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You should carefully read the following Service Agreement. Your purchase or use of Page Penguin, LLC doing business as Page Penguin hereinafter referred to as "Company" services implies that you have read, understood and accepted this Service Agreement (the “Agreement”).
Company grants you a non-exclusive limited-usage license (the “License”) to use the Company website and other services sold through our company in accordance with this Agreement (the “Services”). The Services may only be used for lawful purposes - any use of the Services which violates any applicable laws is strictly prohibited. It is your responsibility to be aware of the laws in both the jurisdiction of where our servers are located (Utah, United States of America) and your local jurisdiction. We reserve to the right to make the final decision on what constitutes lawful or unlawful purposes.
a) You may not run any website with adult-oriented content (sexual material or services) on our servers. If you are unsure as to what constitutes “adult” material please email hello@PagePenguin.com.
b) You agree not to submit, post, email, transmit, or otherwise make available content on your website that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or in a reasonable person's view, objectionable; (v) contains any information or content that is illegal; or (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships, including that it does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights, rights of publicity and privacy. Company reserves the right, but is not obligated, to reject and/or remove any content that Company believes, in its sole discretion, violate these provisions. Company does not permit copyright infringing activities and infringement of intellectual property rights on any website or as part of its Service, and Company will remove all content if properly notified that such content on another's intellectual property rights. Company reserves the right to remove content without prior notice.
c) Company may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if, in Company’s sole determination, you violate any part of this Agreement, including the following prohibited actions: (i) violate, or appear to violate, the rights and/or intellectual property rights of Company or any third party rights holder; (ii) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (iii) take any action that imposes, or may impose at Company’ sole discretion an unreasonable or disproportionately large load on Company’ infrastructure; (iv) upload invalid data, viruses, worms, or other software agents through the Service; (v) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity; (vi) interfere with the proper working of the Service; or, (vii) bypass the measures Company may use to prevent or restrict access to the Service.
3) PAYMENT. You agree to pay for the Services received from Company, in advance of the time period during which such Services are provided. You agree that until and unless you notify Company of your desire to cancel the Services, the Services will be billed to you on a recurring monthly basis.
4) CANCELLATION POLICY. You may cancel your account at any time. All cancellation requests must be submitted by the person listed as the main account contact. While there are no cancellation fees, we do not give pro- rated refunds. This means that on the date you cancel, your card will not be charged again from that date forward, nor will you receive a pro-rated refund. Upon any expiration or termination of this Agreement, the licenses and use rights granted hereunder will immediately terminate, and you shall either promptly return and provide to Company all confidential information related to the Services or destroy all such materials and provide certification thereof.
5) UPTIME GUARANTEE. Company guarantees an uptime of 99% for your website in any calendar month. Should we not reach this we will credit your account with 10% of your monthly fee, upon receipt of a refund request. THE REFUND CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIS UPTIME GUARANTEE.
6) OWNERSHIP. You may not claim intellectual or exclusive ownership to your website, print designs, or other materials provided by Company, modified or unmodified. The Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music, and all intellectual property rights related thereto, are the exclusive property of Company and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
7) TRANSFER OF DOMAIN NAME. When Company purchases a domain name for your website, the domain name is owned by Company. However, upon request we will transfer ownership of the domain name to the subscriber for a $15 fee. It will be necessary for the subscriber to have an account on a domain registrar, and we can help with this process. It will not be possible to transfer a domain name until at least 60 days after purchase, due to regulations for domain names.
8) IMAGERY, CLIPARTS AND FONTS. All Company templates and all imagery, content, text, forms, template language, clipart and fonts used in our templates (“Imagery”) are part of the license grant set forth in Section 1 and are an integral part of the Services. The License provided by this Agreement gives you the right to use images and fonts only as a part of the Services we provide for you. Any other type of usage or distribution is expressly prohibited. Company expressly reserves all other rights in such content. To the extent the Agreement expires or terminates, you may elect to purchase a license to the Imagery. Upon payment of the license fee specified by Company, Company will grant to you a perpetual, non-exclusive, non-sublicensable and non-assignable right to use and reproduce the Imagery solely for your use on your commercial website in the United States. To the extent you are interested in obtaining such a license, please notify Company upon termination or expiration of this Agreement. If you continue to use the Imagery notwithstanding the fact that the license terminated under Section 4 without obtaining an Imagery license, we reserve the right to exercise any and all rights available to us under law or equity. We may also elect to continue to assess a monthly fee up to the then going rate for your limited license in exchange for granting you a license to the Imagery as set forth in this Section 8.
9) UNAUTHORIZED USE. You may not place any of our template materials, modified or unmodified, on a diskette, CD, website or any other medium and offer them for redistribution or resale of any kind without prior written consent from Company.
10) ASSIGNABILITY. You may not sub-license, assign, or transfer the License provided by this Agreement to anyone else without prior written consent from Company.
11) INDEMNIFICATION. You agree to indemnify, defend, and hold harmless Company from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting indirectly from your use of the Services which damages either you, your clientele, Company, or any other party or parties without limitation or exception.
12) NO WARRANTY.
a) Company MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND FOR THE SERVICES. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY Company OR ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY. UNDER NO CIRCUMSTANCES SHALL Company BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM YOUR USE OF OR INABILITY TO USE THE SERVICES, OR FOR THIRD PARTIES' USE OF THE SERVICES TO ACCESS YOUR WEBSITE, OR TO ACCESS THE INTERNET OR ANY PART THEREOF, OR YOUR OR ANY THIRD PARTIES' RELIANCE ON OR USE OF INFORMATION, SERVICES, OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. IN ANY EVENT, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY LIABILITY RELATING TO OR ARISING OUT OF THE SERVICE OR THIS AGREEMENT, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT.
b) YOU UNDERSTAND THAT BY PLACING INFORMATION ON Company' SERVERS THAT SUCH INFORMATION BECOMES AVAILABLE TO ALL INTERNET USERS AND THAT Company HAS NO WAY OF LIMITING OR RESTRICTING ACCESS TO SUCH INFORMATION OR PROTECTING SUCH INFORMATION FROM COPYRIGHT INFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF Company' SERVERS, THE SERVICES AND THE INTERNET. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, THE SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH Company OR ON THE INTERNET GENERALLY.
C) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. Company IS NOT RESPONSIBLE FOR FILES AND DATA RESIDING ON YOUR ACCOUNT. YOU AGREE TO TAKE FULL RESPONSIBILITY FOR FILES AND DATA TRANSFERRED AND TO MAINTAIN ALL APPROPRIATE BACKUP OF FILES AND DATA STORED ON Company’ SERVERS.
d) YOU AGREE NOT TO INTERFERE WITH THE OPERATION OF THE SYSTEM. YOU FURTHER AGREE NOT TO INTERFERE WITH THE PROPER OPERATION OF OTHER SYSTEMS REACHABLE THROUGH THE INTERNET, INCLUDING ANY ATTEMPT AT UNAUTHORIZED ACCESS. YOU AGREE TO ADHERE TO SYSTEM POLICIES AS PUBLISHED BY Company, INCLUDING RESTRICTIONS ON SERVICES AVAILABLE WITH EACH SERVICE TYPE, RESTRICTIONS ON CERTAIN FEATURES, AND ALL OTHER POLICIES. Company MAY CHANGE ITS POLICIES AND RESTRICTIONS WITHOUT NOTICE. YOU AGREE TO ABIDE BY ANY AND ALL FUTURE POLICY DECISIONS PERTAINING TO THE SERVICES.
13) AGREEMENT ACKNOWLEDGEMENT. This Agreement supersedes any written, electronic, or oral communication you may have had with Company or any agent or representative thereof, and constitutes the complete and total agreement between the parties. Should any provision of this Agreement be determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable. By using the Services or placing or maintaining any data on Company' servers you are stating and acknowledging that you have read this Agreement and that you understand this Agreement and agree to be bound by it.
14) BUSINESS ASSOCIATE CONTRACT.
a) To the extent you are a “Covered Entity” (as such term is defined by the Health Insurance Portability and Accountability Act (“HIPAA”) and the regulations promulgated thereunder at 45 C.F.R. parts 160 and 164 (collectively, the “HIPAA Regulations”)), this Section 13 shall govern Company’ use of Personal Health Information (as defined by the HIPAA Regulations). Unless otherwise defined herein, all capitalized terms used in this Section 13 shall have the meanings ascribed to such terms in the Privacy Rule and HIPAA Regulations.
b) With respect to PHI, Company, as a Business Associate, hereby agrees as follows:
1. Company agrees to not use or disclose Protected Health Information, or PHI, other than as permitted or required by this Agreement or as Required By Law.
2. Company agrees to use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this Agreement.
3. Company agrees to report to you any use or disclosure of the PHI not provided for by this Agreement of which it becomes aware.
4. Company agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by Company on your behalf agrees to the same restrictions and conditions that apply through this Agreement to Company with respect to such information.
5. Company agrees to make internal practices, books, and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from, or created or received by Company on behalf of, you available to the Secretary, in a time and manner as designated by the Secretary, for purposes of the Secretary determining your compliance with the Privacy Rule.
6. Company agrees to document such disclosures of PHI and information related to such disclosures as would be required for you to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528.
7. Company agrees to provide to you or an Individual information collected in accordance with this Agreement, to permit you to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528.
c) Permitted Uses and Disclosures by Company
1. Except as otherwise limited in this Agreement, Company may use or disclose PHI to perform functions, activities, or services for, or on behalf of, you as specified in this Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by you or the minimum necessary policies and procedures applicable to you, as a Covered Entity.
2. Except as otherwise limited in this Agreement, Company may use PHI for the proper management and administration of Company or to carry out the legal responsibilities of Company.
3. Except as otherwise limited in this Agreement, Company may disclose PHI for the proper management and administration of Company, provided that disclosures are Required By Law, or Company obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies Company of any instances of which it is aware in which the confidentiality of the information has been breached.
4. Except as otherwise limited in this Agreement, Company may use PHI to provide Data Aggregation services to you as permitted by 45 CFR § 164.504(e)(2)(i)(B).
5. Company may use PHI to report violations of law to appropriate Federal and State authorities, consistent with 45 CFR § 164.502(j)(1).
d) Obligations of Covered Entity
1. You shall notify Company of any limitation(s) in your notice of privacy practices in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Company’ use or disclosure of PHI.
2. You shall notify Company of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect Company’ use or disclosure of PHI.
3. You shall notify Company of any restriction to the use or disclosure of PHI that you have agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Company’ use or disclosure of PHI.
e) Permissible Requests by Covered Entity
You shall not request Company to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by you provided that Company is authorized to use or disclose PHI for data aggregation or management and administrative activities of Company in accordance with the provisions of this Section 13.
f) Term. Section 13 shall terminate when all of the PHI provided by you to Company, if any, or created or received by Company on your behalf, if any, is destroyed or returned to you, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this Section 13.
g) Termination for Cause. Upon your knowledge of a material breach by Company, you shall either:
i) Provide an opportunity for Company to cure the breach or end the violation and terminate Company’ access to the PHI if Company does not cure the breach or end the violation within the time you specify;
ii) Immediately terminate Company’ access to the PHI if Company has breached a material term of this Section 13 and cure is not possible; or
iii) If neither termination nor cure are feasible, you shall report the violation to the Secretary.
h) Effect of Termination
i) Except as provided in paragraph (ii) below, upon termination of this Agreement, for any reason, Company shall return or destroy all PHI received from you, or created or received by Company on your behalf. This provision shall apply to PHI that is in the possession of subcontractors or agents of Company. Company shall retain no copies of the PHI.
ii) In the event that Company determines that returning or destroying the PHI is infeasible, Company shall provide to you notification of the condition that makes return or destruction infeasible. Upon notice by Company that the return or destruction of PHI is infeasible, Company shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Company maintains such PHI.
i) If You are a copyright owner or an agent thereof and believe that any content available on the Service infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Company’ Copyright Agent with the following information in writing (please see 17 U.S.C. § 512(c)(3) for further detail):
1) An electronic or physical signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2) Identification of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity, where it is located on the Service, and any other information reasonably sufficient to permit Company to locate and disable the material;
4) Information reasonably sufficient to permit Company to contact you, such as your address, telephone number, and, if available, e-mail address;
5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
1.The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
COMPANY: Page Penguin, LLC
ADDRESS: 106 Hicks St 2B, Brooklyn, NY 11201
Telephone: (646) 374-4319
1.UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS AND ATTORNEYS' FEES.
2.You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
3.Please note that this procedure is exclusively for notifying Company and its affiliates that your copyrighted material has been infringed. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
b) Counter Notice
1. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content, you may send a counter-notice containing the following information to the Copyright Agent designated above:
1. Your physical or electronic signature;
1. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
1. A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or misidentification of the content; and
2. Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the State of New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
1. If the Counter Notice is received by the Copyright Agent, Company may send a copy of the Counter Notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the Counter Notice, at Company’ sole discretion.
16) Confidential Information.
During the term of this Agreement, you may receive confidential information from Company related to your participation with the Service. Except as expressly authorized by this Agreement, you will use reasonable efforts to maintain the confidentiality of all such information and you will not disclose such information without the prior written consent of Company. In no event will you use less effort to maintain the confidentiality of such information than you ordinarily use with respect to Your own confidential information. The foregoing will not restrict you from disclosing confidential information of Company pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that if you are required to make such a disclosure, you give reasonable and timely notice to Company to contest such order or requirement. Examples of Company confidential information include without limitation, all software, technology, services, algorithms, search engines and search indices, programming, specifications, materials, guidelines and documentation relating to the Service. Confidential information does not include information that: (x) is or becomes generally known to the public through no fault of or breach of this Agreement by you; (y) is independently developed by you without use or reliance upon Company’ confidential information; or (z) you rightfully obtain from a third party without disclosure restrictions. You understand and agree that any violation or threatened violation of these provisions will cause irreparable injury to Company, entitling Company to obtain injunctive relief in addition to having the ability to terminate your use of the service and other remedies available at law.
17) Third-Party Websites or Services.
a) Regulatory References. A reference in this Agreement to a section in the Privacy Rule means the section as in effect or as amended.
b) Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as necessary for you, as a Covered Entity, to comply with the requirements of the Privacy Rule and HIPAA Regulations.
c) Survival. The respective rights and obligations of Company under Section 14(c) of this Agreement shall survive the termination of this Agreement.
d) Interpretation. Any ambiguity in this Agreement shall be resolved to permit you to comply with the Privacy Rule.
e) No Third-Party Beneficiaries. It is the explicit intention of the parties hereto, that no person or entity other than the parties hereto, and their permitted successors and assigns, shall be entitled to bring any action to enforce any provision of this Agreement, and the covenants, undertakings and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by the parties hereto or their respective successors and assigns as permitted hereunder.