THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE "BINDING INDIVIDUAL ARBITRATION" SECTION THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ANY "DISPUTE" (AS DEFINED BELOW) BETWEEN YOU AND ASIGNAL NETWORKS, ITS AFFILIATES, PARENTS OR SUBSIDIARIES (COLLECTIVELY, "ASIGNAL NETWORKS ENTITIES"). YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN THE "BINDING INDIVIDUAL ARBITRATION" SECTION.
TO ACCEPT THESE TERMS AND CREATE AN ACCOUNT, YOU MUST BE AN ADULT OF LEGAL AGE OF MAJORITY IN THE COUNTRY IN WHICH YOUR ACCOUNT IS REGISTERED. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS ON YOUR ACCOUNT, INCLUDING THE ACTIONS OF CHILDREN AND ANYONE ELSE WITH ACCESS TO YOUR ACCOUNT.
This Agreement sets forth the standards of use of the Website and Services by you and you (hereinafter also referred to as the "Member") agree to this Agreement. We reserve the right, at any time, to modify, alter, or update the terms and conditions of this Agreement without prior notice. Modifications shall become effective immediately upon being posted at the Website. Your continued use of the Service after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as provided in this paragraph, this Agreement may not be amended.
1. DESCRIPTION OF SERVICE
ASIGNAL NETWORKS, INC. d/b/a “FMG” (hereinafter also referred to as “Asignal Networks” or “we” or “our”) is providing Member with Website services. Member must provide (1) all equipment necessary for their own Internet connection, including computer and modem and (2) provide for Member's access to the Internet, and (3) pay any fees relate with such connection.
2. DISCLAIMER OF WARRANTIES
The Website is provided by Asignal Networks on an "as is" and on an "as available" basis. To the fullest extent permitted by applicable law, Asignal Networks makes no representations or warranties of any kind, express or implied, regarding the use or the results of this Website in terms of its correctness, accuracy, reliability, or otherwise. Asignal Networks shall have no liability for any interruptions in the use of this Website. Asignal Networks disclaims all warranties with regard to the information provided, including the implied warranties of merchantability and fitness for a particular purpose, and non-infringement. Some jurisdictions do not allow the exclusion of implied warranties; therefore in such jurisdictions the above-referenced exclusion shall be inapplicable.
3. LIMITATION OF LIABILITY
ASIGNAL NETWORKS SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR ASIGNAL NETWORKS SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THIS WEBSITE OR THE INFORMATION CONTAINED IN IT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF ASIGNAL NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE IN THOSE JURISDICTIONS SUCH EXCLUSION OR LIMITATIONS SHALL BE INAPPLICABLE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE TOTAL LIABILITY OF ANY OF THE ASIGNAL NETWORKS ENTITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL IN ALL CIRCUMSTANCES BE LIMITED TO ONE THOUSAND US DOLLARS ($ 1000,00).
Member agrees to indemnify and hold Asignal Networks, and any of its parent companies, subsidiaries, affiliates, officers, consultants and employees, harmless from any claim or demand, including reasonable attorneys' fees and costs, made by any third party due to or arising out of: (i) Member's use of the Service, (ii) the violation of this Agreement, or (iii) infringement by Member, or other user of the Service using Member's computer, of any intellectual property or any other right of any person or entity.
5. MODIFICATIONS AND INTERRUPTION TO SERVICE
Asignal Networks reserves the right to modify or discontinue the Service with or without notice to the Member. Asignal Networks shall not be liable to Member or any third party should Asignal Networks exercise its right to modify or discontinue the Service. Member acknowledges and accepts that: (i) Asignal Networks does not guarantee continuous, uninterrupted or secure access to our Website; and that (ii) operation of our Website may be interfered with or adversely affected by numerous factors or circumstances outside of our control.
6. THIRD-PARTY SITES
7. DISCLAIMER REGARDING ACCURACY OF VENDOR INFORMATION
Product specifications and other information have either been provided by the Vendors or collected from publicly available sources. While Asignal Networks makes every effort to ensure that the information on this Website is accurate, we can make no representations or warranties as to the accuracy or reliability of any information provided on this Website. Asignal Networks makes no warranties or representations whatsoever with regard to any product provided or offered by any Vendor, and you acknowledge that any Website reliance on representations and warranties provided by any Vendor shall be at your own risk.
8. GOVERNING JURISDICTION OF THE COURTS OF MASSACHUSETTS
This Website is operated and provided in the Commonwealth of Massachusetts. As such, we are subject to the laws of the Commonwealth of Massachusetts, and such laws will govern this Agreement, without giving effect to any choice of law rules. We make no representation that our Website or other services are appropriate, legal or available for use in other locations. Accordingly, if you choose to access our Website you agree to do so subject to the internal laws of the Commonwealth of Massachusetts.
9. COMPLIANCE WITH LAWS
Member assumes all knowledge of applicable law and is responsible for compliance with any such laws. Member may not use the Service in any way that violates applicable state, federal, or international laws, regulations or other government requirements. Member further agrees 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.
Asignal Networks retains the right, at our sole discretion, to terminate any accounts involved with botnets and related activities. If any hostnames are used as command and control points for botnets, Asignal Networks reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at our discretion.
11. BINDING INDIVIDUAL ARBITRATION
Purpose. The term "Dispute" means any dispute, claim, or controversy between you and any of the Asignal Networks Entities regarding any Services or the Website, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this "BINDING INDIVIDUAL ARBITRATION" section (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced. If you have a Dispute with any Asignal Networks Entity or any of a Asignal Networks Entity's officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the "Notice of Dispute" clause below, you and the Asignal Networks Entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this section, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
EXCLUSIONS FROM ARBITRATION. YOU AND ASIGNAL NETWORKS ENTITIES AGREE THAT ANY CLAIM FILED BY YOU OR BY A ASIGNAL NETWORKS ENTITY IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 919 NORTH MARKET STREET, SUITE 950, WILMINGTON, NEW CASTLE, DELAWARE, 19801, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR EMAIL, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY ASIGNAL NETWORKS ENTITY THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH ANY ASIGNAL NETWORKS ENTITY, YOU MUST SEND WRITTEN NOTICE TO 919 NORTH MARKET STREET, SUITE 950, WILMINGTON, NEW CASTLE, DELAWARE, 19801, ATTN: LEGAL DEPARTMENT/ARBITRATION, ATTN: LEGAL DEPARTMENT: DISPUTE RESOLUTION, TO GIVE ASIGNAL NETWORKS ENTITY YOU HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If the Asignal Networks Entity you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you or the Asignal Networks Entity you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this section.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND ASIGNAL NETWORKS ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION IS NOT APPLICABLE TO THE EXTENT THIS WAIVER IS PROHIBITED BY LAW.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or the Asignal Networks Entity you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association ("AAA"), www.adr.org, or JAMS www.jamsadr.com. The terms of this section govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by the Asignal Networks Entity you have a Dispute with concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes ("Supplementary Procedures") shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA's Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the Asignal Networks Entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys' fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the Asignal Networks Entity you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. The award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or the Asignal Networks Entity you have a Dispute with may initiate arbitration in either Suffolk County, Massachusetts or the United States county in which you reside. In the event that you select the county of your United States residence, the Asignal Networks Entity you have a Dispute with may transfer the arbitration to Suffolk County, Massachusetts in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
Severability. If any clause within this section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire section will be unenforceable, and the Dispute will be decided by a court and you and the Asignal Networks Entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
Continuation. This section survives any termination of this Agreement or the provision of Services to you.
12. OTHER TERMS
All content included or available on this site, including site design, text, graphics, interfaces, and the selection and arrangements thereof is ©2018 ASIGNAL NETWORKS, INC., with all rights reserved, or is the property of Asignal Networks and/or third parties protected by intellectual property rights. Any use of materials on the Website, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Asignal Networks is strictly prohibited. Members agree that they will not use any robot, spider, or other automatic device, or manual process to monitor or copy our webpages or the content contained therein without prior written permission of an authorized officer of Asignal Networks.