Last updated: February 27, 2015.
THIS AGREEMENT GOVERNS YOUR USE OF THE SITES (AS DEFINED BELOW). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE SITES.
datacenterHawk, LLC, its affiliates, subsidiaries and successors or assigns (collectively "datacenterHawk," or "We") reserves the right to update or modify this Agreement at any time and from time to time. When we make changes to this Agreement, we will revise the "last updated" date at the top of this Agreement. We encourage you to periodically review this Agreement. Your continued use of the Sites after any changes or revisions to this Agreement, regardless of whether you have reviewed the updated version, shall indicate your agreement to be bound by the terms of this Agreement. You acknowledge that datacenterHawk shall have the right to terminate your access to the Sites or Service for any violations of this Agreement.
Your Use & Conduct Personal, Non-Commercial Use. The Sites are made available for your personal, non-commercial use (except for your internal business) only. Except as provided by specific terms governing a specific Service, product, or information, you may not modify, copy, scrape, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any of the information, software, products, or Services obtained from the Sites. Furthermore, you represent and warrant that you are not a datacenterHawk competitor, nor are you using the Services for or on behalf of a datacenterHawk competitor.
No Unlawful or Prohibited Use. You agree that you will not use the Sites or the information, products, or Services available from them for, or to further, any unlawful purpose. Additionally, you will NOT: (A) upload, post, email, transmit, or otherwise make available any content that: (i) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable or harmful to another party; (ii) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (iii) infringes any patent, trademark, trade secret, copyright, or other intellectual property right of another party; (iv) is unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” website links, or any other form of content for the purpose of solicitation; (v) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (vi) consists of forged or manipulated information that disguises the true origin of any content you provide; or (vii) impersonates another person or entity, including, but not limited to, a datacenterHawk employee, forum leader, guide or host, or falsely states or otherwise misrepresents Your affiliation with a person or entity; (B) collect or store personal data about other users in connection with any prohibited conduct and activities; (C) use the Sites in any manner that could damage, disable, overburden, or impair any server, or network(s) connections; disobey any requirements, procedures, policies, or regulations of networks connected to the Sites; or interfere with any other party's use and enjoyment of the Sites; (D) attempt to gain unauthorized access to any Site content, other accounts, computer systems, or networks connected to any server through hacking, password mining, scraping, or by any other means to obtain any materials or information not intentionally made available on the Sites; (E) intentionally or unintentionally violate any applicable local, state, national, or international law, and any regulations having the force of law; (F) provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; or (G) use automated queries (including screen and database scraping, spiders, robots, crawlers and any other automated activity with the purpose of obtaining information from the Services) as they are strictly prohibited on the Services, unless you have received express written permission from datacenterHawk. As a limited exception, publicly available search engines and similar Internet navigation tools ("Search Engines") may query the Services and provide an index with links to the Services' Web pages, only to the extent such unlicensed "fair use" is allowed by applicable copyright law. Search Engines are not permitted to query or search information protected by a security verification system ("captcha") which limits access to human users.
Registration and User Name. By accessing the Services, you are not automatically a datacenterHawk Member; you are a “Visitor.” In order to become a datacenterHawk member (“Member”), you are required to complete a registration process. You certify, represent and warrant that the information you provide therein is true, accurate, complete, current, and that it belongs to you. You shall keep your information complete and up-to-date at all times. Failure to maintain your registration information may cause your access to the Services to be interrupted, suspended, or terminated. You are responsible for monitoring your account, changing your password periodically and notifying datacenterHawk immediately of any unauthorized use or breach of security of your password. In order to access certain Services as a Member, you must log on with a unique user name or email address. Please note that your status as a datacenterHawk Member does not entitle you to additional, paid Services that datacenterHawk offers. In order to obtain such Services, you must participate in the Rewards program and/or subscribe to such Services under a separate Master Subscription Agreement located on the Site that includes fees, terms and additional conditions, restrictions and limitations.
Member Information. Your Member registration information and information you provide regarding datacenters is automatically entered into datacenterHawk’s proprietary database (the “Database”). Please note that as a Member, you may contribute to and access the Database subject to the terms under the following paragraph; however, datacenterHawk retains all proprietary and intellectual property rights to the Database, and you do not retain any ownership rights in the Database as a result of any information you provide. Likewise, information contributed to the Database may be shared with other Members and with third parties, in datacenterHawk’s discretion.
User Submissions. Certain Sites enable users to submit content, email, or other information that will be made available to other users of the Sites (e.g., a forum or blog site) or directly to datacenterHawk. You understand and agree that datacenterHawk: (a) is NOT responsible for the content of user submissions, (b) has no obligation to remove any user-submitted content, and (c) has sole discretion to determine whether any user submitted content violates this Agreement and to take action or inaction based on that determination. If you submit content or information to a Sites or Service that makes your content available to other users, you represent and agree that: (i) your content in not prohibited by this Agreement; (ii) you are solely responsible for the form, content, and accuracy of any material you submit to a Sites; (iii) you are granting datacenterHawk a royalty-free, perpetual, irrevocable, non-exclusive license (including a waiver of any moral rights) under your intellectual property rights to use, reproduce, modify, adapt, translate, publish, transfer, create derivative works of, publicly display, publicly perform sell and redistribute your content, feedback, know-how, ideas, techniques and elements of submissions (in whole or in part) worldwide, and to incorporate such content, feedback, know-how, ideas, techniques and elements of submissions in other works in any form, media, or technology now known or later developed, for the full term of any rights that may exist in such content; and (iv) datacenterHawk is not obligated to exercise the rights you granted above. For the avoidance of doubt, any ideas, concepts, know-how, or techniques contained in any communication or material you send to datacenterHawk via email or through the Sites for any purpose whatsoever, will be considered non-confidential and non-proprietary.
Rewards Program. The Services allow may you to earn points or credits (“Rewards”) by performing certain actions. Rewards are not real money, do not have monetary value, and may never be redeemed for official currency, legal tender, or other items of monetary value from outside of the Services. While we may use terms like “buy”, “earn”, “ spend” or “sell” in reference to Rewards, we do so only for convenience and such terms in no way indicate that Rewards have monetary value or act as legal tender or official currency. You acknowledge that Rewards are not legal tender or official currency and are not redeemable for any sum of legal tender or official currency from us at any time. We make no guarantee as to the nature, quality or value of the features of the Services.
Rewards obtained via the Services are provided to you under a limited, personal, revocable, non-transferable, non-sublicensable license to use within the Services. Rewards may not be transferred (except as specifically provided below) or resold in any manner, including, without limitation, by means of any direct sale or auction service. You have no property interest, right or title in or to any such Rewards appearing or originating in the Services, or any other attributes associated with use of the Services.
We have no liability for hacking or loss of your Rewards; provided that we will use commercially reasonable efforts to restore Rewards in the event of any hacking or loss. We have no obligation to, and will not, reimburse you for any Rewards or any goods or services obtained via Rewards that are forfeited due to your violation of this Agreement. We reserve the right, without prior notification, to limit the quantity of Rewards and/or to refuse to provide you with any Rewards. Price, exchangeability, and availability of Rewards are determined by us in our sole discretion and are subject to change without notice. You agree that we have the absolute right to manage, distribute, regulate, control, modify, cancel, restrict, terminate and/or eliminate Rewards as we see fit in our sole discretion, and that we will have no liability for exercising such right. You agree that under no circumstances are we liable to you for any damages or claims that may arise from the loss or use of your Rewards regardless of the circumstances. You absolve us of any responsibility to maintain or update your Rewards balance. However, if there is a loss of Rewards in your account due to technical or operational problems with the Services, we may replenish the lost Rewards once the loss has been verified. Without limiting any of the foregoing, our maximum liability or responsibility to you is to replenish the Rewards lost.
You may redeem Rewards for datacenterHawk data, content or as otherwise set forth on the Services. datacenterHawk will, in our sole discretion, determine and communicate the availability and exchange rate for any Rewards, which may be modified at any time. All redemptions are subject to this Agreement and all limitations and requirements stated via the Services. All redemptions of Rewards are final. Once your Rewards have been redeemed, they will be subtracted from your Rewards balance and will not be refunded or returned, except in our sole discretion. datacenterHawk may also issue Rewards at no charge to users, at its discretion.
datacenterHawk may subtract Rewards from your account if it determines, in its sole discretion, that you did not properly “earn” the Rewards, including if datacenterHawk data you previously submitted is outdated or has been superseded by other datacenterHawk data submission.
Intellectual Property Rights in the Sites. You acknowledge that the Sites and various elements contained therein are protected by copyrights, trademarks, trade secrets, patents, or other proprietary rights, and that these worldwide rights are valid and protected in all forms, media, and technologies existing now and hereinafter developed. As between you and datacenterHawk, you also acknowledge and agree that the Content is and shall remain the property of datacenterHawk. You agree to comply with all intellectual property laws and you shall not encumber any interest in, or assert any rights to, the Content. You may not modify, publish, reproduce, transmit, redistribute, participate in the sale or transfer of, or create derivative works based on any Content, in whole or in part.
Trademarks. datacenterHawk, the datacenterHawk logos, and other marks are trademarks and service marks of datacenterHawk (the "datacenterHawk Trademarks") or of third parties. Nothing on the Sites should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of datacenterHawk Trademarks or third party marks displayed on the Sites, without prior written permission in each instance. All goodwill generated from the use of the datacenterHawk Trademarks will inure to our benefit.
Digital Millennium Copyright Act (DMCA) Copyright Infringement Claims. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to the datacenterHawk Designated Agent, by providing the following information:
(i) Identification of the copyrighted work that you claim has been infringed;
(ii) Identification of the material that you claim is infringing and needs to be removed, including a description of where it is located on the Services so that the copyright agent can locate it;
(iii) Your address, telephone number, and, if available, e-mail address, so that the copyright agent may contact you about your complaint; and
(iv) A signed statement that the above information is accurate; that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law; and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner's behalf in this situation.
Notices of copyright infringement claims should be sent as follows:
INQUIRIES NOT COMPLIANT WITH THE PROCEDURE OUTLINED MAY NOT RECEIVE A RESPONSE.
Translations. Where datacenterHawk has provided a translation of the English-language version of a datacenterHawk Site, this Agreement, or other Content, You agree that: (a) the translations are only for Your convenience; (b) the English-language version governs Your use of the Content provided by datacenterHawk; and (c) the English-language version shall take precedence in the event of a conflict between the English-language version and the translated version (except as prohibited by local law).
Third-Party Content and Links: Certain Sites may display content provided by third parties, links to third-party web pages, or both, including advertisements and solicitations to purchase their products or services. As consideration for your convenience in making this third-party content available or accessible to you, you acknowledge that datacenterHawk is not responsible for the third-party content. You also agree that datacenterHawk IS NOT responsible or liable for any losses or damages you experience with any third-party content you chose to rely upon or advertisements you respond to, and that you must contact the third party directly for any remedies that may be available to you.
SECURITY OF THE SITES. ACTUAL OR ATTEMPTED UNAUTHORIZED USE OF THE SITES MAY RESULT IN CRIMINAL AND/OR CIVIL PROSECUTION. WE RESERVE THE RIGHT TO VIEW, MONITOR, AND RECORD ACTIVITY ON THE SITES WITHOUT NOTICE OR PERMISSION FROM YOU. ANY INFORMATION OBTAINED BY MONITORING, REVIEWING, OR RECORDING IS SUBJECT TO REVIEW BY LAW ENFORCEMENT ORGANIZATIONS IN CONNECTION WITH INVESTIGATION OR PROSECUTION OF POSSIBLE ILLEGAL ACTIVITY ON THE SITES. WE WILL ALSO COMPLY WITH ALL COURT ORDERS AS WELL AS ALL LAW ENFORCEMENT AND REGULATORY INQUIRIES INVOLVING REQUESTS FOR SUCH INFORMATION.
DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE SITES, THE CONTENT, AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NONE OF DATACENTERHAWK, ITS AFFILIATES, SUBSIDIARIES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE "DATACENTERHAWK PARTIES") GUARANTEES THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, SUITABILITY OR USEFULNESS OF ANY PORTION OF THE SITES, THE CONTENT, OR THE SERVICES. NONE OF THE DATACENTERHAWK PARTIES WARRANT THAT THE SITES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SITES, ITS SERVER OR ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITES AND THE ACCURACY, TIMELINESS OR COMPLETENESS OF THE CONTENT OR SERVICES IS ASSUMED SOLELY BY YOU. NONE OF THE DATACENTERHAWK PARTIES MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY AND ALL, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITES, THE CONTENT, AND THE SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITES IS TO STOP USING THE SITES. Additionally, datacenterHawk makes no claim that any of the content or software available from the Sites can be lawfully viewed or downloaded outside of the United States. Access to portions of the Sites may not be legal by certain persons or in certain countries. If you access a/the Site(s) from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and from jurisdiction to jurisdiction.
No Responsibility for Connectivity. You agree that you are responsible for the means you use to access the Sites and all costs associated therewith. You understand that we are not responsible for the performance of your hardware, software, the Internet, your Internet service provider and other third parties involved in connecting you to the Sites.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL ANY OF THE DATACENTERHAWK PARTIES BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SITES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SITES. IN NO EVENT SHALL ANY OF THE DATACENTERHAWK PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE SITES, THE CONTENT, THE SERVICES, OR THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS DATACENTERHAWK'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Indemnification. You agree to defend, indemnify and hold the datacenterHawk Parties harmless from and against any and all claims, losses, liabilities, and expenses (including attorneys’ fees) arising from your use of the Sites or breach of any of the terms of this Agreement.
Electronic Communications and Contracting. The Sites may contain additional agreements and disclosures in electronic form. By assenting to this Agreement, you agree that a printed version of this Agreement and other agreements entered into by you on the Sites in electronic form shall be admissible in judicial or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Miscellaneous. In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect. The sections of this Agreement entitled limitation of liability, indemnification, miscellaneous shall survive the termination of this Agreement. The paragraph headings herein are provided only for reference and shall have no effect on the construction or interpretation of this Agreement. You expressly absolve and release the datacenterHawk Parties from any claim of harm resulting from a cause beyond their control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, terrorist activities or governmental restrictions. You may not assign this Agreement. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement. This Agreement and any other agreements between the parties entered into through the Sites shall be governed by and construed in accordance with the laws of the State of Delaware and shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods, the Brussels or Lugano Conventions, the UCITA, or the Rome or Rome 1 Conventions. Except for proceedings commenced by us to protect our intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder shall be resolved exclusively by state or federal courts located in the State of Delaware. This Agreement contains the entire agreement of the parties concerning the Sites and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter. You shall comply with all laws, rules and regulations, which are now or hereinafter promulgated by any government authority or agency, which govern or apply to the operation and use of the Sites. Without limiting the generality of the foregoing, you expressly agree to comply with such restrictions and not to export or re-export any of the Content or Services to countries or persons prohibited under the export control laws of the United States. You are prohibited from any use of the Sites that would constitute an illegal offense, give rise to liability or otherwise violate any applicable local, state, national or international law or regulation. All rights not expressly granted herein are reserved by us. Thank you for your cooperation. We hope you find the Sites helpful and convenient to use! Questions or comments regarding the Sites, including any reports of non-functioning links, should sent to us via email at info@datacenterHawk.com or via U.S. mail to 7616 Lyndon B Johnson Fwy, Suite 720, Dallas, Texas 75251. We try to answer every email in a timely manner but are not always able to do so.