- Acceptance of Terms
This is a legal agreement ("Agreement") between you, the user, together with any company or other business entity Member are representing, if any (collectively, the "Member") and eSitesBuilder.com ("eSitesBuilder.com"). This Agreement governs the access and use of all products and services for which Member registers and which are provided by or through any web site or co-branded web site owned or controlled by eSitesBuilder.com or any successor web sites (collectively, the "Service"). IF MEMBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PURCHASE, USE OR ACCESS THE SERVICE.
The Service is offered to Member conditioned upon Member's acceptance without modification of this Agreement. Member acknowledges that, from time to time, it may be necessary for eSitesBuilder.com to update or revise certain provisions of the Agreement. By signing up for any eSitesBuilder.com Service and accepting this Agreement, Member agrees that eSitesBuilder.com may change the terms of the Agreement in its sole discretion without specific notice to Member. If Member does not agree to the changes proposed by eSitesBuilder.com, or to any terms in this Agreement, Member's sole and exclusive remedy is to cancel Member's eSitesBuilder.com Service ("Member's Account"). Notwithstanding the foregoing, eSitesBuilder.com reserves the right to cancel, suspend or refuse access to the Service to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Agreement.
- General Use of the Service
Member shall not use the Service, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. Member agrees that Member will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other Web site or product, transfer, or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Service other than for use as contemplated in any Service, including but not limited to the creation or operation of Member created Web sites, (collectively, "Member Site") in accordance with this Agreement. This means, among other activities, that Member agrees not to engage in the practices of "screen scraping", "database scraping", or any other activity with the purpose of obtaining lists of users or other information. Member agrees that Member will not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party's use and enjoyment of the Service. Member may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service. Except with the written permission of eSitesBuilder.com, Member agrees that Member will not access or attempt to access password protected, secure or non-public areas of the Service. If Member attempts to access prohibited areas of the Service, Member may be subject to prosecution.
According to all conditions of this Agreement, eSitesBuilder.com gives limited, not exclusive, right of use (no property right) of a design template (Template). The User has the right to make any changes to the Template. The User has no right to use the Template to create more than one website.
According to all conditions of this Agreement, eSitesBuilder.com gives limited, not exclusive right of use (no the property right) of a website without hosting (Product without Hosting). The user has the right to make any changes to the Template, program code, database, HTML-code, and the directory structure of the Product without Hosting. The user has the right to place the Product without Hosting on any server. The user has no right to use the Product without Hosting to create more than one website.
According to all conditions of this Agreement, eSitesBuilder.com gives limited, not exclusive right of use (no right of property, sale or passing to a third party) of a website with hosting (Product with Hosting). The user has no right to copy the structure of the website and graphics, to pass them on or sell, issue or license, create derivedworks and use them on any other website or product. The user undertakes to use the Product with Hosting in a way that will not overload, cancel, or destruct the work of other users of the Product with Hosting.
- Charges and Billing
eSitesBuilder.com reserves the right to change any fees (which includes but is not limited to, increasing prices and charging a fee for upgrades and/or a Service for which eSitesBuilder.com does not currently charge a fee) at any time, provided, however, that eSitesBuilder.com will provide Member with reasonable notice prior to making any fee changes. In addition, eSitesBuilder.com will also give Member reasonable notice before any modification to the Service that could adversely impact Member's Site(s). If Member finds any change to the Service to be unacceptable, Member is free to cancel any part of the Service or Member's Account at any time, but eSitesBuilder.com will not refund any remaining portion of Member's pre-paid fees when Member cancels any part of the Service or Member's Account and Member may be charged a cancellation fee.
Member agrees to pay Member's Account balance on time. Member also agrees to pay any taxes, including sales or use taxes, resulting from Member's use of the Service. Member is responsible and liable for any fees, including attorney and collection fees, that eSitesBuilder.com may incur in its efforts to collect any remaining balances due from Member. This Section 3 shall in no way limit any other remedies available to eSitesBuilder.com. Member also acknowledges and agrees that Member will be billed for and will pay any outstanding balances if Member cancels Member's Account or Member's Account is terminated due to Member's breach of this Agreement. Member must notify eSitesBuilder.com of any billing problems or discrepancies within sixty (60) days after they first appear on Member's credit card account statement. If Member does not notify eSitesBuilder.com within sixty (60) days, Member waives any right to dispute such problems or discrepancies.
In order for Member to participate in the Service, eSitesBuilder.com will require Member to provide specific information about Member and/or and Member's business. If Member chooses to become a customer, Member agrees to provide true, accurate and complete information and to refrain from impersonating or falsely representing Member's affiliation with any person or entity. Member shall maintain a valid email address at a all times. Member shall be responsible for maintaining the confidentiality of Member's Account and password and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such account and password. Member shall be responsible for all actions by such users, including without limitation former employees and former partners, and shall indemnify eSitesBuilder.com for such actions as set forth in Section 13.
- Member Account Limitations
Member hereby acknowledges that eSitesBuilder.com may, from time to time, establish general practices and limits concerning the use of the Service, including without limitation, (a) the maximum number of days that email messages, guest book entries, discussion board postings or other content posted on the Member Web Site will be retained by eSitesBuilder.com, (b) maximum limits on bandwidth usage that will be allotted to Member, (c) maximum limits on storage space, (d) the maximum number of Web sites per Member Account, (e) maximum number of photographs per Member Account, (f) maximum limits on the number of pages within each Member Web Site, and (g) maximum time limitations for the retention of Member Content following a Trial Period or account cancellation. eSitesBuilder.com further reserves the right to delete at any time without prior notice duplicate images uploaded for printing. Any of the foregoing limits will be consistent with the Service (including any upgrades) for which Member has registered. Member agrees that eSitesBuilder.com has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Service. Member further acknowledges and agrees that eSitesBuilder.com reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. Member also acknowledges that any references to unlimited Web sites ("Unlimited Sites") offered per paying account shall be defined as not exceeding 99 sub domain sites per paying account. eSitesBuilder.com reserves the right to charge member for any third party fees associated with the creation of additional sites, including but not limited to domain registration fees.
- Content Submitted to eSitesBuilder.com
The Service includes a number of venues such as Member sites, Discussion Boards and/or other message or communication facilities designed to enable Members to disseminate and exchange thoughts and opinions to and with other users or the public. Although eSitesBuilder.com firmly believes in the value of free and open dissemination and exchanges; however, it is under no obligation, but does reserve the right, to monitor, pre-screen, or otherwise remove any content stored in its servers. Therefore, eSitesBuilder.com cannot be responsible for the appropriateness, accuracy, sufficiency, correctness, veracity, completeness, or timeliness of such thoughts and opinions. Member acknowledges that Member should always use caution when posting any personally identifying information about Member or Member's employees on the Service, the Member Site, or any other user sites.
- Member Conduct
Member's right to use the Service is personal to Member and Member's company and its employees (if applicable). Member, and not eSitesBuilder.com, is entirely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Member Content") posted via the Service. Member, and not eSitesBuilder.com, is also responsible for compliance with all laws, regulations and ordinances connected with all aspects of Member's use of the Service. Member shall not use the Service for any illegal purpose in violation of any local, state, federal or international law. Member must provide all required and appropriate warnings, information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate actions (collectively, "Information and Actions") in connection with Member's use of the Service. If the Service does not provide adequate facility or features for Member to provide such Information and Actions, then Member shall not use the Service.
eSitesBuilder.com does not control or monitor the Member Content posted via the Service and as such, does not guarantee the accuracy, integrity or quality of such content. eSitesBuilder.com reserves the right, but is not obligated to review the Member Content posted via the Service and to refuse or remove any such materials in its sole discretion, without notice at any time. eSitesBuilder.com also reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or remove any information or materials, in whole or in part, from the Member Content in eSitesBuilder.com's sole discretion. With respect to the content on the Member Web Site, Member agrees not to:
- post, upload or otherwise transmit any content which is misleading to others or impersonate any person or entity or falsely state or otherwise misrepresent Member's affiliation with a person or entity to others, including, but not limited to, consumers;
- post, upload or otherwise transmit any content that is threatening, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another's privacy, hateful, or racially and ethnically objectionable;
- post, upload or otherwise transmit any content that Member does not have a right to post and transmit under any law or under contractual or fiduciary relationships (such as information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- post, upload or otherwise transmit any content, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- post, upload or otherwise transmit any materials that contain 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 and/or attempt to access the accounts of others, or attempt to penetrate security measures of eSitesBuilder.com, its vendors or suppliers or other entities' systems ("hacking"), whether or not the intrusion results in corruption or loss of data;
- post, upload or otherwise transmit any materials that impose an unreasonable or disproportionately large load on eSitesBuilder.com's infrastructure that exceed the limits provided by the Service for which Member registered;
- post, upload or transmit any unsolicited or unauthorized advertising, promotional materials, "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities Exchange Commission, any rules of 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;
- forge any headers or other manipulation of identifiers in order to disguise the origin of any content transmitted through the Service;
- 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; or
- sell, distribute, disseminate or link to any sites for marketing, sales, distribution of: firearms, explosives, ammunition, liquor, tobacco products and any other products or services that (i) Member cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via the Member Web Site could cause eSitesBuilder.com to violate any law, statute or regulation.
- post or disclose any personal or private information or images about children or any third party without their consent (or a parent's consent in the case of a minor).
eSitesBuilder.com may terminate Member's account for failure to comply with the above listed rules of Member Conduct. Additionally, eSitesBuilder.com may request Member to place all or any portion of the Member Content behind password protection if eSitesBuilder.com determines that such content is inappropriate for the community at large but does not otherwise violate the terms of this Agreement. If eSitesBuilder.com has requested Member to place Member Content behind password protection or if Member independently determines that the Member Content appropriately belongs behind password protection, Member may not publish the password in such a way that negates the limited-access nature of the password protected site. If eSitesBuilder.com requests Member to place any Member Content behind password protection and Member fails to do so promptly, eSitesBuilder.com reserves the right to (a) place such content behind password protection itself, or (b) terminate Member's Account.
- Third Party Content
For Member's convenience, the Service may contain products, services, content and information from third party providers (which includes advertisers and affiliates) and/or links to their Web sites ("Third Party Content"). Such Third Party Content is not under the control of eSitesBuilder.com and eSitesBuilder.com is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. eSitesBuilder.com is under no obligation, but does reserve the right to pre-screen Third Part Content available on the Service and does not assume any responsibility or liability for the content provided by others. eSitesBuilder.com is providing such Third Party Content to Member only as a convenience, and the inclusion of such content does not imply endorsement by eSitesBuilder.com of such content or the affiliate or advertiser. Member may be subject to additional and/or different terms, conditions, and privacy policies when using third party products, services, content, software, or sites. eSitesBuilder.com does reserve the right to remove content that, in eSitesBuilder.com's judgment, does not meet its standards, but eSitesBuilder.com is not responsible for any failure or delay in removing such material.
eSitesBuilder.com is not and will not be responsible for (i) the terms and conditions of any transaction between Member and any third party, (ii) any insufficiency of or problems with any such third party's background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that Member has a dispute with any such third party, Member releases eSitesBuilder.com (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
- DISCLAIMER OF WARRANTIES.
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT:
(A) MEMBER'S USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. eSitesBuilder.com AND ITS SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND THE MEMBER SITE(S) "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(B) eSitesBuilder.com AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY MEMBER THROUGH THE SERVICE WILL MEET MEMBER'S EXPECTATIONS.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, OR MEMBER SITES IS DONE AT MEMBER'S OWN DISCRETION AND RISK, AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM eSitesBuilder.com OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
(E) A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE -- DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL eSitesBuilder.com AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF eSitesBuilder.com OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVICE, (B) THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, (C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO MEMBER. IN NO EVENT SHALL eSitesBuilder.com'S AGGREGATE LIABILITY TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT MEMBER ACTUALLY PAYS TO eSitesBuilder.com UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $150.00, WHICHEVER IS LESS. Without limiting the foregoing, neither eSitesBuilder.com nor its suppliers is responsible for any of Member's data residing on the Service or eSitesBuilder.com's suppliers' hardware. Member is responsible for backing-up Member's data and information that may reside on the Service or eSitesBuilder.com's suppliers' hardware, whether or not such information is produced through the use of the Service. It is Member's responsibility to take the necessary steps to ensure that Member's primary means of business is maintained (if applicable).
- Proprietary Rights to Member Content
eSitesBuilder.com does not claim ownership of the Member Content that Member provides to eSitesBuilder.com and/or places on the Member Site. However, Member grants eSitesBuilder.com a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Member Content on and through the Service and in eSitesBuilder.com's promotional or advertising materials (only for the limited purpose of promoting the Service), and (ii) sublicense to third parties such Member Content to the extent necessary for the creation and maintenance of, in part or in whole, such Web sites. No compensation will be paid or due Member with respect to eSitesBuilder.com's or its sublicensee's use of the materials as licensed above. By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through any Member Site, Member warrants and represents that Member owns or otherwise controls the rights necessary to do so and to grant eSitesBuilder.com the license set forth above, and, pursuant to the terms set forth in Section 13, Member will defend and indemnify eSitesBuilder.com and its suppliers from any third party claim related to a breach of any of the foregoing representations and warranties.
- eSitesBuilder.com Proprietary Rights/Software Licenses
Member acknowledges and hereby agrees that the Service and any software used in connection with the Service (the "Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Member further acknowledges and agrees that content contained in sponsor advertisements or information presented to Member through the Service, advertisers and/or Discussion Boards is protected by applicable copyrights, trademarks, service marks, patents and other proprietary rights and laws.
eSitesBuilder.com provides Member with a non-exclusive, non-transferable, limited license to use the Software, which Member agrees to use in accordance with this Agreement. Member may not sub-license or charge others to use or access the Software without first obtaining written permission or a written agreement from eSitesBuilder.com. The Software is owned by eSitesBuilder.com and/or its suppliers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification, creation of derivative works from or redistribution of the Software is expressly prohibited, and may result in severe civil and criminal penalties. The Software, its structure, sequence and organization and source code are considered trade secrets of eSitesBuilder.com and its suppliers and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
Member agrees to indemnify and hold eSitesBuilder.com and its suppliers, affiliates, partners, subsidiaries and employees (collectively, the "Indemnified Parties") harmless from any and all claims and demands, losses, liability costs and expenses (including, but not limited to, reasonable attorneys' fees), incurred by an Indemnified Party arising out of or related to (i) Member's breach of this Agreement; (ii) any information (including but not limited to Member Content and Member's publicly posted information) submitted, posted, or otherwise provided by Member at the Member Site and/or to eSitesBuilder.com and/or its affiliates; (iii) any dispute or litigation between an Indemnified Party and a third party caused by Member's actions; and (iv) Member's negligence or violation or alleged violations of any rights of another. These obligations will survive any termination of Member's relationship with eSitesBuilder.com or Member's use of the Service. To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of eSitesBuilder.com and/or its suppliers, affiliates, partners, subsidiaries and employees.
- Copyright and Trademark Notices
All materials of the Service and the Software (as well as the organization and layout of the Service are owned and copyrighted or licensed by eSitesBuilder.com, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials of the Service, which includes the eSitesBuilder.com and eSitesBuilder Web sites (and any successor Web sites or additional Web sites or any co-branded Web sites), and/or the Software, is permitted without the written permission of eSitesBuilder.com. Any rights not expressly granted herein are reserved.
eSitesBuilder.com, XT-Labs.com, the eSitesBuilder.com logo, eSitesBuilder, eSitesBuilder.com, the eSitesBuilder logo, eSite Standard, eSitesBuilder Content Manager and other eSitesBuilder.com logos and product and service names are trademarks of XTLabs, Inc. (the "XTLabs Marks"). Member agrees not to display or use the XTLabs Marks in any manner whatsoever without eSitesBuilder.com's prior permission. From time to time eSitesBuilder.com may offer a limited license to Members to display eSitesBuilder.com award logos or other symbols of merit on Member Web Sites after eSitesBuilder.com in its sole discretion confers such distinctions to the applicable Members. However, eSitesBuilder.com reserves the right to withdraw such logos or symbols and delete them in its sole discretion for any reason.
- Modification of the Service
eSitesBuilder.com reserves the right, at its sole discretion, to, at any time, modify, or discontinue the Service, temporarily or permanently, (or any part thereof), including the imposition of limits on certain features and services or restriction of access to parts or all of the Service, with or without notice. Member agrees that eSitesBuilder.com shall not be liable to Member or to any third party for any modification, suspension or discontinuance of the Service. Member further agrees that eSitesBuilder.com shall have the right to remove any feature from the Member Site, with or without notice to Member, at any time at eSitesBuilder.com's sole discretion, if eSitesBuilder.com discontinues offering the feature for any reason. If Member does not agree to any such modifications, Member's sole and exclusive remedy is to cancel Member's Account.
- Termination/Cancellation of Member Account
Either Member or eSitesBuilder.com may terminate or cancel Member's Account (or any part of the Service) at any time, but eSitesBuilder.com will not refund any pre-paid fees upon such termination or cancellation.
- Termination by Member. Member may cancel your Member Account or any part of the Service at any time. To cancel your Service, Member must write an email to adress cancelesitesbuilder.com. Member will receive a cancellation confirmation via email after eSitesBuilder.com processes Member's cancellation request. eSitesBuilder.com reserves the right to collect fees, surcharges or costs incurred before Member cancels Member's Account in addition to the applicable cancellation fee(s).
Member must provide us with the following information in order for us to process the cancellation:
- The exact name of the Service that Member would like to cancel
- Member's username and password
- Member's email address
- Member's billing information, including the credit card number Memberused when purchasing the Service
- Member's reason for canceling the Service
- Termination by eSitesBuilder.com. eSitesBuilder.com may terminate Member's Service or Member's Account if eSitesBuilder.com determines, in eSitesBuilder.com's sole discretion, to discontinue offering the Service. Additionally, eSitesBuilder.com, in its sole discretion, may terminate Member's Site, Member's Account or Member's use of the Service for any reason, including, without limitation, (i) if Member breaches this Agreement, (ii) if eSitesBuilder.com is unable to verify or authenticate any information that Member provides to eSitesBuilder.com, or (iii) if eSitesBuilder.com believes that Member has violated or acted inconsistently with the spirit of this Agreement. If eSitesBuilder.com terminates Member's Account pursuant to (i), (ii) or (iii) above, Member will forfeit all credits, pre-paid fees, and any other amounts accruing to Member, if any, and eSitesBuilder.com shall not be required to refund, redeem, or pay amounts to Member upon such termination.
- Effect of Termination. Upon termination of Member's Account for any reason, eSitesBuilder.com reserves the right to (a) collect all charges, fees, commitments and obligations incurred or accrued by Member; (b) delete any Member Content, listings, messages or other information in connection with Member's Account; (c) prohibit Member's access to Member's Account, including without limitation by deactivating Member's password; and (d) refuse Member future access to the Service. In no event shall eSitesBuilder.com be required to refund, redeem, or pay amounts to Member upon termination of Service or return any Member Content.
Statements, notices and other communications to Member may be made by mail, email, postings within Member's account or other reasonable means. Member shall be solely responsible for updating the account's registered email and postal address. eSitesBuilder.com shall not be responsible for any undelivered notices caused by Member's failure to update the account information. eSitesBuilder.com may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices generally on the eSitesBuilder Web Site. Member should refer to the Member Support page of the Service for information on how to contact and/or provide notice to eSitesBuilder.com.
- Arbitration/ Jurisdiction
Member agrees that any dispute or claim arising out of or related to the Service or this Agreement, or the interpretation, making, performance, breach or termination thereof, shall be finally settled by binding arbitration in Santa Clara County, California under the American Arbitration Association Rules by one arbitrator appointed in accordance with said Rules. The proceedings shall be conducted and all evidence shall be offered in the English language. Member agrees that any claim against eSitesBuilder.com must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be barred forever.
Notwithstanding the above, eSitesBuilder.com may apply to any court of competent jurisdiction (i) for a temporary restraining order, preliminary injunction or other interim or conservatory relief as necessary, including without limitation for breach of Section 13 (eSitesBuilder.com Proprietary Rights/Software License) or (ii) to collect fees due and owing from Member pursuant to this Agreement, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator.
This Agreement shall be governed in all respects by the laws of the State of California, U.S.A. Such law shall be applied by the arbitrator to the merits of any dispute or claim. For any non-arbitral action or proceeding arising out of or related to the Service or this Agreement, both parties submit to sole and exclusive jurisdiction and venue in the courts located in Santa Clara County, California and further agree that any such action or proceeding shall be brought in a court in Santa Clara County, California.
A printed version of this Agreement shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. eSitesBuilder.com's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Member shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without prior written approval of eSitesBuilder.com, and any such attempted assignment shall be void. eSitesBuilder.com shall have the right to freely assign this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent or notice of Member. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and permitted assigns. This Agreement sets forth the entire understanding and agreement between eSitesBuilder.com and Member with respect to the subject matter hereof. The section and subsection titles in the Agreement are for convenience only and have no legal or contractual effect. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures.
- Independent Review
MEMBER ACKNOWLEDGES THAT MEMBER HAS READ THIS AGREEMENT AND ALL RELATED SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT MEMBER AGREES TO ALL ITS TERMS AND CONDITIONS. MEMBER HAS INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
Service-Specific Terms: The following terms apply in addition to paragraphs 1-20 if Member has purchased a Service package which includes the particular service described. eSitesBuilder.com may change service providers or stop providing the following services at any time without notice to Member; and Member shall permit eSitesBuilder.com to act as its agent with respect to the following services:
- Internet Domain Names
eSitesBuilder.com has chosen independent Third Party Domain Name Vendors ("TPDNVs") who are ICANN accredited registrars, to provide domain name registration services. Member hereby authorizes eSitesBuilder.com if requested, to transfer in or acquire Member's selected domain name from TPDNVs. In order to receive a domain name, Member must agree and remain agreeable through the use of the Domain Name, to the TPDNVs' terms of service which the TPDNVs may change at any time in their sole discretion to the TPDNVs' terms of service. Member understands that Member is creating a separate contractual relationship between Member and the TPDNVs, and that Member, and not eSitesBuilder.com, is responsible for all liability, and obligations in connection with that relationship.
If, after registering one or more domain names that are included with any eSitesBuilder.com Service package, because of a customer's incorrect registration of a domain name or otherwise, member chooses to delete a previously registered domain name and subsequently register one or more additional different Domain Names, Customer will be charged the resulting Domain Name registration fees.
Member will be listed as the registrant and administrative contact in connection with Member's domain name; however, eSitesBuilder.com may temporarily list itself as the registrant and administrative contact in the event that it changes to a different TPDNVs until the TPDNVs change is completed. Member hereby authorizes eSitesBuilder.com to list itself as the billing contact, technical contact and name servers in connection with Member's domain name and to take any actions eSitesBuilder.com deems appropriate in those capacities. However, upon termination of the Service, eSitesBuilder.com will immediately cease acting in those capacities including switching registrars. After such time, eSitesBuilder.com will not be responsible to forward any notices, emails or other correspondence to Member or to take any other actions in connection with Member's domain name. Member will be solely responsible for all ongoing fees, as well as removing eSitesBuilder.com as the billing, technical contact and name servers in connection with Member's domain name.
Email services are provided by an independent Third Party Email Services Vendor ("TPESV"). eSitesBuilder.com is not responsible for the actions or inaction of the then current TPESV or the unavailability or malfunction of their network or services. eSitesBuilder.com is not a party to, and shall not be involved in or responsible for, transactions, agreements, and/or disputes between Member and the TPESV ("TPESV Dispute"). In the event of a the TPESV Dispute, Member hereby releases eSitesBuilder.com (and its officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes. By using email services, Member agrees to the terms and conditions contained in the "Acceptable Use Policy" and "Mass Mailing Policy" provided below:
22.1 Acceptable Use Policy
- "User" refers to the person or business entity that has contracted with eSitesBuilder.com for e-mail services.
- "End User" refers to the person, persons, or entity using a specific account (designated by a unique e-mail address) within a domain controlled by User and operated by eSitesBuilder.com.
- Unsolicited Bulk E-mail
Any User who sends unsolicited advertisements or solicitations, commercial or otherwise, may have its account disabled and be disallowed further service. The User is responsible for ensuring that its End Users use the email services obtained from eSitesBuilder.com in an appropriate manner. Therefore, the User must take steps to manage the use of the services obtained in such a way that network abuse is minimized. The User must also make contact information publicly available, and must respond in a timely manner to any complaints. eSitesBuilder.com shall consider any complaints regarding the User's End Users to apply to the User. In extreme cases, eSitesBuilder.com operations personnel have the option to immediately disable any User account in order to forestall further abuse or damage to e-mail systems. Should this occur, the User shall be notified as soon as possible.
Unsolicited advertisements or solicitations sent from other networks which reference e-mail accounts hosted at eSitesBuilder.com shall be treated as if they originated from the account referenced, unless there is sufficient reason given for eSitesBuilder.com operations staff to believe that the message truly originated with some unrelated party. Likewise, postings made to the usenet newsgroups or other online forums which reference e-mail accounts hosted at eSitesBuilder.com, and are deemed to be inappropriate according to the local ethical standards of that forum, may be treated in the same manner as unsolicited bulk e-mail above.
- Filtering of Incoming E-mail
As owner of the equipment and other resources utilized to provide services, eSitesBuilder.com has the legal right to block electronic communications from other entities on the Internet. Users should be aware that such blocking or filtering might take place if deemed necessary by designated members of the eSitesBuilder.com operations staff (or a third party chosen by eSitesBuilder.com and made known to the User). Whenever possible, the party being blocked shall be made aware of such action before it occurs.
- Illegal Activities
Email services offered may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or of state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statute. eSitesBuilder.com and the TPESV reserve the right to cooperate with law enforcement and other legal authorities in investigating claims of illegal activity.
- Right to Damages
eSitesBuilder.com and the TPESV consider most instances of unsolicited bulk e-mail to be a theft of services and reserve the right to prosecute originators of same in a court of law. eSitesBuilder.com and the TPESV reserve the right to collect damages (software, hardware, and man hours) if any harm is done to eSitesBuilder.com or to the TPESV's network or equipment that requires repair or reconfiguration of any kind. If deemed appropriate by eSitesBuilder.com and/or the TPESV, User will be billed not less than $500 per individual complaint received by eSitesBuilder.com staff. In addition, eSitesBuilder.com and the TPESV reserve the right to collect punitive damages in recompense for any perceived loss of brand reputation.
Nothing contained in this Section 22 shall be construed to limit action eSitesBuilder.com and/or the TPESV may take or remedies available to eSitesBuilder.com and the TPESV in any way with respect to any of the described conduct. eSitesBuilder.com and TPESV reserves the right to take any additional actions eSitesBuilder.com and/or TPESV considers appropriate with respect to such conduct, including without limitation taking action to recover costs and expenses of identifying offenders and removing them from eSitesBuilder.com and TPESV 's network or systems, and levying cancellation charges to cover costs in the event of disconnection for the causes outlined in this Agreement. In addition, eSitesBuilder.com and TPESV reserve at all times all rights and remedies available to eSitesBuilder.com and TPESV with respect to such conduct at law or in equity. Non-enforcement of any term or condition herein does not constitute consent or waiver, and eSitesBuilder.com and TPESV reserve the right to enforce such term or condition at its sole discretion.
22.2 Mass Mailing Policy
The following are the guidelines for all mass mailings by User, or a third party contracted on behalf of User to send mass mailings to End Users.
- Policy objectives: The goals of this mass mailing policy include, but are not limited to, the following issues: controlling mailing rates that stress systems; eliminating service degradations; mitigating the thousands of bounce messages in mail queues that delay mail delivery; mitigating invalid return address information; and eliminating mass mailings during peak business hours.
- "Opt-in" mailings are those which are to more than 250 End Users by either Users or their third party partner to any group of End Users. Opt-in means that the End User has signed up for mailings voluntarily. "Opt-in" implies that the mailing is not SPAM (defined below).
- "SPAM" is defined as unsolicited bulk email that includes advertisements or solicitations, commercial or otherwise, regardless of content. Without exception, eSitesBuilder.com prohibits the practice of mass-mailing unwanted e-mail solicitations of any type, regardless of content, and will take action to prevent this practice.
- Mass Mailing Requirements:
- Mail send rate: Mass mailings will be done at a maximum rate of 10 messages/second.
- Use of appropriate servers for originating mailings: use of eSitesBuilder.com or its suppliers' hosted SMTP servers for mass mailings is strictly prohibited.
- Delivery of mass mailings: (i.e. mass mailing sent by a domain hosted or not hosted by eSitesBuilder.com to domains hosted by eSitesBuilder.com) all mass mailings must be delivered through eSitesBuilder.com or its suppliers' inbound MX machines. All mass mailings sent through eSitesBuilder.com or its suppliers' SMTP servers will not be delivered.
- Allowable send times: mass mailings will be started and completed between 9pm and 4am US Pacific Time.
- Valid "From", "Reply-To", "Return-Path" and "Error-To" headers: If the following values are listed in your mail header please confirm that they are valid addresses and each email address must accept any bounces at the rate they may occur:
- Valid "Abuse contact": Users who send/receive mass mailings must supply eSitesBuilder.com with an emergency "abuse contact" to contact if there are any problems/complaints associated with the mailing.
- Notifying eSitesBuilder.com of mass mailing: eSitesBuilder.com requires 5 days advance notice for all mailings. The following information must be mailed to email@example.com:
- Customer Name
- Number of recipients
- "From" domain
- "Target" domain
- Mailing Subject
- Mailing Date
- Mailing Start-End Times
- Rate of mailing (maximum of 10 messages per second)
- Valid "From", "Reply-To", "Return-Path" and "Error-To" addresses (please list the values used, if any)
- Copy of the message content
- Method for users to "opt-out" of mailings
- Failure to Comply with Mass Mailing Requirements. Failure to comply with the conditions set forth above may result in any or all of the following:
- Blocking of the mailing currently causing the problems/complaints.
- Blocking of future mailings until the above requirements are satisfied. (Or until there is an agreement or special dispensation made by the eSitesBuilder.com Abuse Administrator)
- If no "abuse contact" is provided to eSitesBuilder.com, eSitesBuilder.com reserves the right to block mailings without notifying User as necessary.
- eSitesBuilder.com reserves the right to suspend or terminate accounts for breaches of eSitesBuilder.com's Mass Mailing Policy.
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