Last modified: February 25, 2020
The use of services provided by http://servers.jomica.co (hereafter referred to as "Jomica") is subject to the following Terms and Conditions.
Party Definitions and Introductory Terms - The operative parties referred to in this Agreement are defined as follows:
Jomica is the publisher and operator of http://servers.jomica.co (the "Site") whereby Jomica makes certain web hosting services (the "Services") available. For purposes of this Agreement, when "Site" or "Services" are referenced, such reference includes all hardware, software, and network resources necessary to provide said Site and/or Service.
When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Jomica. Additionally, when the terms "the Site" or "Site" are used, these terms refer to any site published by Us, unless a site is specifically exempt from this policy.
PLEASE READ THE FOLLOWING HOSTING SERVICES TERMS AND CONDITIONS. BY SUBSCRIBING TO JOMICA HOSTING'S SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (the "AGREEMENT"). IF YOU AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK "I ACCEPT," (OR SIMILAR SYNTAX) OR CHECK THE APPROPRIATE BOX MANIFESTING YOUR INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE ACCOUNT SET-UP PROCESS. YOU SHOULD PRINT-OUT OR OTHERWISE SAVE A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE "BACK" BUTTON ON YOUR BROWSER AND DO NOT SUBSCRIBE TO JOMICA HOSTING'S SERVICES. JOMICA AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT IS PERMITTED BY THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (E-SIGN ACT) AND SIMILAR FEDERAL AND STATE LAWS. ANY USE OF JOMICA HOSTING'S SERVICES SHALL CONSTITUTE AN ACT OF ACCEPTANCE OF THE CURRENT HOSTING SERVICES TERMS AND CONDITIONS.
1.1 After initial registration, You will be able to select from the list of available Services the service plan(s) to which You wish to subscribe. All subscriptions to Services are subject to formal acceptance by Jomica. Your subscription to the Services will be deemed accepted by Jomica when Jomica delivers a confirmation of the subscription to You. Jomica reserves the right to refuse to provide You with any Service for any reason. Notwithstanding Our Uptime Guarantee found in Section 17 of this Agreement, Jomica also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional Services at any time, provided that You agree to pay the then-current fees for such additional Services. All additional Services shall be considered "Services" hereunder. All Services provided are subject to availability and to all of the terms and conditions of this Agreement.
This Agreement contains the complete and entire terms and conditions that apply to Your use of Jomica Hosting's Services (as defined below). Jomica may modify the terms of this Agreement, including the Fees (as defined below) at any time.
2.1 From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
2.2 We agree that if We change anything in this Agreement, We will change the "last modified date" at the top of this Agreement. You agree to periodically re-visit this web page, and to use the "refresh" button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the "last modified" date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the "last modified" date has changed, then You can be certain that something in the Agreement has been changed.
2.3 Should You wish to terminate this Agreement due to any revisions made by Us, You must do so in writing via the cancellation form within thirty (30) days of the "last modified" date described above. Your continued use of the Services after the effective date of any such notice constitutes Your acceptance of such changes.
2.4 Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
3.1 The Initial Term shall begin upon confirmation of Your order or commencement of the Services to You and receipt of lawful funds. The term's length is chosen by You and shall be indicated when You order Our Services. This Agreement may not be terminated by You during the Initial Term (and any renewals thereof) except in the event of a breach by Jomica. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.
3.2 Jomica may also terminate this Agreement in its sole discretion at any time for any reason or no reason. ("Termination without Cause"). In such case, Jomica will provide You with thirty (30) days written notice before the discontinuation of Services.
3.3 If Jomica cancels this Agreement pursuant to any of the terms outlined in this Agreement, with the exception of Termination without Cause pursuant to paragraph 3.2, Jomica shall not refund to You any fees paid or prepaid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that Jomica terminates the Agreement for cause, all prepaid hosting fees will be forfeited and are not refundable. The termination of this Agreement does not relieve You of Your obligation to pay any Fees accrued or payable to Jomica prior to the effective date of termination of this Agreement.
3.4 In addition to Jomica Hosting's right to terminate this Agreement provided elsewhere in this Agreement, Jomica may terminate this Agreement effective immediately if, based on Jomica Hosting's sole judgment, it determines that You or any of Your end-users: (a) have infringed or violated any intellectual property right or privacy or publicity right of a third party, (b) have not complied with any applicable law, statute or regulation, or (d) have uploaded, published or disseminated any images, text, graphics, code or video which Jomica considers illegal or high risk, in its discretion. Nothing contained in this Agreement is intended to, or shall, impose any duty or obligation upon Jomica to monitor or review Your Content or the content of Your end-users at any time. You remain solely responsible for Your Content, and any liability generated therefrom.
3.5 The termination of this Agreement will terminate Your access to the Services and Your license to the Host Materials (as defined in Section 5.2 of this Agreement). Jomica shall not be liable to You or to any third party for termination of the Services permitted under this agreement. Upon termination of this Agreement, Jomica reserves the right to maintain copies of Your data files and records for archival purposes, but does not undertake any obligation to do so. Jomica reserves the right to impose an early termination charge for all Services terminated prior to the last day of the billing cycle.
3.6 If either party cancels or terminates this Agreement for any reason, You shall be solely responsible for making all necessary arrangements for securing a replacement host and moving all electronic data, graphics, images, video or text to the new service provider. Upon termination of this Agreement, provisions that by their nature would be expected to survive termination shall survive and remain in full force and effect in accordance with their terms.
4.1 When You register for the Services, You will choose a login (email) and password. You may use the Services or modify Your data and content only through such user ID and password. You are entirely responsible for maintaining the confidentiality of Your user ID and password and for any and all activities which occur using those credentials. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of security known to You.
4.2 You must provide Us with a primary email address that is checked regularly and frequently. All notices and communications between Us will be sent to the email address You provide, and You are therefore required to keep this address current or notify Us if Your address changes. You should notify Us if any of Your contact and/or billing information changes so that We may update Your account.
4.3 Providing false or inaccurate contact information of any kind may result in the Termination for Cause of Your account per Section 3 of this Agreement.
4.4 You are responsible for all activity transpiring under Your account. You are responsible for any actions performed under Your account, including but not limited to, damage caused to Your server, Jomica Hosting's site and/or equipment, and any other server.
All Services provided by Jomica may only be used for lawful purposes.
5.1 As between You and Jomica, Jomica acknowledges that it claims no proprietary rights in or to the content (including without limitation, text, software, music, sound, audio visual works, motion pictures, photographs, animation, video and graphics) supplied by You for use on Your server ("Your Content"). You hereby grant to Jomica a non-exclusive, worldwide and royalty-free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Your Content, solely for the benefit of You and to enable Jomica to perform its obligations hereunder.
5.2 In connection with performance of the Services and at the sole discretion of Jomica, Jomica may (but is not obligated to) provide You with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Jomica or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to You, and other know-how, methodologies, equipment, and processes used by Jomica to provide You with the Services ("Host Materials"). Subject to the terms and conditions of this Agreement, Jomica hereby grants You a limited, revocable, non-transferable, non-exclusive license to use the Host Materials solely in connection with the Services. This license terminates when this Agreement terminates. As between You and Jomica, You acknowledge and agree that Jomica owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any use of the Host Materials after termination of this Agreement is not licensed and strictly prohibited. You agree that You will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express written permission to do so from Jomica.
5.3 This Agreement does not constitute a license to use Jomica Hosting's trade names, service marks or any other trade insignia. Any use of any of Jomica Hosting's trade names, service marks or any other trade insignia is strictly prohibited, absent Jomica Hosting's prior written consent.
5.4 If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, or if We are required to file an ICANN complaint against You in order to bring about the transfer of an offending URL to Us from You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages, or in order to seek injunctive relief from You, or in order to file and prosecute an ICANN complaint.
5.5 You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
6.1 Payment for Services is due in advance of the time period for which such payment covers. Services are billed on an automatic and recurring basis unless and until you follow Jomica Hosting's cancellation procedure set forth in this Agreement.
6.2 Unless separately negotiated by You and Us, and confirmed by separate written agreement, the initial and recurring Fees for the Services selected by You shall be as provided in the initial on-line order form. All set-up fees and special programming fees are non-refundable. Fees for Services are payable in advance. Failure to make payment of Fees for Services when due may result in the suspension or termination of Services.
6.3 At the time of registration, You must select a payment method. Jomica reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. If You do not pay all Fees when due, Your account will be deemed past due. For any past due Fees, Jomica will charge You interest at one and one-half percent (1.5%) or the highest rate allowed by applicable law, whichever is lower, per month of the unpaid amount, until paid.
6.4 You agree to pay any and all taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. Jomica is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. If Jomica should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, Joomica will invoice You for the difference between payment received and the Fees due.
6.5 You also agree to pay all attorney and collection fees arising from Jomica Hosting's efforts to collect any past due Fees. If you cancel any Service prior to the expiration of the pre-paid Fees, You understand and agree that Jomica will not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees.
6.6 Coupons and Discount Codes – From time to time, Jomica may offer coupons or other discount codes which may be used when signing up for hosting with Us. Coupons and discount codes are for first-time customers of Jomica and must be used at the time of Your initial purchase with Us – they may not be applied after Your service with Us has already been initiated. Unless expressly provided, such coupons and discount codes may not be used toward upgrades to Your account. Any account We deem to be attempting unauthorized coupon or discount code use may be subject to Termination for Cause.
7.1 You agree that Your use of Jomica Hosting's Services is at Your own risk, and that Jomica is not liable for any data loss in connection with its Services. You are solely responsible for creating backups of Your Content. If, during Our own routine maintenance, We do create a backup of Your Content which You later request Us to restore to Your account, We cannot guarantee that we will be able to do so, or that Your Content will be unharmed as a result of the initial data loss or the subsequent restore procedure. To that end, We highly recommend that You establish Your own routine backup procedure and that You periodically test restoring files from Your backup media to ensure that You are making viable backups.
7.2 Should you wish for Jomica to provide you with routine backup service, in addition to the Services provided under this Agreement please contact Us. We offer many different backup solutions as an add-on service to Our regular Services, and all such services are provided through a separate, written agreement.
8.1 Jomica does not impose hard set limits on each account's system resources. We do not actively disable accounts until they greatly exceed an acceptable level of usage. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc. Jomica will advise You of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.
8.2 Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from the Site and/or Materials. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage Our Services and Site or any communications on it. If You do not adhere to this provision of this Agreement, in addition to monetary damages and other remedies available to Jomica, You hereby agree to pay liquidated damages of $5000.00 plus any and all fees associated with recovery of these damages, including attorneys' fees and costs.
8.3 Any violation of the security to the Site and/or Services is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers used to provide the Site, Services, and/or Materials (the "Servers") is strictly prohibited. You agree not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware and software, compromising the Servers, or for any other unauthorized use commonly known as "hacking." In addition, You are prohibited from the following:
8.6 FAIR USE POLICY We provide specific Services to our Clients and define normal, fair, and reasonable use in terms of our Jomica Virtual Private Servers as use that is consistent throughout any given billing period. We expect regular usage patterns from individual component machines and the client solution as a whole. Should we at our sole discretion determine a Client is not using this Service as defined under this Fair Use Policy, we may take actions to mitigate negative impact to Service delivery systems including but not limited to the following:
The amount You pay for hosting will never increase during a specific term or time period for which you have signed up for Our Services. We reserve the right to change prices listed on servers.jomica.co at any time, without notice, and the right to modify the amount of resources given to plans at any time. Additionally, if we terminate this agreement without cause pursuant to paragraph 3.2 of the Agreement, You understand that if We agree to provide Services to You in the future, the amount You paid under any prior term or time period is not determinative of the amount You pay should We provide Services to You again. It is Your responsibility to check Our website for plan or price changes should You wish to take advantage of plan or price changes which may have occurred. Jomica does not automatically update Your plan. All upgrades or downgrades will be performed at Your request and may include modification fees or require reinitiating service with Us.
You agree to defend, indemnify, and hold Jomica and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from (a) any breach of Your covenants under this Agreement; (b) Your use of the Services; (c) any defamatory, libelous or illegal material contained within Your Content or Your information and data; (d) any claim or contention that Your Content or Your information and data infringes any third party's patent, copyright or other intellectual property rights or violates any third party's rights of privacy or publicity; (e) any third party's access or use of Your Content or Your information and data; In the event of a claim under this section, Jomica shall be permitted to select legal counsel to provide a defense to such claim. Jomica reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from You, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Jomica, which shall not be unreasonably withheld.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS, WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. JOMICA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. JOMICA MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES JOMICA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ANY STATEMENTS MADE REGARDING SUCH MATTERS IN PROMOTIONAL MATERIALS SHALL BE CONSIDERED ADVERTISING REFERENCES, AND NOT WARRANTIES. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
JOMICA MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO YOU THAT ARE NOT PART OF THE SERVICES ("THIRD-PARTY SERVICES"). JOMICA HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE THIRD-PARTY.
JOMICA MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM JOMICA OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON JOMICA HOSTING'S WEBSITE.
UNLESS OTHERWISE AGREED TO IN WRITING, JOMICA DOES NOT MAKE A BACK-UP OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS.
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEB-SITE/SERVER AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL JOMICA BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB-SITE/SERVER AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB-SITE/SERVER AND/OR BUSINESS.
THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL JOMICA, OUR AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON THE SERVICES ("AFFILIATES"), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF JOMICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL AGGREGATE AND MAXIMUM LIABILITY OF JOMICA AND THE AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS YOU HAVE PAID TO JOMICA DURING THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.
13.1 Jurisdiction, Venue, and Choice of Law. This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of the State of Missouri, excluding its conflict of law provisions. The parties hereby submit to the personal jurisdiction of the state and federal courts of St Louis, Missouri in the event litigation permitted under this Agreement is initiated. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in St Louis, Missouri.
The parties agree that this choice of venue, jurisdiction, and forum as set out in the following parts of this Agreement is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in jurisdiction other than that specified in this Section.
All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
13.2 Arbitration. If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party shall submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker's compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in St Louis, Missouri and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator's fees. Each party shall bear its own attorneys' fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall be willing to execute an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
13.3 Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by You.
13.4 Severability. If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
13.5 No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
13.6 Complete Agreement. This Agreement (including all other policies incorporated herein) constitutes the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
13.7 Relationship Between the Parties. Jomica is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
13.8 Non-Solicitation. Beginning upon commencement of the Services to You and continuing for a period of two (2) years after the termination of this Agreement or after any other cancellation or termination of Your account or Services with Us, You agree not to directly or indirectly, solicit, hire, contract, or otherwise employ any Jomica employee who was an employee during the term of this Agreement (including the Initial Term and any successive terms), to work for You or any other firm, person or business, of whatever character, corporate or otherwise.
13.9 Headings. Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
13.10 Force Majeure. Jomica shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay Jomica Hosting's performance.
13.11 Export. You understand and acknowledge that the software elements of the Host Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that You will abide by such laws and regulations.
13.12 Complaints – California Residents: The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: http://www.dca.ca.gov/consumers/complaints/consumer.shtml.
13.13 Government Rights. The software elements of the Host Materials have been developed at private expense and are "commercial computer software" or "restricted computer software" within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
13.14 Notices Electronic Communications. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided by You and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of the parties may communicate with the other by electronic means as described in this Agreement. Each of the parties agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communication, is legally sufficient to verify the sender's identity and the communication's authenticity; (ii) An electronic communication sent by You containing Your user identification establishes You as its originator and has the same effect as a document with Your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.