Legal Notices
Divinsa provides its services to you subject to the following Policies and Terms of Service, which may be updated periodically without notice to you. You can always review the most current version by clicking the “Legal” link on the home page of Divinsa’s web site. Please click the links below to review and become familiar with the different aspects of the Divinsa’s Policies and Terms of Service.
Online Backup Data Protection Services (Online Backup & Mirroring)
Copyright & Trademarks
All Web site materials, including, without limitation, the Divinsa logo, design, text, graphics, other files, and the selection and arrangement thereof are ALL RIGHTS RESERVED Copyright © Divinsa LLC, 2005. You may electronically copy and print to hard copy portions of this Web site for the sole purpose of using materials it contains for informational and noncommercial, personal use only. Any other use of the materials in this Web site – including any commercial use, reproduction for purposes other than described above, modification, distribution, republication, display, or performance, without the prior written permission of Divinsa LLC, is strictly prohibited.
Divinsa® is a registered trademark of Divinsa LLC. The Divinsa logo is a trademark of Divinsa LLC. Other product names, company names, marks, logos, and symbols referenced herein may be the trademarks or registered trademarks of their respective owners.
Data Protection Services Subscription Agreement (Online Backup & Mirroring)
DIVINSA LLC
NOTICE TO SUBSCRIBER: CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS GOVERNING USE OF DIVINSA’S AUTOMATED ONLINE BACKUP SERVICE. UTILIZATION OF THE SERVICE CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. Service Provided. Use of this Service (the “Service”) consists of the right of a Subscriber of the Service (“Subscriber”) and its designated users to electronically transmit and store computer data for archival and backup purposes, using either a private data communications network or the Internet, into one or more server computers maintained by Divinsa LLC (“Divinsa”), and to retrieve said data. The Service is made available by Divinsa to Subscriber during the period Subscriber maintains a paid subscription to the Service. Unless otherwise agreed, Subscriber’s right to use the Service or to designate users is not transferable and is subject to any limits established by Divinsa. Subscriber is responsible for and must provide all telephone, Internet, and other equipment and services necessary to access the Service, at Subscriber’s expense.
2. Limited License. Divinsa may provide certain software to Subscriber to facilitate use of the Service (the “Software”). Divinsa hereby grants Subscriber a limited license to use the Software solely in connection with utilization of the Service during the term of this Agreement, and for no other purpose. Upon termination of this Agreement for any reason, Subscriber shall immediately cease all use of the Software, and shall promptly uninstall and delete all copies thereof in Subscriber’s possession or under its control.
3. Term of Agreement. The term of this Agreement shall commence upon Divinsa’s approval of Subscriber’s application for Service, and shall continue on a month-to-month basis until terminated by a party as provided below.
4. Pricing and Payment. Subscriber shall pay all registration, setup, subscription, usage and other fees and charges incurred by Subscriber or Subscriber’s designated users, at the Pricing published by Divinsa on its website for the billing period in which those charges are incurred, together with all sales and other taxes applicable to such fees and charges. Subscriber shall make all payments by credit card and shall maintain a current authorization for Divinsa to debit Subscriber’s credit card account for all amounts payable under this Agreement.
5. Dishonor and Non-Payment. In the event that the financial institution issuing Subscriber’s credit card declines to honor any charge by Divinsa (including the reversal of payment of a prior charge based upon a dispute of such charge by the Subscriber), Divinsa may, at its sole discretion and without prior notice to the Subscriber: (a) suspend its performance under this Agreement and deny Subscriber’s and Subscriber’s designated users’ access to and use of the Service until Subscriber all payment issues have been resolved, or (b) terminate this Agreement including all further right of Subscriber and Subscriber’s designated users’ to access and the use of the Service. For situations where the Subscriber’s credit card issuing financial institution has been notified of a payment dispute, said Subscriber agrees that proof of Service usage by Subscriber constitutes proof of Subscriber’s authorization for Divinsa to submit payment requests to Subscriber’s credit card issuing financial institution with respect to such usage.
6. Pricing Changes. From time-to-time and at the sole discretion of Divinsa, Divinsa may change its Pricing with respect to the Service or any component thereof. The Subscriber shall be notified of such Pricing changes by electronic mail or via a posting on www.divinsa.com, and no Pricing increase shall be effective less than 30 days prior to such notification. In the event the Subscriber shall be unwilling to pay the increased Pricing, the Subscriber may terminate this agreement upon giving notice in writing to the Subscriber and ceasing to use the Service at the conclusion of the current billing period. Continued usage of the Service after the end of such billing period shall be deemed acceptance of the revised Pricing.
7. No Refunds for Service Interruptions. Due to the nature of the Internet and the technology utilized in connection with the Service, or to other matters beyond Divinsa’s control, Service interruptions may occur. No full, partial, or prorate refunds will be made as adjustment for any such Service interruption. Subscriber hereby acknowledges that where changes in the nature of the Service occur due to matters which are beyond the control of Divinsa, such changes do not constitute grounds for any full or partial refund of any fees previously paid.
8. Responsibility for Confidentiality of Subscriber’s Data. Divinsa shall take reasonable steps to protect the confidentiality of Subscriber’s data, including archive or backup copies of such data. Notwithstanding the foregoing, however, Subscriber shall be solely responsible for maintaining the confidentiality of Passwords utilized by Subscriber with respect to the Service, including restricting knowledge of Passwords to Subscriber’s designated users. Subscriber shall be solely responsible for all use of the Service accessed through Subscriber’s Password. DIVINSA NEITHER ASSUMES NOR ACCEPTS ANY RESPONSIBILITY OR OBLIGATION TO SUBSCRIBER, SUBSCRIBER’S DESIGNATED USERS, OR OTHER USERS OF THE SERVICE TO MONITOR, SUPERVISE OR OVERSEE THE USAGE OF THE SERVICE OR THE CONTENTS OF FILES STORED ON THE SERVICE. DIVINSA MAY CHARGE A FEE FOR PROVIDING SUBSCRIBER WITH CONFIRMATION OF A PASSWORD IN THE EVENT IT IS LOST OR FORGOTTEN. WITHOUT THE CORRECT PASSWORD, SUBSCRIBER’S DATA WILL REMAIN ENCRYPTED AND INACCESSIBLE.
9. Restrictions Upon Use of Service, Indemnification. Subscriber shall not use the Service for storage, possession or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law, including without limitation, stolen materials, obscene materials or child pornography. SUBSCRIBER’S BACKUP FILES MAINTAINED BY DIVINSA ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT SUBSCRIBER’S CONSENT, UPON PRESENTATION TO SUBSCRIBER OR DIVINSA OF A SEARCH WARRANT OR SUBPOENA. Subscriber agrees to indemnify and hold Divinsa harmless against any cost or liability (including attorney’s fees) arising out of use of the Service by Subscriber, it’s employees or agents for any unauthorized or illegal purpose, or arising out of the need to respond to a search warrant or subpoena with respect to data stored by Subscriber or any user having access to Subscriber’s account.
10. Loss of Subscriber’s Data. No bailment or similar obligation is created between Subscriber (and/or Subscriber’s designated users) and Divinsa with respect to Subscriber’s stored data. Divinsa strongly recommends that Subscriber maintain an alternative electronic backup file of all data stored using the Service. Subscriber should not utilize the Service as a substitute for primary electronic file maintenance. DIVINSA SHALL NOT BE RESPONSIBLE FOR THE LOSS OF SUBSCRIBER’S DATA STORED USING THE SERVICE, DUE TO ANY CAUSE BEYOND DIVINSA’S REASONABLE CONTROL. Divinsa may, but shall not be obligated to, make copies of all data files stored as part of the back up and recovery of servers utilized in connection with some of the Services. Subscriber shall have no right to access such backup files.
11. Disclaimer of Warranties. SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK. NEITHER DIVINSA NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. NOR DO DIVINSA OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Remedies. NEITHER DIVINSA, ITS EMPLOYEES, AGENTS, NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF USE OF THE SERVICE, INABILITY TO USE THE SERVICE, OR LOSS OF SUBSCRIBER’S DATA. IN NO EVENT WILL DIVINSA’S LIABILITY FOR ANY CLAIM BY SUBSCRIBER, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY SUBSCRIBER, IF ANY, FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM.
13. Notices. Subscriber shall provide Divinsa with its current street address and a current Internet email address designated for future notices and other communications pertaining to this Agreement. Subscriber shall promptly notify Divinsa of any changes in its street or designated email addresses. Any notice to Subscriber permitted or required by this Agreement may be given by email to the last email address designated by Subscriber.
14. Termination. Either party may terminate the Service to Subscriber without cause upon thirty (30) days prior written notice. Additionally, Divinsa may terminate this Agreement immediately upon any dishonor or non-payment, and Subscriber may terminate this Agreement in the event of increased Pricing, as provided above. Any termination notice on behalf of Subscriber must be submitted by one of Subscriber’s designated users, and for authentication purposes must contain such user’s name, the Subscriber’s name, the Subscriber’s designated email address, and the last four digits of the account number for the credit card then being used to pay charges billed to the Subscriber. As of the effective date of termination, the Subscriber’s access to any of Subscriber’s data stored by the Service will be permanently terminated, though Subscriber’s data may continue reside on Divinsa’s servers and physical backup media for a period of time thereafter, at Divinsa’s discretion. Termination shall not relieve Subscriber’s responsibility to pay all charges for Services incurred through the effective date of termination.
15. Assignment. Divinsa shall have the right to assign this agreement to any person, firm or corporation. Subscriber may assign this Agreement with written notice to Divinsa, including proper billing instructions for the new Subscriber. Such Subscriber assignment shall be effective upon Divinsa’s approval of the new entity’s credit card, financial statement or with prepayment of required service fees.
16. Events Beyond Divinsa’s Control. Divinsa shall not be deemed to be in breach of this Agreement, and its obligations hereunder shall be deemed suspended, if its performance is delayed or prevented, in whole or part, by any act of God, war, fire, natural disaster, accident, riot, strike, governmental action, shortage of materials or supplies, failure of any transportation or communication system, non-performance of vendor, or any other cause beyond its reasonable control.
17. Choice of Law. This agreement is, and shall be governed by and construed in accordance with the laws of the State of Washington applicable to agreements made and performed in Washington, excluding conflicts of law provisions.
18. Notice of Claim, Filing of Suit. Any claim arising under this Agreement shall be presented to the other party within a reasonable period of time, and in no event shall suit on such claim be commenced more than six (6) months after the event, act or omission giving rise to the claim. The venue of any action arising under this Agreement shall be the state or federal courts located in King County, Washington. In any legal action arising under this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs.
19. Invalidity. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect.
20. Non-Waiver. The failure of any party to insist upon strict performance of any of the terms and conditions of this Agreement, or to exercise any option or right herein conferred, in any one or more instances, shall not be construed to be a waiver or relinquishment of the right to insist upon future performance of such term or condition, which shall be and remain in full force and effect.
21. Entire Agreement, Modifications. These terms and conditions, together with the Pricing for the Service and any additional Operating Rules published by Divinsa from time to time, constitute the entire and only agreement (collectively, the “Agreement”) between Divinsa and Subscriber (including Subscriber’s designated users) with respect to the Service, and supersede all prior communications and agreements with regard to the subject matter hereof. Upon notice published on www.divinsa.com, Divinsa may prospectively modify its Operating Rules or Prices, and may discontinue or revise any or all other aspects of the Service, at its sole discretion and without advance notice. Additionally, on fifteen (15) days prior notice to Subscriber, which maybe given via email to Subscriber’s designated email address, Divinsa may modify these terms and conditions. Subscriber’s continued use of the Service after the effective date of such modifications shall constitute acceptance of such modified terms and conditions. No provision or condition in any purchase order, confirmation, letter or other communication from or on behalf of the Subscriber which is in any way inconsistent with, or purports to add to, the provisions of this Agreement shall have any legal effect. Neither the course of conduct between parties nor trade practice shall act to or modify the provisions of this Agreement.
E-Mail Terms of Use and Acceptable Use Policy
DIVINSA LLC
E-MAIL TERMS OF USE AND ACCEPTABLE USE POLICY
NOTICE TO SUBSCRIBER: CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS GOVERNING USE OF DIVINSA’S E-MAIL HOSTING SERVICE. UTILIZATION OF THE SERVICE CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. DESCRIPTION OF THE SERVICES
Divinsa agrees to provide you with a Web-based mailbox to send and receive electronic mail (“e-mail”), along with an address book for storing contact information. Divinsa may also choose to offer other services such as chat, forums, mailing lists, calendar, greeting card, Web hosting, online backups, or Web-based SMS.
2. LIMIT; STORAGE SPACE; OUTAGES
Other requested by you, Divinsa has set no fixed upper limit on the number of messages you may send or receive through its electronic mail service nor has it set a limit on the storage space associated with your electronic mail account.
Notwithstanding the foregoing, Divinsa retains the right, at Divinsa’ sole discretion, to restrict the volume of messages transmitted or received by you in order to maintain the quality of our electronic mail services to other customers and to protect our computer systems, or to impose limitations on the storage space associated with your electronic mail account.
Divinsa’s electronic mail service is subject to scheduled and unscheduled outages which will impact your ability to use the electronic mail service.
3. DELETION OF E-MAIL; TERMINATION OF SERVICE
Divinsa assumes no responsibility for the deletion of or failure to store, deliver, or deliver in a timely manner e-mail messages. In addition, if you transfer your domain name record to a third party in conjunction with a live Web site or for any other reason or allow your domain name registration to expire, you may no longer be able to use Divinsa’s electronic mail service and any e-mails or other content in your account may be permanently deleted. Divinsa will not refund fees, if any, you have paid for the electronic mail service, any e-mail-dependent services, upgrades or enhancements thereto, if you elect to terminate your e-mail service or transfer your domain name record to a third party.
4. MONITORING; RESTRICTION OF TRANSMISSIONS
Your right to use Divinsa’s electronic mail service is personal to you. You agree not to resell the electronic mail service, without the prior express written consent of Divinsa. Divinsa will not monitor, edit or disclose the contents of your private communications with third parties unless required to do so by law or in the good faith belief that such action is necessary to: (1) conform to the law or comply with legal process served on Divinsa; (2) protect and defend the rights or property of Divinsa or its customers; or (3) act under exigent circumstances to protect the personal safety of our customers or the public.
You acknowledge and agree that certain technical processing of e-mail messages and their content may be required to: (1) send and receive messages; (2) conform to connecting networks’ technical requirements; (3) conform to the limitations of electronic mail service; or (4) conform to other similar requirements.
You agree that Divinsa shall under no circumstances be held liable on account of any action it takes, in good faith, to restrict transmission of material that it or any user of electronic mail service considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
5. USER CONDUCT
You acknowledge and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Divinsa, are entirely responsible for all Content that you upload, post or otherwise transmit via the Service. Divinsa does not endorse or control the Content transmitted or posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable.
You agree not to use the Services to engage in or assist or encourage others to engage in illegal, harassing or abusive conduct, including, without limitation, to:
a. upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
b. harm minors in any way;
c. impersonate any person or entity, including, but not limited to, a Divinsa official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
e. upload, post or otherwise transmit any Content that you do not have a right to transmit 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);
f. upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
g. upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except in those areas of the Service that are designated for such purpose;
h. upload, post or otherwise transmit any material that 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;
i. disrupt the normal flow of dialogue, cause a screen to scroll faster than other users of the Services are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
j. interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
k. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, the CAN SPAM Act and any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
l. “stalk” or otherwise harass another;
m. collect or store personal data about other users without their consent; or
n. promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating “Crush” sites.
o. Violate or encourage others to violate the terms of this Acceptable Use Policy.
You acknowledge and agree that Divinsa may terminate your electronic mail service if your conduct is found to be unlawful, inconsistent with, or in violation of, this Agreement or the Acceptable Use Policy.
You acknowledge that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in either sponsor advertisements, or Internet-distributed, commercially produced information presented to you through use of the Services (“Content”) by Divinsa, Divinsa’s advertisers, or other Divinsa users may be protected by copyrights, trademarks, patents or other proprietary rights and laws; therefore, you are only permitted to use this protected Content as expressly authorized by the owner of the Content (“Owner”), the Services or the Advertiser. You may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by the Owner, the Services or the Advertiser.
Privacy Policy
Divinsa believes privacy and security are major concerns for our customers. Therefore, we have adopted the policy below, which discloses the privacy and security practices for our site.
What information we might gather from you What we will do with that information How you can control the information you choose to submit on our site How you can correct and update your Member information, opt out of communications, or delete your information from the database Our commitment to privacy
We at Divinsa believe that strong electronic privacy is crucial for the ongoing success of our company as a provider of information technology services. However, we do need to understand user behavior in order to serve you better. To achieve this goal, we need to understand what differentiates you from other unique users. We collect information about our members in two ways: at registration and with cookies.
Your data files backed up on our servers and physical media
If you subscribe to our automated online backup service, your computer(s) will be transferring your data files to our computer server(s). We highly encourage you to use the encryption capabilities of our software and keep your encryption password secret. Your data files will be co-resident with other companies’ data files on our servers and on physical backup media which we archive as part of our services. Your data will only remain on our computer servers as long as you are a paying subscriber and choose for your data files to remain accessible to you online. However, once you cease to be a subscriber, your data files will still be co-resident with other companies data files on archived physical backup media.
Information we may ask you to provide at registration
Divinsa gathers information about our users that allow us to offer services and easily accessible online content in a manner that provides personal privacy protection. When you register for a Divinsa service, we collect personal information including your name, address, e-mail address, and credit card information in order for you to subscribe to our services. It is up to you to decide whether you wish to subscribe to our services by providing the required information.
The Divinsa site may make chat rooms, forums, message boards, and/or news groups available. Please be aware that any information that you disclose in these areas becomes public information, so you should exercise caution in disclosing personal information. Divinsa will not disclose your personal information and passwords to other visitors in any of the public forums.
We may also request information about your likes, dislikes, purchasing habits, and online activities from time to time. This information helps Divinsa deliver content and activities that are customized and relevant to your preferences. This information may be made available to our corporate sponsors in varying degrees of complexity, but only if you have given your permission for this to occur.
Along with all of our registered users, you will receive periodic electronic-mail messages covering new product announcements, company news and promotions. You may at any time cancel your registration with Divinsa.
Information we may implicitly collect
Use of Cookies
Cookies are small bits of information that a Web site transfers to your computer’s hard drive for record-keeping purposes. Cookies make Web surfing easier by saving your registration, passwords, and preferences: they allow you to be recognized when you return to the site. The use of cookies is an industry-wide practice and you’ll find them at most major Web sites.
By “looking” for a cookie, our server can determine whether you have already registered as a user of our Site. As a result, if you are a Member, you may see a customized front page, for example, and may not need to re-register each time you log on. Cookies also help us to serve you better by improving the Site. They allow us to track your interests and add content that is more relevant to you.
You may get cookies from our advertisers. Divinsa does not control these cookies and they are not subject to the Divinsa cookie policy. The use of advertising cookies sent by third-party servers is standard in the Internet industry.
Most Web browsers are usually set to initially accept cookies. If you prefer, you can set your browser to refuse cookies, or to alert you when cookies are being sent. However, the Site may not function properly if you do not accept cookies. Acceptance of a Divinsa registration obligates you to accept our cookies.
Collecting IP addresses
Divinsa collects IP addresses for the purposes of system administration and to report aggregate information to our advertisers. An IP address is a number automatically assigned to your computer whenever you are surfing the Web. Web servers automatically identify your computer by its IP address.
Collecting interests
In general, Divinsa does not collect Site Member information simply based on your interactions with our Site.
Sharing of information
Divinsa will never willfully disclose individually identifiable information about you to any third party without first receiving your permission. We will use your individually identifiable information only within our Site or provide you with services. It will also be shared with Divinsa partners that provide some of the personalized content on our Site.
Opt-out features
Divinsa believes users of the Site should control the communications directed to them. Every time we collect name and address information about you, you can tell us if you do not want to receive
communications from us such as e-mail newsletters announcing new features communications from third-party companies that offer a product or service we think would be of value to you. Correcting, Updating, Deleting, or Deactivating information
To correct, update, delete, or deactivate your personally identifiable Member information please send and e-mail to support@divinsa.com.
Web Site Hosting Services Agreement
DIVINSA LLC
NOTICE TO SUBSCRIBER: CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS GOVERNING USE OF DIVINSA’S WEB SITE HOSTING SERVICE. UTILIZATION OF THE SERVICE CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.
This Web site Hosting Services Agreement (the “Agreement”) is by and between you the “Subscriber” of the Service, and Divinsa, Inc. (“Divinsa”), and sets forth the terms and conditions of your use of Divinsa’s Web Site Hosting Service (the “Service”). You acknowledge that you have read, understood, and agree to be bound by all terms and conditions of this Agreement, as well as any additional rules or policies that are or may be published by Divinsa from time to time for its services, at https://www.divinsa.com. This Agreement, as well as any additional rules and policies, together with all modifications thereto, constitute the complete and exclusive agreement between you and Divinsa concerning your use of this Service, and supersede and govern all prior proposals, agreements, or other communications. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND THE TERMS OF OTHER DIVINSA AGREEMENTS, THIS AGREEMENT SHALL GOVERN. Unless explicitly stated otherwise, any new features, updates, upgrades or versions that augment or enhance the current Service shall be subject to this Agreement. Please note that other Divinsa services, outside of the Service, are governed by other Services Agreement and may be governed by other terms and conditions.
1. The Service
The Service provides the ability to publish a World Wide Web site (a “User Web Site”). You further agree and acknowledge that Divinsa allows only one User Hosting Service per domain name.
Your right to use the Service is personal to you. If you transfer your domain name record to a third party registrar or registrant, or allow your domain name registration to expire, you may no longer be able to use the Service. In addition, we may, in our sole discretion, choose not to transfer the Service to another customer or to another domain name residing at Divinsa.
When you sign up for the Service, you may receive an email or instructions from Divinsa advising you to configure your domain name to an IP address for your account. Once you configure your domain name to such IP address and until you publish your Web site, your domain name will resolve to a Web page of Divinsa’s choosing, or no Web page at all. Divinsa’s Web page’s may be modified at any time by Divinsa without prior notice to you and may include such things as, without limitation, links to additional products and services offered by Divinsa and third parties. If, for any reason, you do not wish to have your domain name resolve to a Web page of Divinsa’s choosing, you will need to either publish your own Web site or change the IP address associated with your domain name.
2. Payment Terms; Renewal of Service
2.1 Fees
As consideration for the Service, you agree to pay Divinsa, upon submission of your Service application or renewal application, the then-current fees set forth in the Divinsa price schedule for the Service when such fees are due. All fees are non-refundable. Divinsa reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion.
2.2 Data Storage and Transfer Fees
All hosting plans are subject to storage and transfer limitations. You are responsible for all charges related to stored data or transfers. In the event that you do not pay any applicable fees, Divinsa reserves the right to suspend or disable your account until such fees are paid.
2.3 Upgrades
You will have the ability to upgrade the Service at any time during the term of your Service. Such upgrade will take effect immediately. For any upgrade in package level, the credit or debit card that you provided in connection with your initial registration for the Service will be charged a pro-rata amount for the higher-level Service based on the number of days remaining in the term. Downgrades in Service may not be available and will be supplied solely at Divinsa’s discretion.
2.4 Billing and Renewal
Your service application or renewal application will not be processed unless we receive actual payment of the service fee. By supplying your credit or debit card for the payment of the service fee, you authorize Divinsa to automatically charge your credit or debit card for charges that apply to your account. Your credit card will be charged in advance for the following term’s service (currently, one month or one year, depending upon the term selected by you when you signed up for the Service). Your subscription will continue to automatically renew for like terms, unless terminated by Divinsa for failure to pay service fees or any other reason, or until you cancel the Service in Account Manager or by contacting Customer Support and confirming the cancellation.
If the credit or debit card on file with us has expired, is otherwise invalid or otherwise cannot be processed for any reason, we will attempt to notify you of this fact by email and give you an opportunity to provide us with a valid credit card. If no such information is provided prior to the expiration date of the Service, the Service may not be renewed and all information contained within your User Web Site may be deleted permanently. Divinsa accepts no liability for deleted information or Content.
2.5 Cancellation and Termination
If you cancel the Service before the end of the term, you will have access to the Service for the remainder of the term for which you have prepaid. When your Service expires or is terminated, or your domain name expires, your User Web Site will cease resolving on the Internet, you will no longer have access to the Service, and all information and Content contained therein may be deleted. Divinsa accepts no liability for such deleted information or Content.
3. User Web Site Content
You understand that you are solely and fully responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (“Content”), whether publicly posted or privately transmitted using the Service or a User Web Site. Divinsa does not pre-screen Content, but Divinsa and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is made available to others using the Service or on a User Web Site. Divinsa neither endorses the Content of your User Web Site nor assumes responsibility for such Content. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
The following is a non-exclusive list of activities prohibited under the terms of this Agreement:
a. the uploading, posting or otherwise transmitting of any Content on a User Web Site that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, racially, ethnically or otherwise objectionable, or violates privacy, publicity or other personal rights of others;
b. sending unsolicited bulk and/or commercial messages over the Internet to a large number of recipients (known as “spamming”), or maintaining an open SMTP relay. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates the use of the Service, Divinsa’s equipment or any domain name registration or electronic mail address serviced by Divinsa;
c. forgery of any headers or other manipulation of identifiers in order to disguise the origin of any message sent in connection to a User Web Site;
d. using the Service to harm minors in any way, including to advertise, transmit, store, post, display, or otherwise make available child pornography. Divinsa is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Service;
e. the uploading, posting or other transmittal of any Content that violates, infringes or misappropriates the intellectual property rights of others, including patents, trademarks, service marks, trade secrets, copyrights or other proprietary rights of any party;
f. the uploading, posting or other transmittal of any Content that you do not have a right to transmit under any law or under contractual, fiduciary or personal relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
g. using the Service to create, upload, post or transmit any viruses, worms, Trojan horses, or for pinging, flooding, mailbombing or denial of service attacks or any other malicious computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
h. attacking or attempting to gain unauthorized access to the data, computers, accounts, systems or networks of others, or attempting to penetrate security measures of Divinsa or other entities’ systems (“hacking”), or eengaging in any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, probe, or other information gathering activity);
i. installation of ‘auto-responders’, ‘cancel-bots’ or similar automated or manual routines that generate excessive amounts of net traffic, or disrupt net newsgroups or email use by others.
j. engaging in activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment;
k. violating any local, state, national or international laws;
l. engaging in or promoting gambling;
m. displaying or promoting any type(s) of intoxicant, alcoholic beverage, cigarettes or drug, where prohibited by local, state, national or international law;
n. “stalking” or otherwise harassing another;
o. collecting or storing personal data about others without their consent;
p. advocating, promoting, or providing assistance in carrying out violence or physical harm against any persons, nations, groups, entities or animals, including providing instructions on how to assemble explosive devices or other weapons, describing or displaying a weapon, parts of weapons or manuals for assembling any weapon, or promoting products or services that involve a significant risk of death or injury to any persons, or damage to business or other entities or property;
q. exporting software or technical information, including encryption software, in violation of U.S. or international export control laws;
r. the use of your User Web Sites as storage for remote loading or as a door or signpost to another home page;
s. the impersonation of any person or entity, including, but not limited to, a Divinsa official, forum leader, guide or host, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
t. removing, modifying or hiding any of the advertising banners inserted into your User Web Sites;
u. any resale or any exploitation for any commercial purposes of the Service by any and all means unless approved in advance in writing by Divinsa; and
v. advertising, transmitting, offering for sale or otherwise making available any software, program, product, service or information that is designed to violate terms (a) through (u) above, or that Divinsa determines, in its sole discretion, is inappropriate for sale through the Service provided by Divinsa.
4. Copyrights
Divinsa respects the intellectual property rights of others and we ask our customers to do the same. Please see our copyright policy at http://www.divinsa.net/html/legal.html.
5. Proprietary Rights; License Grant
You acknowledge and agree that the Service and any necessary software and digital content provide by Divinsa and used in connection with the Service (the “Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisements is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Divinsa or its advertisers, you agree not to duplicate, modify, reproduce, rent, lease, loan, sell, give, sublicense, assign, distribute, otherwise transfer, create derivative works based on, reverse engineer, reverse assemble, decompile or otherwise attempt to discover any source code for the Service or the Software, in whole or in part, or to allow or assist any others to do so. Subject to the use restrictions of this Section 5, Divinsa grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of its Software for the sole purpose of accessing and using the Service. You agree not to access the Service by any means other than through the interface that is provided by Divinsa for use in accessing the Service.
6. Your Representations; Communications
By applying to use the Service, or by asking us to maintain or renew your use of the Service, you hereby represent and warrant to us that (a) any statements made by you in connection with your application to use or renew the Service are complete and accurate; (b) to your knowledge, your use of the Service will not infringe upon or otherwise violate the rights of any third party; (c) you are not using the Service for an unlawful purpose; (d) you will not knowingly use the Service in violation of this Agreement or any applicable laws or regulations; and (e) you are at least 18 years of age and under no legal disabilities that would prevent you from entering into this Agreement (otherwise, a parent or guardian must accept this Agreement and make the proper payment). You agree and acknowledge that it is your responsibility to determine whether your User Web Site infringes or violates someone else’s rights. You understand and agree that the Service may include certain communications from Divinsa, such as renewal and billing notices, service announcements and administrative messages, and that these communications are considered part of the Service and you will not be able to opt out of receiving them. On occasion, Divinsa may have a need to communicate with you via email about these issues. It is your responsibility to check email sent to the email address associated with the Service, which is the address that you provide to us in your Service application.
7. Changes to this Agreement or to Additional Rules or Policies
Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the Service provided under this Agreement at any time (including, without limitation, changing your Service provider). Any such revision or change will be binding and effective 30 days after posting of the revised Agreement or change to the Service on our web site, or upon transmission to you at the e-mail address or postal address (by United States mail) provided by you in connection with the Service. You also acknowledge and agree that it is your responsibility to check the website located at www.divinsa.com periodically for modifications to this Agreement and that your continued use of the Service shall constitute your acceptance of this Agreement as well as additional rules or policies that are or may be published by Divinsa, each with the new modifications. If you do not agree to any of such changes, you may request that your Service be cancelled. You acknowledge and agree that such cancellation will be your exclusive remedy and our sole liability if you do not wish to abide by any changes to this Agreement or any additional rules or policies that are or may be published by Divinsa.
No employee, contractor, agent or representative of Divinsa or its subsidiaries is authorized to alter or amend the terms and conditions of this Agreement except by means of a written document signed by you and an authorized officer of Divinsa.
8. Information and Its Disclosure
You hereby acknowledge and agree that, in connection with your use of the Service, you are required to provide certain information (such as the name, postal address, email address, voice telephone number, and facsimile number of the contact person for the User Web Site). You further agree and acknowledge that it is your responsibility to update this information promptly as needed to keep it current, complete and accurate. All other information which we may request from you in connection with the Service is voluntary; however, not providing such information may prevent you from obtaining information about services other than the Service. You acknowledge and agree that willfully providing inaccurate or unreliable information or willfully failing to update information promptly will constitute a material breach of this Agreement that will be sufficient basis for cancellation of the Service.
In the event that in applying to use the Service you are providing information about a third party, you hereby represent and warrant that you have (a) provided notice to that third party of the disclosure and use of that party’s information as set forth in this Agreement, and (b) that you have obtained that third party’s express consent to the disclosure and use of that party’s information as set forth in this Agreement.
Pursuant to Divinsa’s Privacy Policy, Divinsa may make available information about your use of the Service that you provide, or that we otherwise maintain, to such public or private third parties as applicable laws require or permit, including, but not limited to, making publicly available, or directly available, some or all of such information: (i) for inspection by law enforcement officials (including in the case of potential criminal activity); (ii) to respond to criminal and civil subpoenas and court orders that reasonably appear to be valid; (ii) for targeted marketing, (iii) in connection with the sale of all or certain of our assets, (iv) to enforce or apply the terms of this Agreement; and (v) to protect the rights, property, or safety of Divinsa, our users, or others. You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by you in connection with your use of the Service (including any updates to such information), whether during or after the term of your use of the Service. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of information provided by you by Divinsa.
Divinsa will take reasonable precautions to protect the information it obtains from you from loss, misuse, unauthorized use, access, or disclosure of that information. Divinsa will have no liability to you or any third party to the extent such reasonable precautions are taken.
Communications with Divinsa are not private and may be published either in their entirety or in edited form at any time, at the sole discretion of Divinsa. Use of the Service could involve listing your participation in relevant directories, and you expressly grant permission for such listings.
Additional details on privacy and Divinsa’s use of customer information can be found in Divinsa’s Privacy Notice located at http://www.divinsa.net/html/legal.html. To the extent that there are any differences between the terms of this Agreement and the Privacy Notice, the terms of this Agreement shall govern.
9. Ownership of Data
You acknowledge and agree that Divinsa owns all database, compilation, collective and similar rights, title and interest worldwide in our proprietary information databases, and all information and derivative works generated from those databases. You hereby grant to Divinsa a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up right and license to use in our business, however it evolves, including the rights to copy, distribute, display, perform, transmit, prepare derivative works from or otherwise use without restriction the following information: (a) the creation date of a User Web Site, (b) the expiration date of a User Web Site, (c) the name, postal address, e-mail address, voice telephone number, and facsimile number of the contact person for the User Web Site, (d) any remarks concerning the User Web Site that appear in Divinsa’s database, and (e) any other information Divinsa generates or obtains in connection with its provision of the Service. Divinsa does not have any ownership interest in your specific personal information or other information other than our rights in our database, as set forth in this Section 10.
10. Security
You are responsible for maintaining the security of your account and User Web Site, and you are fully responsible for all activities that occur under the account and on the User Web Site, and for any other actions taken in connection with a registered domain name, including those users to whom you give e-mail accounts associated with your domain names (“E-mail Users”). You agree to immediately notify Divinsa of any unauthorized uses of the account or any other breaches of security. Divinsa cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Divinsa be liable, in any way, for any acts or omissions, of you or any E-Mail User, including any damages of any kind incurred as a result of such acts or omissions.
11. Agents
You agree that, if you are using the Service for someone else, you represent and warrant that you have: (a) provided notice to that third party of your intent to purchase the Service; (b) obtained that third party’s express consent to purchase the Service on its behalf; (c) obtained consent to post the content included on your User Web Site; and (d) the authority to bind that person as a principal to all terms and conditions provided herein.
12. System Performance Degradation
Divinsa and its third party partners depend upon computer systems that are responsive to the demands of their users, and that provide timely information to Divinsa’s customer service team. Occasionally, these computer systems are subjected to exceptional volumes of incoming data and/or processes that result in significant degradation of their system processing and response time. Regardless of the reason, in those instances when there is system performance degradation as the result of an extremely large volume of incoming data and/or processes, Divinsa reserves the right, in its sole discretion, to filter or block data and/or processes originating from or traveling to the identified sources of the high volume traffic. Divinsa will selectively restore service after system performance returns to normal limits, provided that such restoration does not result in an adverse impact on the system. Divinsa further reserves the right to permanently filter or block repeated sources of high volumes of electronic traffic. Finally, if your server is involved in an attack on any computer system, either with or without your knowledge or complicity, your account will be shut down while the matter is investigated and resolved in Divinsa’s absolute discretion.
13. Limitation of Liability
YOU AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE CREATION AND PUBLICATION OF USER WEB SITES, IS ENTIRELY AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, DIVINSA OR ITS SUPPLIERS WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (a) TERMINATION, SUSPENSION, LOSS, OR MODIFICATION OF THE SERVICE OR A USER WEB SITE, (b) USE OF OR INABILITY TO USE THE SERVICE OR A USER WEB SITE, (c) INTERRUPTION OF BUSINESS, (d) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO DIVINSA’S SITE OR TO A USER WEB SITE, (e) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (f) THE DISBURSEMENT OR NON-DISBURSEMENT OF FUNDS BY PAYMENT PROCESSORS; (g) ANY TRANSACTIONS CONDUCTED ON A USER WEB SITE, INCLUDING FRAUDULENT TRANSACTIONS; (h) ANY LOSS INCURRED IN CONNECTION WITH THE SERVICE OR A USER WEB SITE, INCLUDING IN CONNECTION WITH E-COMMERCE TRANSACTIONS; (i) EVENTS BEYOND DIVINSA’S (AND ITS SUBCONTRACTORS’) REASONABLE CONTROL, (j) THE PROCESSING OF YOUR SERVICE APPLICATION; (k) APPLICATION OF ANY APPLICABLE LAW, REGULATION OR DIVINSA POLICY; (l) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (m) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (n) ANY OTHER MATTER RELATING TO THE SERVICE. NEITHER DIVINSA, ITS EMPLOYEES, AGENTS, NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF USE OF THE SERVICE, INABILITY TO USE THE SERVICE, OR LOSS OF YOUR DATA. IN NO EVENT WILL DIVINSA’S LIABILITY FOR ANY CLAIM BY YOU, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY YOU, IF ANY, FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM.
14. Indemnification of Divinsa
You agree to defend, indemnify and hold harmless Divinsa, its suppliers, subsidiaries, affiliates, officers, directors, agents, partners, employees and attorneys for any loss, damages or costs, including reasonable attorneys’ fees, resulting from any claims, actions, or demands arising out of or related to: (i) your Content; (ii) your breach or violation of any term, condition, representation or warranty of this Agreement; (iii) your use of or connection to the Service; (iv) your use of or connection to a User Web Site; or (v) your violation of any rights of others.
15. Disclaimer of Warranties
THE SERVICE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. WE AND OUR SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR GUARANTEES OF SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ORAL OR WRITTEN ADVICE OR INFORMATION GIVEN BY DIVINSA, ITS EMPLOYEES, LICENSEES OR THE LIKE WILL CREATE A WARRANTY OR GUARANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
16. Suspension, Cancellation, Transfer or Modification
You agree and acknowledge that Divinsa will, in its sole discretion, determine whether or not your User Web Site is consistent with (i) the terms and conditions of this Agreement, or (ii) applicable Divinsa operating rules and policies. You also agree and acknowledge that Divinsa may suspend, remove, delete or modify any User Web Site or any portion thereof that Divinsa deems inconsistent with the terms and conditions of this Agreement or unacceptable for any other reason and may suspend, cancel or modify your access to and use of the Service for any violation of those terms and conditions, in Divinsa’s sole discretion, and without prior notice to you. Such termination of the Service may result in the deactivation or deletion of your User Web Site, and the forfeiture, and deletion of all related files contained in your account. You further agree and acknowledge that Divinsa may, in its sole discretion, charge a reinstatement fee to customers who have had their Service suspended or canceled as a result of a violation of the terms and conditions of this Agreement, or otherwise. If you re-register for services after Divinsa’s cancellation of your account without Divinsa’s written consent, Divinsa will cancel your account and all dues and fees paid to date regardless of whether service has been rendered will be forfeited. Additionally, any amounts due will be immediately payable.
Divinsa shall also have the right in its sole discretion to suspend, cancel, or otherwise modify your use of the Service or User Web Site at such time as Divinsa receives what reasonably appears to be an authentic notification from a court or tribunal of competent jurisdiction. Finally, Divinsa reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Divinsa shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
17. Assignment
Divinsa shall have the right to assign this agreement to any person, firm or corporation. Subscriber may assign this Agreement with written notice to Divinsa, including proper billing instructions for the new subscriber. Such subscriber assignment shall be effective upon Divinsa’s approval of the new entity’s credit card, financial statement or with prepayment of required service fees.
18. Events Beyond Divinsa’s Control
Divinsa shall not be deemed to be in breach of this Agreement, and its obligations hereunder shall be deemed suspended, if its performance is delayed or prevented, in whole or part, by any act of God, war, fire, natural disaster, accident, riot, strike, governmental action, shortage of materials or supplies, failure of any transportation or communication system, non-performance of vendor, or any other cause beyond its reasonable control.
19. Choice of Law
This agreement is, and shall be governed by and construed in accordance with the laws of the State of Washington applicable to agreements made and performed in Washington, excluding conflicts of law provisions.
20. Notice of Claim, Filing of Suit
Any claim arising under this Agreement shall be presented to the other party within a reasonable period of time, and in no event shall suit on such claim be commenced more than six (6) months after the event, act or omission giving rise to the claim. The venue of any action arising under this Agreement shall be the state or federal courts located in King County, Washington. In any legal action arising under this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs.
21. Invalidity
If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect.
22. Non-Waiver
The failure of any party to insist upon strict performance of any of the terms and conditions of this Agreement, or to exercise any option or right herein conferred, in any one or more instances, shall not be construed to be a waiver or relinquishment of the right to insist upon future performance of such term or condition, which shall be and remain in full force and effect.
23. Entire Agreement, Modifications
These terms and conditions, together with the Pricing for the Service and any additional Operating Rules published by Divinsa from time to time, constitute the entire and only agreement (collectively, the “Agreement”) between Divinsa and you (including your designated users) with respect to the Service, and supersede all prior communications and agreements with regard to the subject matter hereof. Upon notice published on www.divinsa.com, Divinsa may prospectively modify its Operating Rules or Prices, and may discontinue or revise any or all other aspects of the Service, at its sole discretion and without advance notice. Additionally, on fifteen (15) days prior notice to you, which maybe given via email to your designated email address, Divinsa may modify these terms and conditions. Your continued use of the Service after the effective date of such modifications shall constitute acceptance of such modified terms and conditions. No provision or condition in any purchase order, confirmation, letter or other communication from or on behalf of you which is in any way inconsistent with, or purports to add to, the provisions of this Agreement shall have any legal effect. Neither the course of conduct between parties nor trade practice shall act to or modify the provisions of this Agreement.