Условия использования продуктов
- 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 XTLabs Inc. ("XTLabs"). 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 XTLabs
Inc. 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 XTLabs to update or revise certain provisions of the Agreement.
By signing up for any XTLabs Service and accepting this Agreement, Member agrees
that XTLabs 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
XTLabs, or to any terms in this Agreement, Member's sole and exclusive remedy
is to cancel Member's XTLabs Service ("Member's Account"). Notwithstanding the
foregoing, XTLabs 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 XTLabs, 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, XTLabs 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, XTLabs 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, XTLabs 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
XTLabs 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
XTLabs does not currently charge a fee) at any time, provided, however, that XTLabs
will provide Member with reasonable notice prior to making any fee changes. In
addition, XTLabs 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 XTLabs 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 XTLabs 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 XTLabs. 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
XTLabs 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
XTLabs within sixty (60) days, Member waives any right to dispute such problems
In order for Member to participate in the Service, XTLabs 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 XTLabs for such actions
as set forth in Section 13.
Any information supplied by Member upon registering for the Service and any other
information about Member and/or Member's business (collectively, "Member Data")
e-mail messages to inform Member of new products, promotions, features and helpful
tips for XTLabs services. XTLabs will also use email to inform Member of important
policy changes or subscription renewal notices. For more information, Members
may review the XTLabs
- Member Account Limitations
Member hereby acknowledges that XTLabs 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 XTLabs, (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.
XTLabs 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 XTLabs 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 XTLabs 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. XTLabs 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
- Content Submitted to XTLabs
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 XTLabs 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, XTLabs 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 XTLabs, 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 XTLabs, 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.
XTLabs 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.
XTLabs 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. XTLabs 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 XTLabs'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
- 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 XTLabs, 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 XTLabs'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 XTLabs to violate any law, statute
- 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
XTLabs may terminate Member's account for failure to comply with the above listed
rules of Member Conduct. Additionally, XTLabs may request Member to place all
or any portion of the Member Content behind password protection if XTLabs determines
that such content is inappropriate for the community at large but does not otherwise
violate the terms of this Agreement. If XTLabs 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 XTLabs requests Member to place any Member
Content behind password protection and Member fails to do so promptly, XTLabs
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 XTLabs and XTLabs is not responsible for such content,
including, without limitation, any link contained in such content, or any changes
or updates to such content. XTLabs 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. XTLabs is
providing such Third Party Content to Member only as a convenience, and the inclusion
of such content does not imply endorsement by XTLabs 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. XTLabs does reserve the right to remove content that, in XTLabs's judgment,
does not meet its standards, but XTLabs is not responsible for any failure or
delay in removing such material.
XTLabs 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
XTLabs (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. XTLABS 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) XTLABS 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 XTLABS
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 XTLABS 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 XTLABS 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 XTLABS'S AGGREGATE LIABILITY
TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED
THE AMOUNT MEMBER ACTUALLY PAYS TO XTLABS 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 XTLabs nor its suppliers is responsible
for any of Member's data residing on the Service or XTLabs's suppliers' hardware.
Member is responsible for backing-up Member's data and information that may reside
on the Service or XTLabs'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
- Proprietary Rights to Member Content
XTLabs does not claim ownership of the Member Content that Member provides to
XTLabs and/or places on the Member Site. However, Member grants XTLabs 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 XTLabs'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 XTLabs'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 XTLabs the license
set forth above, and, pursuant to the terms set forth in Section 13, Member will
defend and indemnify XTLabs and its suppliers from any third party claim related
to a breach of any of the foregoing representations and warranties.
- XTLabs 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.
XTLabs 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 XTLabs. The Software
is owned by XTLabs 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 XTLabs 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 XTLabs 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
XTLabs 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 XTLabs 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 XTLabs 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 XTLabs, its affiliates
or its suppliers. All rights reserved. No reproduction, distribution, or transmission
of the copyrighted materials of the Service, which includes the XTLabs 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
XTLabs. Any rights not expressly granted herein are reserved.
XTLabs, XT-Labs.com, the XTLabs logo, eSitesBuilder, eSitesBuilder.com, the eSitesBuilder
logo, eSite Standard, eSite Advanced, Content Manager and other XTLabs 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 XTLabs's prior permission. From time to time XTLabs may offer a limited
license to Members to display XTLabs award logos or other symbols of merit on
Member Web Sites after XTLabs in its sole discretion confers such distinctions
to the applicable Members. However, XTLabs reserves the right to withdraw such
logos or symbols and delete them in its sole discretion for any reason.
- Modification of the Service
XTLabs 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 XTLabs
shall not be liable to Member or to any third party for any modification, suspension
or discontinuance of the Service. Member further agrees that XTLabs shall have
the right to remove any feature from the Member Site, with or without notice to
Member, at any time at XTLabs's sole discretion, if XTLabs 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 XTLabs may terminate or cancel Member's Account (or any part
of the Service) at any time, but XTLabs 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 email@example.com.
Member will receive a cancellation confirmation via email after XTLabs processes
Member's cancellation request. XTLabs reserves the right to collect fees, surcharges
or costs incurred before Member cancels Member's Account in addition to the applicable
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 XTLabs. XTLabs may terminate Member's Service or Member's
Account if XTLabs determines, in XTLabs's sole discretion, to discontinue offering
the Service. Additionally, XTLabs, 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 XTLabs is unable
to verify or authenticate any information that Member provides to XTLabs, or (iii)
if XTLabs believes that Member has violated or acted inconsistently with the spirit
of this Agreement. If XTLabs 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 XTLabs 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, XTLabs 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 XTLabs be required to refund, redeem, or pay amounts to Member
upon termination of Service or return any Member Content.
Member understands and agrees that the cancellation of Member's Account is Member's
sole right and remedy with respect to any dispute with XTLabs. This includes,
but is not limited to, any dispute related to, or arising out of: (1) any term
of this Agreement or XTLabs's enforcement or application of any such term; (2)
enforcement or application of these policies; (3) the content available through
the Service or any change in content provided through the Service; (4) Members'
ability to access or use the Service or Member's Web Site; or (5) the amount or
type of fees, surcharges, applicable taxes, billing methods or change to the fees,
applicable taxes, surcharges or billing methods, if any.
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. XTLabs
shall not be responsible for any undelivered notices caused by Member's failure
to update the account information. XTLabs 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 XTLabs.
- 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 XTLabs 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
Notwithstanding the above, XTLabs 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 (XTLabs 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. XTLabs'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 XTLabs, and any such attempted assignment shall be void.
XTLabs 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 XTLabs
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
- 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. XTLabs may change service providers or stop providing the following
services at any time without notice to Member; and Member shall permit XTLabs
to act as its agent with respect to the following services:
- Internet Domain Names
XTLabs has chosen independent Third Party Domain Name Vendors ("TPDNVs") who are
ICANN accredited registrars, to provide domain name registration services. Member
hereby authorizes XTLabs 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 XTLabs, 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 XTLabs
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, XTLabs 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 XTLabs to
list itself as the billing contact, technical contact and name servers in connection
with Member's domain name and to take any actions XTLabs deems appropriate in
those capacities. However, upon termination of the Service, XTLabs will immediately
cease acting in those capacities including switching registrars. After such time,
XTLabs 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 XTLabs
as the billing, technical contact and name servers in connection with Member's
Email services are provided by an independent Third Party Email Services Vendor
("TPESV"). XTLabs is not responsible for the actions or inaction of the then current
TPESV or the unavailability or malfunction of their network or services. XTLabs
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 XTLabs (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 XTLabs
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 XTLabs.
- 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 XTLabs 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. XTLabs shall consider any complaints regarding
the User's End Users to apply to the User. In extreme cases, XTLabs 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 XTLabs shall be treated as if they originated from the
account referenced, unless there is sufficient reason given for XTLabs 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 XTLabs, 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, XTLabs
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 XTLabs operations staff
(or a third party chosen by XTLabs 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. XTLabs and the TPESV reserve the right to cooperate with
law enforcement and other legal authorities in investigating claims of illegal
- Right to Damages
XTLabs 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. XTLabs and the TPESV reserve the right to collect damages (software,
hardware, and man hours) if any harm is done to XTLabs or to the TPESV's network
or equipment that requires repair or reconfiguration of any kind. If deemed appropriate
by XTLabs and/or the TPESV, User will be billed not less than $500 per individual
complaint received by XTLabs staff. In addition, XTLabs and the TPESV reserve
the right to collect punitive damages in recompense for any perceived loss of
Nothing contained in this Section 22 shall be construed to limit action XTLabs
and/or the TPESV may take or remedies available to XTLabs and the TPESV in any
way with respect to any of the described conduct. XTLabs and TPESV reserves the
right to take any additional actions XTLabs 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 XTLabs 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,
XTLabs and TPESV reserve at all times all rights and remedies available to XTLabs
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 XTLabs
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,
XTLabs 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 XTLabs 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 XTLabs to domains hosted by XTLabs) all mass mailings must be delivered
through XTLabs or its suppliers' inbound MX machines. All mass mailings sent through
XTLabs 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 XTLabs
with an emergency "abuse contact" to contact if there are any problems/complaints
associated with the mailing.
- Notifying XTLabs of mass mailing: XTLabs requires 5 days advance notice for
all mailings. The following information must be mailed to firstname.lastname@example.org:
- 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 XTLabs Abuse Administrator)
- If no "abuse contact" is provided to XTLabs, XTLabs reserves the right to block mailings without notifying User as necessary.
- XTLabs reserves the right to suspend or terminate accounts for breaches of XTLabs's Mass Mailing Policy.
- Standard Clip-Art and Photos
As part of the Service, XTLabs provides its Members with standard clip-art and
photos to incorporate into their Member Web Sites. In using the clip-art and photos,
Member is governed by an Image
License Agreement with a Third Party Image Vendor ("TPIV"), the supplier of
the clip-art and photos, which is incorporated into this Agreement. Member understands
that the Image License Agreement is a separate contractual relationship between
Member and the TPIV, and that Member, and not XTLabs, is responsible for all liability,
and obligations in connection with that relationship. XTLabs is not a party to,
and shall not be involved in or responsible for, transactions, agreements, and/or
disputes between Member and the TPIV ("TPIV Dispute"). In the event of a TPIV
Dispute, Member hereby releases XTLabs (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.
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