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YoGem.com, Terms & Conditions Agreement

• 1. Term and Payment for Services
• 2. Use of Services
• 3. Enforcement
• 4. Intellectual Property Rights
• 5. Warranty; Warranty Disclaimer
• 6. Limitation and Exclusion of Liability

You must accept the terms of this Agreement in order to use the Services.

NOTWITHSTANDING, BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.

YoGem.com reserves the right to change or modify any of the terms and conditions contained in this Agreement, any Addendum and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Any changes or modification will be effective upon posting of the revisions on the YoGem.com Web site (the "Site"). Your continued use of Services following Yogem.com's posting of any changes or modifications will constitute your acceptance of such changes or modifications.

1. TERM AND PAYMENT FOR SERVICES

1.1. Term

This Agreement shall be for an "Initial Term" as chosen by you in the Order Form located on this Site at the time you register for the Services. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide YoGem.com with notice of termination thirty (30) days prior to the end of the Initial Term or the Renewal Term.

1.2. Termination Policy

If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) YoGem.com will not refund to you any fees paid in advance of such termination and (b) you shall be required to pay 100% of YoGem.com's standard monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement. Notwithstanding the foregoing, if you terminate your receipt of Shared Hosting Services prior to the end of the first thirty (30) days of the Initial Term, you are entitled to a refund of the fees you paid in advance for the monthly Services, not including any setup fees. Your termination request or notice must be submitted to YoGem.com in the manner described in Section 1.1. YoGem.com may terminate this Agreement at any time and for any reason by providing to you written notice thirty (30) days prior to the date of termination. If YoGem.com terminates this Agreement, YoGem.com will refund to you the pro-rata portion of prepaid fees attributable to Services (excluding setup fees) not yet rendered as of the termination date unless otherwise expressly provided in this Agreement. If termination was enforced to due violations that result in damages or fees assigned to YoGem.com on your behalf, no refunds shall apply and you will be held liable for such fees.

1.3 Default and Cure

In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.

1.4. Charges

You agree to pay for all charges attributable to your use of the Services at the then current YoGem.com prices, which shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on YoGem.com's net income.

1.5. Payment

All charges for Services must be paid in advance according to the then current prices applicable to the Services. Upon entering this Agreement, you must choose to pay either by direct charge to a credit or debit card. If you choose to pay by credit or debit card upon registering for the Services, you thereby authorize YoGem.com to charge your credit or debit card to pay for any charges that may apply to your account. You must notify YoGem.com of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit YoGem.com from charging your account. YoGem.com may also create periodic invoices for any applicable Supplemental Charges associated with your use of the Services. You agree to pay to YoGem.com the amount indicated in each invoice by the due date reflected on that invoice. If you fail to pay any fees and taxes by the applicable due date for credit card or invoice payments, late charges of the lesser of one and one-half per cent (1.5%) per month or the maximum allowable under applicable law but at no time less than $15 shall also become payable by you to Yogem.com. In addition, your failure to fully pay any fees and taxes within five (5) days after the applicable due date will be deemed a material breach of this Agreement, and YoGem.com may, in addition to any other remedy it may have: (i) suspend its performance of the Services and/or terminate this Agreement; and/or (ii) At the time of such nonpayment, Yogem.com may, delete any and all content from the Yogem.com Servers. Any such suspension or termination of the Services would not relieve you from paying past due fees plus interest.

1.6. Chargebacks

If you ever feel that YoGem.com incorrectly charged your credit card you must contact billing for a correction. If you do contact your credit card company and issue a chargeback then you will be responsible for the $50 chargeback fee. If you do not pay this fee then your account will be terminated.

2. USE OF SERVICES

2.1. Applicable Use Policy

The YoGem.com Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services. The Usage Policy is posted on YoGem.com's Web site (or such other location as YoGem.com may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. YoGem.com RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.

2.2. Material and Product Requirements

Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on YoGem.com's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Yogem.com. YoGem.com will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", YoGem.com has the option at any time to reject this material. YoGem.com will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Yogem.com. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not Yogem.com's responsibility to provide this knowledge or customer support outside of the Services agreed to by you and YoGem.com.

2.3. Bandwidth and Storage Usage

You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to pay the associated additional charges. Data stored in your user account on a Yogem.com Server is not owned by YoGem.com; therefore Data preservation is the ultimate responsibility of you, the client. YoGem.com is in no way responsible for the client?s data and or the backup of that data.

3. ENFORCEMENT

3.1. Investigation of Violations

YoGem.com may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. YoGem.com will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

3.2. Actions

YoGem.com reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, YoGem.com may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Yogem.com's systems, and/or (d) disabling or removing any hypertext links to third party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by YoGem.com which, in Yogem.com's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes YoGem.com to civil or criminal liability or public ridicule. It is Yogem.com's policy to terminate repeat infringers. YoGem.com's right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If YoGem.com takes corrective action due to such possible violation, YoGem.com shall not be obligated to refund to you any fees paid in advance of such corrective action.

3.3. Disclosure Rights

To comply with applicable laws and lawful governmental requests, to protect YoGem.com's systems and customers, or to ensure the integrity and operation of YoGem.com's business and systems, YoGem.com may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on YoGem.com's servers and systems. YoGem.com also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.

4. INTELLECTUAL PROPERTY RIGHTS

4.1. Your License Grant to YoGem.com

You hereby grant to YoGem.com a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to YoGem.com a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

4.2. YoGem.com Materials and Intellectual Property

All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by YoGem.com or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by YoGem.com to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of YoGem.com or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by YoGem.com during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.

4.3. Trademarks

You hereby grant to YoGem.com a limited right to use your trademarks, if any, for the limited purpose of permitting YoGem.com to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sub-license use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.

5. WARRANTY; WARRANTY DISCLAIMER

5.1. Customer and/or Third Party Acts

YoGem.com is not responsible in any manner for any non-confirming Services to the extent caused by you or your customers. In addition, YoGem.com is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond YoGem.com's reasonable control.

5.2. No Express or Implied Warranty

ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY YoGem.com UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT YoGem.com EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH YoGem.com's COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. YoGem.com DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YoGem.com DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.

5.3 Your Warranties and Representations to YoGem.com

You warrant, represent, and covenant to YoGem.com that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content and/or any software that you install or provide does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

6. LIMITATION AND EXCLUSION OF LIABILITY

6.1. Limitations

IN NO EVENT SHALL YoGem.com HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO YoGem.com , DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. YoGem.com SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF YoGem.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF YoGem.com TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO YoGem.com BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY YoGem.com UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE YoGem.com FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

6.2. Interruption of Service

You hereby acknowledge and agree that YoGem.com will not be liable for any temporary delay, outages or interruptions of the Services. Further, YoGem.com shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).

6.3. Maintenance

You hereby acknowledge and agree that YoGem.com reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. YoGem.com will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.