DynLabs Terms of Service

DynLABS TERMS OF USE AGREEMENT
Last updated 8/31/08

Access to this web site (the “Site”) and the services provided through this site (the “Services”) are provided to you by Dynamic Network Services, Inc. (“DNS Inc.”). The terms set forth below (the "Agreement") govern your use of the Site and the Services. By using or visiting the Site and/or using the Services, you expressly agree to be bound by this Terms of Use Agreement (the “Agreement”) and to follow all terms and applicable laws and regulations governing the Site. If you do not agree with this Agreement, your sole recourse is to use neither the Site nor the Services.

1. Priority. This Agreement, in combination with DNS Inc.'s general Acceptable Use Policy (available at http://www.dyndns.com/about/legal/aup.html ) and DNS Inc.'s general Privacy Policy (available at http://www.dyndns.com/about/legal/privacy.html ), set forth the terms and conditions under which DNS Inc. makes the Site and Services available to you. In the event of an inconsistency between this Agreement and either DNS Inc.'s general Acceptable Use Policy or Privacy Policy, this Agreement shall control.

2. Representations and Confidentiality. You represent and warrant that: (a) you will use the Site and/or Services solely for personal, non-commercial purposes; (b) you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content from the Site as they are protected by U.S and international intellectual property laws; (c) you are not, and you do not work for or represent, a person or entity that is a DNS Inc. Competitor (defined below); (d) you will not provide any information about the Site or Services to a DNS Inc. Competitor or in any way assist a DNS Inc. Competitor in gathering information about the Site or the Services; and (e) you will not disclose any Confidential Information (defined below) to a third party, including without limitation a DNS, Inc. Competitor, or use such Confidential Information for any purpose other than to facilitate beta testing of the Site and/or Services, except that you may disclose Confidential Information to the extent required by law, provided you give DNS Inc. advanced notice reasonably sufficient to allow it to contest such disclosure. DNS Inc. shall have the right to take appropriate civil and/or criminal legal action against you if you violate of any of the above representations and warranties. If you wish to use any portion of the Site or Services for commercial purposes, please contact DNS Inc. for more information.

For the purposes of this Agreement: (a) "DNS Inc. Competitor" refers to any person or entity: (i) that offers stand-alone DNS services or virtual server hosting as commercial services; (ii) that is in any way involved in the commercial development or provision of such services; or (ii) that in any other way develops or provides products or services competitive with the Site or Services; and (b) "Confidential Information" means any information regarding the Site or Services unless such information is: (i) provided at the DNS Inc. web site ( http://www.dyndns.com ) and made available to Internet users without an account or password; (ii) already publicly known other than through your act or omission; or (iii) made available by DNS Inc. to its customers after the public commercial launch of the Services.

3. Proper Use. You are solely responsible for your use of the Site and/or Services. Your use of the Site and/or Services is subject to all applicable local, state, federal, and international laws and regulations. You agree: (a) to comply with all local, state, and federal laws regarding the transmission of technical data exported from the United States through use of the Site and/or Services; (b) not to use the Site and/or Services for illegal purposes; (c) not to interfere with or disrupt networks connected to the Site and/or Services; and (d) to comply with all regulations, policies, and procedures of networks connected to the Site and/or Services. The Site and/or Services may make use of the Internet's DNS protocol to create and delegate domains; therefore, your conduct is subject to Internet regulations, policies, and procedures. You expressly agree that you will not use the Site and/or Services for unauthorized distribution of copyrighted material, creation or distribution of illegal software or illegal pornography, spamming, linkspamming, spamdexing, or any use of distribution lists to any person who has not given specific permission to be included in such a process. For purposes of this Agreement, facilitation of the illegal distribution of copyrighted materials, through operation of a "hub", "tracker", or other filesharing mechanism, shall be considered identical to the actual illegal distribution of those copyrighted materials. You agree not to transmit, using the Site and/or Services, any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited. You shall not knowingly interfere with another’s use or enjoyment of the Site and/or Services. DNS Inc., at its sole discretion, may immediately terminate your ability to access the Site and/or Services if your conduct fails to conform to the terms and conditions of this Agreement.

4. User Contributions and Privacy. There may by opportunities within the Site for you to actively participate in the development or redevelopment of the Site or the Services. In the process of doing so, you may provide certain comments, suggestions, data, or other information to DNS Inc. (collectively "Information"). DNS Inc. shall have the right to retain and use any such Information in current or future products or services, without further compensation to you. To the extent such Information is protectable under intellectual property laws, you agree to cooperate with DNS Inc. as needed to obtain such protection as DNS Inc. may desire and you agree to assign your rights to such Information to DNS Inc. Furthermore, DNS Inc. may share aggregate (not personally identifiable) Information with its business partners or other third parties. DNS Inc. will not, however, knowingly disclose personally identifiable Information to third parties unless required to do so in order to comply with any valid legal process, such as a search warrant, subpoena, statute, court order, or if necessary or appropriate to address an unlawful or harmful activity.

5. No Warranty. THE SITE AND/OR SERVICES ARE EXPIRAMENTAL AND PROVIDED “AS IS” AND WITH NO WARRANTY. DNS INC. EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, BOTH EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ABSENCE OF LIEN, ENCUMBRANCE OR SECURITY INTEREST, QUIET ENJOY-MENT, AND NONINFRINGEMENT. DNS, INC. MAKES NO WARR-ANTY THAT THE PROGRAM WILL MEET THE YOUR NEEDS, OR THAT THE ACCESS TO THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES DNS INC. MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROGRAM OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PROGRAM OR THAT ANY DEFECTS ON THE SITE OR IN THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE AND/OR SERVICES IS DONE AT THE YOUR'S OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER(S) OR COMPUTER SYSTEM(S) OR ANY LOSS OF DATA BY YOU THAT RESULT FROM OF SUCH MATERIAL AND/OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLU-SIONS MAY NOT APPLY TO YOU.

6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DNS INC. SHALL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFIT, REVENUE, USE OR DATA IN CONNECTION WITH USE OF THE SITE AND/OR THE SERVICES, EVEN IF DNS INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DNS INC. SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNT. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 6 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT, IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

7. Release and Waiver. To the maximum extent permitted by applicable law, you hereby release, and waive all claims against DNS Inc. and its employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with use of the Site and/or Services.

8. Modifications of Terms. DNS Inc. shall have the right to modify the terms of this Agreement at any time, which modification shall be effective immediately upon posting to the Site. Accordingly, we suggest that you check this page periodically. To make your review more convenient, we will post a version number or date near the top of this Agreement.

9. Violations of Terms. In addition to any legal remedies that DNS Inc. may have for your violation of the terms of this Agreement, DNS Inc. shall also have the right in its sole discretion to suspend or terminate your access to the Site and/or the Services.

10. Hold Harmless and Indemnity. You agree to indemnify, defend, and hold harmless DNS Inc., its directors, officers, shareholders, employees and agents, and their respective successors, assigns, estates and heirs from and against any and all causes of action, losses, liabilities, claims, damages, obligations, fees, costs, expenses (including, without limitation, reasonable legal/attorney’s fees), brought by or owing to any third party and arising from any wrongful act or omission perpetrated by You in connection with or arising as a result of Your use of the Site and/or Services. In such a case, DNS Inc. will provide you with written notice of such claim, suit or action.

11. No Assignment. You shall not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without DNS Inc.'s prior written consent. Any such purported assignment or delegation by you without DNS Inc.’s prior written consent will be null and void and of no force or effect, unless otherwise expressly consented to by DNS Inc. at its sole and unfettered discretion.

12. Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.

13. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate shall be determined by confidential arbitration in New Hampshire before a panel of three Arbitrators. At the option of the first to commence an arbitration, the arbitration shall be administered pursuant to JAMS’ Streamlined Arbitration Rules and Procedures or AAA’s Commercial Arbitration Rules. The three Arbitrator panel shall be comprised of one Arbitrator selected by DNS, Inc., one selected by you, and one selected by the two selected Arbitrators. Judgment on any award may be entered in any court having jurisdiction. This clause shall not preclude either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration shall be conducted in Manchester, New Hampshire and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, DNS Inc. may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.

14. Miscellaneous. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct and you agree to use your best efforts to work with DNS Inc. to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the parties hereto had the stricken provision remained. No waiver of any term or condition of this Agreement shall be construed as a waiver of any other term or condition, nor shall any waiver of any default under this Agreement be construed as a waiver of any other default. No waiver of any provision hereof or any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, and no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. No waiver of any term or condition of this Agreement shall be construed as a waiver of any other term or condition, nor shall any waiver of any default under this Agreement be construed as a waiver of any other default. The section headings contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. The respective rights and obligations of the Parties hereunder shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, if they should by law or by their nature ordinarily be deemed to survive. This agreement shall be interpreted in accordance with the laws of the State of New Hampshire without regard to its conflicts of law provisions. This Agreement constitute the complete and exclusive statement of all mutual understandings between DNS Inc. and you with respect to the subject matter hereof.