I. ACCEPTANCE OF TERMS
1.1 These Terms of Service (TOS) are between you ("You", "Your" or Merchant) and OnWebCenter Limited and its affiliates ("OnWebCenter") and consists of the most recent versions of the terms and conditions of the TOS ( http://www.onwebcenter.com/corporate/en/TermsofService.htm) as well as the OnWebCenter Privacy Policy: (http://www.onwebcenter.com/corporate/en/PrivacyPolicy.htm).
1.2 OnWebCenter reserves the right, in its sole discretion, to change, modify, add or remove all or part of these Terms, including but not limited to any term, applicable fee, policy, or guideline, at any time without notice or acceptance by You, except as provided in Section 4. Regardless of whether OnWebCenter has provided You individual notice, Your continued use of the Service following OnWebCenter notice or posting of changed Terms will constitute Your acceptance of such changes. It is Your responsibility to check regularly for changes to the Terms and ensure that any contact information You provide to OnWebCenter is updated and correct.
1.3 BY COMPLETING THE REGISTRATION PROCESS (Registration Process) AND CHECKING THE "CONFIRM" BUTTON YOU: (a) agree to be bound by these Terms; (b) represent and warrant that, if You are an individual, You are of age of majority, if you are an entity that You are a corporation, partnership or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept these Terms; (c) agree to provide true, accurate, current and complete information in the Service registration form, including billing and credit card related information and other account information (all together, the Account Information), and agree to maintain and update this information to keep it true, accurate, current and complete; and (d) represent and warrant that You have the power and authority to enter into and perform under these Terms. If these Terms or any future changes are unacceptable to You, Your sole remedy is to cancel Your Service. IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS, DO NOT COMPLETE THE REGISTRATION PROCESS.
II. DESCRIPTION OF SERVICE
2.1 The complete list of services (the Service) governed by these Terms is as follows:
OnWebCenter Merchant Solutions: E-Commerce Pack
OnWebCenter Personal Solutions: Starter, Lite, Value, Super, and Ultra Packs
OnWebCenter Sitebuilder
OnWebCenter E-mail/Collaboration Solutions (E-Mail/Collaboration Solutions)
OnWebCenter Domain Solutions: Domain Registration Service
2.2 If You are a OnWebCenter Merchant Solutions customer, Your Service includes E-Commerce (Store) functionality, OnWebCenter Sitebuilder, Web Hosting, E-Mail/Collaboration Solutions and OnWebCenter Domain Services.
2.3 If You are a OnWebCenter Personal Solutions customer, Your Service includes OnWebCenter Sitebuilder, Web Hosting, E-Mail/Collaboration Solutions and OnWebCenter Domain Services.
2.4 Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Service resources, shall be subject to these Terms. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any fees associated with such access. You are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for Your access to and use of the Service and any Software, and for all related fees.
III. INTELLECTUAL PROPERTY
3.1 Except for the rights expressly granted herein, this Agreement does not transfer from OnWebCenter to You any OnWebCenter developed, licensed or owned technology, and all rights, title, and interest in and to such technology will remain solely with OnWebCenter. The parties agree that they will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the other party.
3.2 Notwithstanding anything to the contrary in this Agreement, You will not attempt to prohibit or enjoin OnWebCenter at any time from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of OnWebCenter
3.3 OnWebCenter may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act, and You expressly authorize OnWebCenter to comply with any and all lawful notices, subpoenas, court orders or warrants without prior notice to You.
3.4 You will not use OnWebCenter's name or any language, pictures or symbols which could, in OnWebCenter's sole judgment, imply OnWebCenter's identity in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without OnWebCenter's prior written consent. You agree that any and all press releases and other public announcements related to this Agreement and subsequent transactions between OnWebCenter and You, including the method and timing of such announcements, must be approved in advance by OnWebCenter in writing. OnWebCenter reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Your obligation regarding public announcements shall be a material breach of these Terms.
3.5 OnWebCenter, and other OnWebCenter product and service names, and all of their related logos, are each trademarks of OnWebCenter. (the "OnWebCenter Marks"). Without OnWebCenter's prior written permission, you agree not to display or use in any manner, the OnWebCenter Marks.
IV. PAYMENT
4.1 Payment Terms
Unless modified in accordance with Section 4.6, You will pay all fees due according to the prices and terms applicable to your Services, including option features. All installation or set-up fees and non-recurring charges, along with the first month's recurring charges, shall be due and payable within ten (10) days of initiation of Service. Thereafter, recurring fees will be charged, in advance to Your credit card or designated funding source. If Your credit card or designated funding source is invalid or You are otherwise past-due in your payments for any reason, the Service may be terminated and removed from OnWebCenter's servers by OnWebCenter with or without notice, and all the information contained within deleted permanently. OnWebCenter accepts no liability for information or content that is deleted due to an invalid credit card or where Your payments are past-due. Reactivation of the Service after termination or cancellation for any reason shall require the payment of additional set up fees. In the event You fail to pay charges, OnWebCenter may assign unpaid late balances to a collection agency for appropriate action. In the event legal action is necessary to collect on balances due, You agree to reimburse OnWebCenter for all expenses incurred to recover sums due, including attorneys' fees and other legal expenses. You also agree to pay all current charges for the Service as well as taxes and fees assessed against You or OnWebCenter on the charges and all late payment, interest or other fees as stated on Your bill. OnWebCenter may modify its billing practices or late payment charges by providing You with prior written notice of the modification. OnWebCenter in its discretion may offer discounts or special offers from time to time.
4.2 Merchant Solutions
If You are a OnWebCenter Merchant Solutions customer, You will be charged, as applicable, (a) a one-time set up fee, and (b) a monthly Services/hosting fee. If You are a OnWebCenter Domains customer, you will be charged, as applicable, an annual Service fee. OnWebCenter will calculate all fees.
4.3 Personal Solutions
If You are a OnWebCenter Personal Solutions customer, You will be charged, as applicable, (a) a one-time set up fee, and (b) a monthly Service/hosting fee. If You are a OnWebCenter Domains customer, you will be charged, as applicable, an annual Service fee. OnWebCenter will calculate all fees.
4.4 Data Transfer Fee
For OnWebCenter Merchant Solutions and OnWebCenter Personal Solutions customers, OnWebCenter will be implementing a quota system specifying a maximum monthly data-transfer under each service. When this system is fully implemented a notification will be sent explaining the details of this system.
4.5 Upgrades and Downgrades
You can upgrade or downgrade between the plans and products listed in Section 2 above at any time. Such upgrade or downgrade will take effect immediately. The credit card or funding source that You provided will automatically be charged for the new fees and be credited and amounts to be refunded, if any. In the event that you change from one monthly service to another, your credit will be charged a pro-rata amount for the upgraded service and credit a pro-rata amount for the unused previous service. Portability of existing site content cannot be ensured after an upgrade or downgrade.
For OnWebCenter Domain Solutions upon upgrades, downgrades or cancellation there is no refund of any unused portion of the service. You will own the domain name until the end of your prepaid term.
4.6 Price Changes
OnWebCenter may, upon notice required by applicable laws, at any time change the amount of or basis for determining any fee or charge or institute new fees or charges with respect to the Service. Upon renewal, as provided in Section 5.1, the prices charged may be changed without notice to the then prevailing price for the Services.
Current Fee Schedules
For the current fee schedules, go to:
http://www.onwebcenter.com/corporate/en/pricing.htm for Package Fee Schedule;
4.7 Taxes
You shall pay or otherwise be responsible for all federal, state or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges (hereinafter "Tax") imposed on, or with respect to, the Services under this Agreement.
V. TERM AND TERMINATION
5.1 Term
The initial term of this Agreement and these Terms will commence on the date that You CHECK THE "I ACCEPT" CHECKBOX, AND CLICK THE SUBMIT BUTTON to agree to these Terms (or the first date on which you use the Service, whichever comes first) and will remain effective until you cancel the service. Except as set forth in these Terms, neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its Terms.
5.2 Cancellation/Termination by You
You may cancel Your Service and terminate these Terms at any time. If You cancel the Service before the end of the Initial or Renewal Term, Your Service and access to the Service will be discontinued within 10 business days. No refund will be provided for any payments You have made.
If You registered for a new domain name in conjunction with Your Service, and cancel before the end of its term, You will remain the owner of the domain and Your domain name will remain registered for its current term. However, Your domain name will cease working with Your E-mail and no longer point to Your website. After cancellation and/or expiration of this Agreement, You will no longer have access to Your website and all information contained therein may be deleted by OnWebCenter.
5.3 Termination by OnWebCenter
OnWebCenter may terminate these Terms at any time upon notice to You. Notwithstanding anything to the contrary herein, OnWebCenter may also, but has no duty to, immediately suspend or terminate Your Service, terminate Your access and password, remove Your Service from OnWebCenter servers, or remove any Content within the Service, if OnWebCenter concludes, in its sole discretion, that You (a) have breached, violated or acted inconsistently with the letter or spirit of these Terms, including any applicable OnWebCenter Policy or any applicable law or regulation; (b) have provided false information as part of your Account Information, (c) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (d) are engaged in activities or sales that may damage the rights or reputation of OnWebCenter or others (each Termination for Cause). Any Termination For Cause by OnWebCenter will take effect immediately, and You expressly agree that You will not have any opportunity to cure. If Your user ID is terminated for any reason, these Terms and Your access to the Service will also be terminated. Additionally, if You registered a new domain name in conjunction with Your Service, and OnWebCenter terminates Your Service due to a Termination for Cause any payments made for the acquisition of the domain will not be refunded. You acknowledge that You will remain the owner of the domain and Your domain name will remain registered for its current term.
5.4 Termination for Cause by Either Party
In addition to any other right to terminate set forth herein, either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from OnWebCenter; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
5.5 Termination Legal Event
In the event a ruling, regulation or order issued by a judicial, legislative or regulatory body causes OnWebCenter to believe that these Terms and/or the Service provided hereunder may be in conflict with such rules, regulations and/or orders, OnWebCenter may suspend or terminate the Service, or terminate these Terms without liability.
5.6 Deletion of Content
Upon any termination of the Service, OnWebCenter reserves the right to permanently delete from its servers any and all information and content contained in Your account or Service, including but not limited to order processing information, mailing lists, files, E-mail, and any Web pages generated by You or the Service. OnWebCenter accepts no liability for such deleted information or content.
5.7 Responsibility for Fees
Should OnWebCenter suspend a portion, but not all, of your Service due to a violation by You of any law, regulation or policy, You shall remain liable for all fees applicable to the Service as a whole. Should OnWebCenter terminate your Service, You are liable for the payment of all fees applicable to the Service up to the date of termination.
5.8 Waiver
You expressly waive any statutory or other legal protection in conflict with the provisions of this Section 5.
VI. COMMUNICATIONS
As part of the Service, You agree to receive communications from OnWebCenter regarding services available to you, and any system announcements.
VII. PRIVACY AND ACCEPTABLE USE
7.1 OnWebCenter Policies
You agree that you have received, read and understand the OnWebCenter Privacy Policy (OnWebCenter Policies ) and also the E-mail Guidelines http://OnWebCenter.com/LinktoMailGuidelines. The OnWebCenter Policies contain restrictions on Your online conduct (including prohibitions against unsolicited commercial E-mail). The current version of the OnWebCenter Policies is posted at the OnWebCenter web site as set forth in Section 1.1. OnWebCenter may change the OnWebCenter Policies upon notice to You, which notice may be provided by posting such new OnWebCenter Policies at the OnWebCenter web site.
As part of Your Registration Process, You agree that some communications are required, such as, by way of example and not limitation, customer service messages regarding Your Service, and updates to the Service. In order to opt-out of receiving such communications You must cancel the Service. You also understand and agree that the Service may include certain communications from OnWebCenter, such as service announcements and administrative messages, and that these communications are considered part of OnWebCenter membership and You will not be able to opt out of receiving them.
7.2 Prohibited Uses
In addition to those matters set forth in the OnWebCenter Policies, You shall not post, transmit, re-transmit or store material on or through any of the Services which, in the sole judgment of OnWebCenter (i) is in violation of any local, state, federal or foreign law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, "Persons") or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for Your use. You agree that you will NOT knowingly use the Service, among other things, to:
(a) upload, post, E-mail, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including but not limited to a OnWebCenter official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
(e) upload, post, E-mail, transmit or otherwise make available any content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, E-mail, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(g) upload, post, E-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
(h) upload, post, E-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) 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;
(j) violate any applicable local, state, national or international law, including but not limited to regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) "stalk" or otherwise harass another;
(l) 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;
(m) collect or store personal data about other users;
(n) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating "Crush" sites;
(o) use your home page (or directory) as storage for remote loading or as a door or signpost to another home page, whether inside or beyond OnWebCenter sites;
You agree to indemnify and hold harmless OnWebCenter from any claims resulting from the use of the Services which damages You or any other party. OnWebCenter reserves the right to investigate You, Your business, and/or Your owners, officers, directors, managers and other principals, Your sites, and the materials comprising the sites, at any time. These investigations will be conducted solely for OnWebCenter's benefit, and not for Your benefit or that of any third party. If the investigation reveals any information, act or omission, which in OnWebCenter's sole opinion, constitutes a violation of any local, state, federal or foreign law or regulation, or the OnWebCenter Policies, OnWebCenter may immediately shut down the site, and notify You of the action. You agree to waive any cause of action or claim You may have against OnWebCenter for such action.
VIII. OWNERSHIP AND SECURITY
You will receive a password from OnWebCenter to provide access to and use of Your Service, and You agree to keep Your password confidential. You are entirely responsible for maintaining the security of Your Service, and You are fully responsible for all activities that occur under Your Service and password, and any other actions taken in connection with the registered domain name, including any E-mail accounts or sub-accounts that You create for You or other individuals ("Domain E-mail Users"). You agree to immediately notify OnWebCenter of any unauthorized uses of the Service or any other breaches of security. OnWebCenter cannot and will not be liable for any loss or damage from Your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will OnWebCenter be liable, in any way, for any acts or omissions, of You or any user of Your Service to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions.
VIV. CONTENT AND SOFTWARE
9.1 Content and Conduct Rules
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services, links to other World Wide Web sites or resources and other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that You, and not OnWebCenter, are entirely responsible for all Content that You upload, post, transmit or otherwise make available via the Service. The Content must comply with these Terms, including applicable OnWebCenter Policies, and any applicable law or regulation.
9.2 Content Ownership
OnWebCenter does not claim ownership of the Content You place on Your Service. By submitting Content to OnWebCenter for inclusion on Your Service, You grant OnWebCenter and its successors and assigns, the world-wide, royalty-free, and non-exclusive license under Your copyrights and other intellectual property rights, if any, in all material and content displayed in Your website to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any OnWebCenter property. You also grant OnWebCenter the right to maintain such content on OnWebCenter's servers during the term of these Terms and to authorize the downloading and printing of such material, or any portion thereof, by end-users for their personal use. This license exists only for as long as You continue to be a Service customer and terminates when Your Service is terminated.
You acknowledge that OnWebCenter does not pre-screen Content, but that OnWebCenter and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, OnWebCenter and its designees shall have the right to remove any Content that violates these Terms, including any applicable OnWebCenter Policies, is illegal, or is otherwise objectionable as determined in OnWebCenter's sole discretion. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
9.3 OnWebCenter Proprietary Rights and Software
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content available from OnWebCenter for the Service or information presented to You through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by OnWebCenter, You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the such Content, the Service or the Software, in whole or in part.
OnWebCenter grants to You a personal, non-transferable and non-exclusive right and license to use the object code of its Software only on a server controlled by OnWebCenter for the sole purpose of using the Service; provided that You do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided or authorized by OnWebCenter for use in accessing the Service.
You may not use web pages or parts of web pages generated by means of the Software, other than Content that originates from and is proprietary to You, on any server other than the servers controlled by OnWebCenter without OnWebCenter's express written agreement. You also acknowledge and agree that the Software is intended for access and use by means of web browsing software, and that OnWebCenter does not commit to support any particular browsing platform. OnWebCenter reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to You. If any revision or modification to the Software materially changes Your ability to conduct business, Your sole remedy is to cancel Your Service.
With respect to any elective, additional software that may be made available by OnWebCenter in connection with the Service, if You elect to download or access such additional software, You understand that You may have to agree to additional terms and conditions before You use such software.
X. OnWebCenter MERCHANT SOLUTIONS
10.1 E-Commerce (Store)
With OnWebCenter Merchant Solutions, You can use the Service to facilitate the creation and maintenance of an interactive online store ("Store") for the sale of goods and services. You acknowledge and agree that You will be solely responsible for all goods and services offered at and sold through Your Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with Your account or password. Certain Stores may be subject to additional requirements. You agree that Your use of the Service and Your Store will be in compliance with the Store Guidelines located at http://OnWebCenter.com/ linktostoreguidelines and any applicable laws and regulations at all times. You agree to display in Your Store, Your contact information, including but not limited to Your company name, address, telephone number, fax number and E-mail address. You also agree to update such information to keep it true, accurate, current and complete.
10.2 Representations and Warranties
You represent and warrant that You have full power and authority under all relevant laws and regulations: (a) to offer and sell the goods and services offered at the Store, including, but not limited to, holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at the Store; (b) to copy and display the materials used or displayed at the Store; and (c) to provide for credit card payment and delivery of goods or services as specified at the Store.
10.3 Suspension or Termination of Store
In addition to that right set forth in Sections 5.3 & 5.4, OnWebCenter reserves the right to terminate Your Service, or refuse to host or continue to host any Store which it believes, in its sole discretion: (a) has caused a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; or (b) has become the subject of a government complaint or investigation. Additionally, OnWebCenter reserves the right to review and remove any Store at any time for non-compliance with these Terms.
10.4 Merchant Information
OnWebCenter maintains information about You and the Store on OnWebCenter servers, including, but not limited to, Your Account Information ("Merchant Information"). You agree that OnWebCenter may disclose Merchant Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce these Terms; (d) to respond to claims that You or the Store is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of OnWebCenter or others; provided, however, that nothing in this Section shall impose a duty on OnWebCenter to make any such disclosures.
10.5 Technical Access
You acknowledge and agree that technical processing of Merchant Information is and may be required: (a) for the Service to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Service; or (d) to conform to other, similar technical requirements. You also acknowledge and agree that OnWebCenter may access Your account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.
10.6 Your Privacy Policy
You agree (a) to post a privacy policy in Your Store that, at a minimum, discloses any and all uses of personal information that You collect from users; (b) to provide a hypertext link to Your privacy policy on the home page of Your Store and on all pages where You collect personal information from users, including but not limited to all check out pages; and (c) to use personal information only as expressly permitted by Your privacy policy. You agree to indemnify and defend OnWebCenter from and against any and all claims stemming from Your failure to comply with this provision and/or Your failure or refusal to abide by the terms and provisions of any applicable Privacy Policies.
10.7 Sale and Assignment of Stores
Notwithstanding Section 17 below, You are permitted to sell Your Store to a third party, provided that all of the following occur: (a) You assign, in accordance with Section 25 below, all rights and obligations under these Terms to such third party receiving the Store, (b) You give prior written notice to OnWebCenter, (c) You provide to OnWebCenter evidence that such third party has agreed to these Terms as a permitted assignee, and (d) such third party assignee has provided OnWebCenter with all information requested by OnWebCenter, and such information is complete and accurate. Should You attempt to sell a Store or assign these Terms in violation of this Section 10.7, such attempt will be null and void, and You will remain responsible for all obligations and liabilities under these Terms, Your Store, and the Service.
XI. OnWebCenter E-MAIL/COLLABORATION SOLUTIONS
11.1 Service Description
E-Mail/Collaboration Solutions allows You to register a domain name and to create web-based or pop E-mail accounts for the purpose of sending and receiving E-mail at the domain name registered by You. If you have an E-Mail/Collaboration Solutions product You can create E-mail sub-accounts for Domain E-mail Users so that they may send and receive E-mail with selected E-mail addresses. You expressly agree that any violation of these Terms may result in termination of any and all E-mail accounts, as determined in OnWebCenter's sole discretion. OnWebCenter expressly assumes no liability for any losses incurred due to Domain E-mail User activities.
11.2 Domain E-mail Users
If You are a Domain E-mail User, You agree that Your use of Your E-mail sub-account is also subject to these Terms, and the E-Mail/Collaboration Solutions Additional Terms of Service (http://OnWebCenter.com/Link to mailtermsofservice ), and that Your violation of these Terms may result in termination of Your sub-account, or the entire Service, as determined in OnWebCenter's sole discretion. OnWebCenter expressly assumes no liability for any losses incurred by You due to Domain E-mail User activities. Domain E-mail Users who are assigned web-based E-mail sub-accounts may use their ID's to access the Calendar, Address Book, Tasks (collectively "CM") in conjunction with their E-Mail/Collaboration Solutions E-mail account. Information residing in a Domain E-mail User's CM belongs to the Domain E-mail User. Information residing in the separate E-Mail/Collaboration Solutions account belongs to You. You may edit preferences, settings, add or delete E-mail addresses, read or send E-mail, monitor Domain E-mail User behavior and control access to certain areas on the E-Mail/Collaboration Solutions account.
XII. OnWebCenter DOMAIN SOLUTIONS
12.1 For OnWebCenter Domain Solutions, the Service includes assisting You in acquiring or moving a domain name (i.e., web address).
12.2 If You register a new domain name in conjunction with any Service, the following terms also apply:
(a) OnWebCenter has chosen an ICANN accredited registrar (Registrar) for .com, .net, .org, .biz, .info, .ca and .us domain names, to provide domain name registration services. You hereby authorize OnWebCenter to acquire Your selected domain name from Registrar. You understand that You are creating a separate contractual relationship between You and Registrar, and that You, and not OnWebCenter, are responsible for all fees, liability, and obligations in connection with that relationship. Until the Service is cancelled or otherwise terminated, OnWebCenter will pay on Your behalf the domain registration/renewal fees as part of the Service. You agree that Your obligations to indemnify under "Indemnity" in these Terms includes any claim or demand associated with Your domain name, any domain name pre-registration services provided through the Service, or the Registrar terms and conditions.
(b) You will be listed as the registrant and administrative contact in connection with Your domain name, unless You choose another registrant and administrative contact. If You choose a registrant and administrative contact other than Yourself, such person(s) must enter into an agreement directly with the Registrar and, additionally, will be bound by this Agreement in addition to You. You hereby authorize OnWebCenter to list itself as the billing contact, technical contact and name server in connection with Your domain name and to take any actions OnWebCenter deems appropriate in those capacities. However, upon termination of the Service, OnWebCenter may immediately cease acting in those capacities and reserves the right to transfer Your account to Registrar for collection of past-due amounts. In the event of such transfer, You authorize Registrar to serve as the billing contact, technical contact and name server in connection with Your domain name, and to take any actions the Registrar deems appropriate in those capacities. Upon termination of the Service, Registrar will not be responsible for forwarding any notices, E-mails or other correspondence to You or taking any other actions in connection with Your domain name. You will be solely responsible for all ongoing fees, as well as removing OnWebCenter as the billing, technical contact and name servers in connection with Your domain name, unless OnWebCenter notifies You otherwise.
(c) You acknowledge that OnWebCenter cannot guarantee the availability of the domain name you select for your use until OnWebCenter receives confirmation of its order from Registrar, which may take several business days.
12.3 Using a pre-existing domain name.
If You have previously registered a domain name with another OnWebCenter and want to use it with the Service, You must request that the existing registrar change the name servers for the domain name as designated by OnWebCenter, on Your behalf.
PLEASE NOTE: THE EXISTING REGISTRAR WILL CONTINUE TO BE THE REGISTRAR FOR THAT DOMAIN AND YOU WILL CONTINUE TO BE RESPONSIBLE FOR ALL ONGOING FEES FOR THAT DOMAIN NAME WITH YOUR EXISTING PROVIDER, INCLUDING RENEWAL FEES. THE FEES PAYABLE TO ONWEBCENTER FOR THE SERVICE DO NOT INCLUDE REGISTRATION OR RENEWAL FEES OWED BY YOU TO YOUR EXISTING PROVIDER.
12.4 Transferring to OnWebCenter's registrar of record.
If OnWebCenter switches to another registrar of record, OnWebCenter will notify You in writing.
12.5 Verifying Your Domain Name Information.
In compliance with ICANN regulation and the INWW gTLD Terms and Conditions or the Registrar Terms and Conditions, as applicable (Mandatory Information) and in order to minimize the risk of fraud, OnWebCenter may at any time request You to verify any information required to be supplied by a registrant. If You fail to respond to any such request or fail to verify any Mandatory Information to OnWebCenter's reasonable satisfaction, within 15 days of any such request from OnWebCenter, OnWebCenter may, in its sole discretion, immediately terminate Your Service and remove any of Your materials, including Your domain name, from OnWebCenter servers.
XIII. COMPLIANCE
13.1 You represent and warrant that You are not a resident of any country or affiliated with any organization prohibited to do business within the United States. You further represent and warrant that You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. or country of residence or jurisdiction in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the Canadian or U.S. Government or any country or organization of nations within whose jurisdiction You operate or do business. You agree to comply with all applicable Canadian and non-Canadian laws, rules, regulations and orders, including but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations. You shall be responsible for determining what laws or regulations are applicable to Your use of the Services. You shall, upon the request of OnWebCenter, provide OnWebCenter assurance of Your compliance with those laws. You acknowledge that OnWebCenter exercises no control whatsoever over the content of the information passing through Your site(s) and that it is Your sole responsibility to ensure that the information You and Your users transmit and receive complies with all applicable laws and regulations and the OnWebCenter Policies.
13.2 You are responsible for charging and collecting from Your end user customers any and all applicable taxes. If You fail to impose and/or collect any tax from end users or Your other retail customers as required herein, then, as between OnWebCenter and You, You shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that You have agreed to pay or impose on and/or collect from end users or Your other retail customers, You agree to indemnify and hold harmless OnWebCenter for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from OnWebCenter due to Your failure to pay or collect and remit such tax to such authority
XIV. SUPPORT
OnWebCenter reserves the right to establish limitations on the extent of any support provided for the Service, and the hours at which it is available.
XV. INDEMNITY
You agree to indemnify and hold harmless OnWebCenter, and its parents, subsidiaries, affiliates, co-branders or other partners, officers, directors, shareholders, employees and agents, from any claim, demand, or investigation, including reasonable attorneys fees, made by any third party due to or arising out of Your Content, Your conduct, Your use of the Service, the goods or services offered or sold through Your Service, any alleged violation of these Terms, including any applicable OnWebCenter Policies, law or regulation, or any alleged violation of any rights of another, including but not limited to Your use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Your Service. OnWebCenter reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse Your indemnity obligations.
XVI. RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission of OnWebCenter.
XVII. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that OnWebCenter may establish general practices and limits concerning use of the Service.
XVIII. MODIFICATIONS TO AND DISCONTINUATION OF SERVICE
OnWebCenter reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that OnWebCenter shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Service.
XVIV. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ONWEBCENTER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) YOUR USE OF THE SERVICE, THE SOFTWARE, AND ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
(c) THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND YOU MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS.
(d) NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT (i) THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
(f) OnWebCenter assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
XX. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT OnWebCenter Limited AND ITS AFFILIATES, CO-BRANDERS OR OTHER PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ONWEBCENTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICE OR THE SOFTWARE; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (vi) ANY GOOD OR SERVICE OFFERED OR SOLD THROUGH THE SERVICE; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE OR SOFTWARE.
ONWEBCENTER'S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO ONWEBCENTER OVER THE COURSE OF THE EXISTING TERM. YOU ACKNOWLEDGE THAT ONWEBCENTER HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTHHEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
XXI. NOTICE
Notices under these Terms shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to OnWebCenter, such notices shall be addressed to support@onwebcenter.com. If to You, such notices shall be addressed to the electronic or mailing address specified when You opened Your account, or such other address as either party may give the other by notice as provided above. OnWebCenter may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to You generally on the Service.
XXII. CHOICE OF LAW AND FORUM (LOCATION OF LAWSUIT)
These Terms and the relationship between You and OnWebCenter Limited shall be governed by the laws of Texas, USA without regard to its conflict of law provisions, and specifically excluding from application to these Terms that law known as the United Nations Convention on the International Sale of Goods. You and OnWebCenter agree to submit to the personal jurisdiction of the courts located within the province of Texas. The failure of OnWebCenter to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
XXIII. FORCE MAJEURE
Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inaction's of OnWebCenter), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If OnWebCenter is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, You may cancel the Service(s), but there shall be no liability on the part of OnWebCenter
XXIV. ASSIGNMENT
Except as expressly set forth herein, You may not assign Your rights or delegate Your duties under this Agreement either in whole or in part without the prior written consent of OnWebCenter, and any attempted assignment or delegation without such consent will be void. OnWebCenter may assign this Agreement in whole or part. OnWebCenter also may delegate the performance of Services to third parties, including OnWebCenter affiliates. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
XXV. RELATIONSHIP OF PARTIES
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between OnWebCenter and You. Neither OnWebCenter nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
XXVI. NO THIRD PARTY BENEFICIARIES
OnWebCenter and You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance OnWebCenters for either party or Your customers.
XXVII. INTEGRATION AND SEVERABILITY
These Terms constitute the entire agreement between You and OnWebCenter and govern Your use of the Service, superseding any prior agreements between You and OnWebCenter (including, but not limited to, any prior versions of these Terms) pertaining to this Service. You also may be subject to additional terms and conditions that may apply when You use affiliate or other OnWebCenter services, third-party content or third-party software. If any provision of these Terms or incorporated documents is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect.
XXVIII. SURVIVAL
The provisions of Sections 3, 4, 5.6, 5.7, 5.8, 7, 8, 9, 10.1, 10.2, 10.4, 10.6, 10.7, and 11 through this Section 28 will survive any termination or expiration of these Terms.
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