that a remedy at law will be inadequate. Therefore, in addition to any and all other legal or equitable remedies, NTT Global Data Centers Americas and Other Providers will be entitled to injunctive relief for any breach of this Agreement.
c. Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
d. Complete Integration. This Agreement constitutes the entire and only agreement between you and NTT Global Data Centers Americas pertaining to the subject matter hereof, and is intended to be a complete and absolute integration of the agreement between the parties. Concerning the subject matter hereof, any and all prior written agreements, representations, understandings, and warranties (collectively, “Understandings”), and all contemporaneous or prior oral Understandings between the parties are expressly superseded, canceled, and replaced by this Agreement. You agree to review this Agreement prior to any Site Use, and each Site Use by you shall constitute and be deemed your unconditional acceptance of this Agreement. The Parties agree that this Agreement and all Information relating to your Site Use are properly authenticated documents and may be given full evidentiary weight if submitted in evidence by you or NTT Global Data Centers Americas.
e. Modifications. This Agreement may only be modified by NTT Global Data Centers Americas at any time, by posting a Revised Agreement on the Site. The Revised Agreement shall be effective immediately for all of your subsequent Site Use. You agree to review the Agreement periodically to be aware of the terms and conditions applicable to future Site Use.
f. Limitations Period. Any cause of action by either party must be instituted within one (1) year after the Site Use relating to such cause of action, or be forever waived and barred.
g. Termination. This Agreement will be effective on the date you first use the Site and will continue until terminated. The Agreement may be terminated by either Party, in its sole and absolute discretion, at any time and for any reason (with or without cause), with or without notice. You agree that NTT Global Data Centers Americas has no obligation to retain any Information provided by you after the termination of the Agreement.
h. Survival of Certain Provisions. The provisions of the sections titled “License Grant & Exclusive Ownership by NTT Global Data Centers Americas” (sub-section “b.” only), “Restrictions on Use,” “Warranty and Disclaimer,” “Limited Applicability, Cooperation & Indemnity,” “Your Site Use Activities,” “Submissions of Information by You,” “Miscellaneous” (only sub-sections “Transaction Location, Governing Law, Jurisdiction & Venue,” “Disputes & Attorneys' Fees,” “Severability,” “Limitations Period,” and “Termination”) shall survive the expiration or termination of this Agreement. No expiration or termination of this Agreement shall release you from any obligation to pay NTT Global Data Centers Americas any amount that has accrued and become payable at or prior to the date of expiration or termination.
i. Assignment; Transfer. You shall not assign or transfer any interest in this Agreement, whether by merger, consolidation, operation of law, or otherwise without the prior written consent of an authorized executive officer of NTT Global Data Centers Americas, which may be withheld in NTT Global Data Centers Americas’ reasonable discretion. Any assignment in violation of this provision is void.
j. Waiver. No delay or omission to exercise any right or remedy accruing to NTT Global Data Centers Americas upon any breach or default by you shall impair that right or remedy, or be construed to be a waiver of any breach or default, unless contained in an express writing executed by an authorized officer of NTT Global Data Centers Americas.
k. Headings. All article or section headings, or exhibit names, are for reference and convenience only and shall not be considered in the interpretation of the Agreement.
l. No Agency. You and NTT Global Data Centers Americas are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
m. Conflicts. If this Agreement conflicts with a provision of any other contract between you and NTT Global Data Centers Americas relating to the Site, the provision in such other contract shall govern.