ACCEPTANCE OF TERMS
The CMS provides its service to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you.
DESCRIPTION OF SERVICE
The CMS currently provides users with access to a full-featured website management system (the "Service"). You also understand and agree that the service may include certain communications from the CMS such as service announcements, administrative messages and newsletters, and that these communications are considered part of your CMS subscription and you will not be able to opt out of receiving them.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that the CMS assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Service.
YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you agree to:
provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data");
maintain and promptly update the Registration Data to keep it true, accurate, current and complete;
provide true, accurate, current, complete and valid information about your method of payment (such information being the "Billing Data");
maintain and promptly update the Billing Data to keep it true, accurate, current, complete and valid. If you provide any information that is untrue, inaccurate, not current or incomplete, or if the CMS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the CMS has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Payments for your use of the Service will be automatically billed to the credit card you provide in your Billing Data. The following describes the CMS�s billing practices:
Charges are billed each month for the upcoming month�s service, based on your website plan on the billing date. Upgrading the package of your website will cause an interim transaction to occur on the date the change is made. The interim transaction will charge your card a pro-rated amount in order to compensate for the change in charges over the remainder of your billing cycle. Then, at the beginning of your next billing cycle, you will be charged the new monthly amount based on your website's plan on the billing date.
Downgrading your website plan will not initiate an interim transaction. No refunds will be given for any days remaining in your current billing cycle.
MEMBER ACCOUNT, PASSWORD AND SECURITY
You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify the CMS of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. the CMS cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not the CMS, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. The CMS does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that you feel is offensive, indecent or objectionable. Under no circumstances will the CMS be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Service to:
upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
harm minors in any way;
impersonate any person or entity, including, but not limited to, a CMS official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
upload, post, email, 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);
upload, post, email, transmit or otherwise make available any content that is sexually explicit, pornographic, or in other ways could be viewed as "adult" content;
upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
upload, post, email, 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;
upload, post, email, 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;
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 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;
collect or store personal data about other users.
You acknowledge that the CMS does not pre-screen Content, but that the CMS 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, the CMS and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. 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. In this regard, you acknowledge that you may not rely on any Content created by the CMS or submitted to the CMS using the Service. You acknowledge and agree that the CMS may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of the CMS, its owners, its users and the public. You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
The CMS does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant the CMS the following world-wide, royalty free and non-exclusive license(s), as applicable:
With respect to Content you submit or make available for inclusion on publicly accessible areas of the system, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting the specific CMS site to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or the CMS removes such Content from the Service. With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Service, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or the CMS removes such Content from the Service. "Publicly accessible" areas of the Service are those areas of the the CMS network of properties that are intended by the CMS to be available to the general public. By way of example, publicly accessible areas of the Service would include your CMS website. However, publicly accessible areas of the Service would not include portions of services intended for private communication such as E-mail or areas off of the CMS network of properties such as portions of World Wide Web sites that are accessible through links from the CMS sites but are not hosted or served by the CMS.
You agree to indemnify and hold the CMS, and its parent company, subsidiaries, affiliates, officers, agents, or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that the CMS may establish general practices and limits concerning use of the Service, including without limitation the maximum disk space or bandwidth that will be allotted on the CMS�s servers on your behalf. The CMS may enforce these limitations by restricting the software itself, or by contacting you and requiring you to either restrict usage or upgrade your website if your website is found to be outside of the normal range of use.
You agree that the CMS has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You further acknowledge that the CMS reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
MODIFICATIONS TO SERVICE
The CMS 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 the CMS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You agree that the CMS may, under certain circumstances and without prior notice, immediately terminate your CMS website, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical issues or problems, and (f) extended periods of inactivity. Termination of your CMS account includes (a) removal of access to all offerings within the Service, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring further use of the Service. Further, you agree that all terminations for cause shall be made in the CMS�s sole discretion and that the CMS shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Service. All fees paid to the CMS are non-refundable.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because the CMS has no control over such sites and resources, you acknowledge and agree that the CMS is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that the CMS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
THE CMS�S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to access the Service by any means other than through the interface that is provided by the CMS for use in accessing the Service.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE CMS 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.
THE CMS MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE 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.
ANY MATERIAL 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 DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE CMS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE CMS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE CMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) 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; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service or by posting them on their company website, blog or other corporate communications channels.
The TOS constitutes the entire agreement between you and the CMS and governs your use of the Service, superseding any prior agreements between you and the CMS. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The TOS and the relationship between you and the CMS shall be governed by the law without regard to its conflict of law provisions. You and the CMS agree to submit to the personal and exclusive jurisdiction of the courts. The failure of the CMS to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS 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 the TOS 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 the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Note: The section titles in the TOS are for convenience only and have no legal or contractual effect.
Welcome to NetBiz, Your Digital Marketing Partner
Thank you for using our products, solutions, and services ("Service or Services"). The Services are provided by NetBiz Inc. ("NetBiz"), located at 1830 Blankenship Road Suite 150, West Linn OR 97068, United States.
By clicking the "I Accept" button displayed online in our NetBiz Client Portal as a part of your ordering process or signing any document that refers to this "General Terms" Agreement, you agree to these terms and conditions (the "Agreement") governing the Services we provide you. Even if you do not use our NetBiz Portal, our non-electronic process is similar, and by using our Services, you are agreeing to these terms and conditions. Please read them carefully.
In addition to these "General Terms", we have specific Services Agreements that describe the terms or product/service requirements that will apply. Those additional terms ("Service Terms") will be available when you request a Service. Additional terms may be stated on our website, or on-line in our Client Portal, or in other documents using names such as "Agreement," "Invoice," or "Receipt," all of which are herein referred to as "Agreement(s)." Typically the additional documents will specify such details as the price, the specific NetBiz Service, and the length of time you have agreed to use the NetBiz Service (one-time purchase, month-to-month, or multiple consecutive months). These additional terms and details become part of your Agreement with us when you use the particular Service.
We refer to our General Terms of Services as our "General Terms" or "Agreement" when we are referring not only to our General Terms of Services but also to "Service Terms," Agreements, Invoices, Orders, Receipts, and Policies found in documents relating to Services that NetBiz provides to you. NetBiz may add to, delete from or modify any of these terms at any time without liability. Changes to the General Terms will not apply retroactively and will become effective 7 days after posting; however changes to functionality or those made for legal reasons will be effective immediately. Similarly, our Service Terms, as they apply to any specific Agreement, may be revised during the term of that Agreement and those revisions will not apply retroactively but will become effective 7 days after posting; however revisions to functionality, for legal reasons, or if imposed by a Third Party Provider, will be effective immediately. The revised Terms will be posted at www.netbiz.com/legal. You should look at these Terms regularly.
- Authorization. Any individual that places an order with NetBiz on behalf of another person, represents and warrants that (a) he or she is a duly authorized agent of that other person and has the authority to enter into this Agreement and to place that order on behalf of that other person, and (b) this Agreement is binding and enforceable against that other person. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT CLICK ON THE "I AGREE" BUTTON AND YOU MUST NOT AGREE TO ANY INVOICE OR CONFIRMATION. IF YOU PLACE AN ORDER WITH NETBIZ ON BEHALF OF ANOTHER PERSON AND YOU DO NOT HAVE THE AUTHORITY TO BIND THAT OTHER PERSON, YOU ALSO WILL BE PERSONALLY LIABLE TO NETBIZ UNDER THIS AGREEMENT.
- Services. Subject to your compliance with this Agreement, (a) you may from time to time purchase one or more Services from NetBiz, and (b) NetBiz will provide those Services to you in accordance with this Agreement. THE SERVICES ARE INTENDED SOLELY FOR BUSINESS AND COMMERCIAL USE, AND NOT FOR FAMILY, HOUSEHOLD OR CONSUMER USES.
- Charges and Payment of Fees, Taxes. Unless expressly provided otherwise in your Invoice, in an Agreement, or as required by law, all fees are fully earned upon payment and upon each renewal of your Service. All payments must be made in advance and once made are non-cancelable and all amounts are non-refundable.
- You agree to pay NetBiz any initial one-time fee or fees, such as a set-up fee or product fee, as well as other fees that relate to each Service as specified in your Invoice/Receipt. All initial, one-time fees are non-refundable.
- In certain situations, such as special promotional multi-month commitments, the set-up fee or other initial fees may be partially or fully waived. These situations will be detailed in your Invoice or in Agreement. In all cases, you must fulfill the terms set forth for qualification for the partial or full waiver and if you fail to fulfill the terms (for example, if you exercise an included option to change or cancel the Service prior to completing a promotional multi-month Agreement) you then agree to pay the unpaid/waived portion of the fees as well as any other fees that are due.
- If your selected NetBiz Service recurs or renews automatically and you agree to that in the related Agreement, you understand that NetBiz will not send you a new Invoice for each new term or billing period unless you specifically agree to pay a different fee. If you agree to a different Service Fee, you will do so by acknowledging that different fee in a new Invoice or by agreeing in another document such as an email or Agreement. The fees for any renewal term or recurring monthly service fee will be the amount specified in your initial Invoice or in the relevant Agreement. You agree to pay all fees as and when described in your Invoice, or if your Invoice does not specify the payment terms, then you will pay the fees as and when specified in the relevant Agreement.
- Unless stated otherwise on your Invoice or in your Services Agreement, for Services that are provided on a "month-to-month" basis, you agree to pay the Monthly Service Fee each month on the same date you opened your account. The Monthly Service Fee is due in advance of the delivery of Services. For example, if you opened your account on March 15, your Monthly Service Fee will be due on the 15th of each month thereafter until your account is terminated; the Monthly Service Fee for Services delivered from April 15 to May 14 would be due on April 15.
- Taxes. You agree to pay all sales, use, value added and other taxes (other than taxes based on NetBiz's income) related to your purchase and/or use of the Services.
- Billing and Payment. When you provide or send your credit card information or other payment information to NetBiz, that act will constitute your express authorization and instruction to NetBiz to charge that credit card or accept other payment source for all fees and other amounts due and payable to NetBiz under this Agreement. You are solely responsible for the credit card and/or payment information you provide to NetBiz, and you must promptly inform NetBiz of any change to the issuer, account number, expiration date, security code or other information necessary for NetBiz to charge that credit card or other payment source. As a Client, you may enter the NetBiz Portal to change your payment preference or update your relevant payment information. However, in doing so you are not changing your agreement to pay as originally agreed. NetBiz, at its sole discretion, may offer invoice payment terms for certain Services but even if NetBiz allows invoice payment NetBiz may, at any time with or without cause, terminate your privilege to receive Services on invoice payment terms. All payments made under this Agreement must be in US Dollars. If you are on invoice payment terms, all sums not paid when due will accrue interest at the lesser of either 1.5% per month or the maximum rate allowed by law. If you fail to pay any amount regardless of payment terms as and when due for any Service, NetBiz may cease providing that and all other Services, may engage the services of a collection agency and/or may enforce its legal remedies, and in that case, the prevailing party will be entitled to recover its reasonable attorney fees, whether incurred prior to, at trial and in any appeal or other post judgment proceeding. In addition, NetBiz may charge a reinstatement fee if, after termination, you wish to reinstate Services that were terminated due to non-payment or for any other reason.
- Term and Renewal. NetBiz provides and you purchase, the Service for the term specified in your Invoice, or if your Invoice does not specify the duration of the term, then for the duration of the term specified in the Agreement for that Service. Unless either NetBiz or you provide notice of termination to the other party in the manner described below, your Service will automatically renew on the same terms (except as described in Section 4 of this Services Agreement) for successive renewal terms. Each renewal term will be for the duration specified in your Invoice or Agreement. The fees payable for a Service for each renewal term may change as referenced in Section 4 of these General Terms, and/or as described in the Service's Agreement.
- Third Party Services. In addition to NetBiz proprietary services and products, NetBiz is an authorized reseller of goods, services and information ("Third Party Services") provided by Facebook, Google, Microsoft, Yahoo! and other suppliers that are not affiliates of NetBiz ("Third Party Suppliers"), and some of the Services may be, or may include, Third Party Services. NetBiz is a certified Google® Partner. You may review Google's "Advertiser guide: working with third parties" at http://www.google.com/adwords/thirdpartypartners/. Third Party Suppliers may require that you comply with and/or consent to terms and conditions that differ from or that are in addition to those in this Agreement regarding to their respective Third Party Services. You authorize NetBiz to accept all terms and conditions required by Third Party Services and Suppliers as necessary. When we accept such terms on your behalf NetBiz will alert you of non-compliance issues of which we are aware. Even so, you are primarily responsible for your own compliance with the terms of all Third Party Services, and you are responsible for understanding their terms and conditions of service. Any warranties related to Third Party Services are those of the Third Party Supplier, and not of NetBiz. NETBIZ IS NOT RESPONSIBLE FOR AND WILL NOT HAVE ANY LIABILITY WITH RESPECT TO ANY THIRD PARTY SERVICES. NetBiz reserves the right, in its sole discretion, to change, suspend, terminate or cancel your access to and use of Third Party Services. Without limiting the preceding, if a Third Party Supplier ceases to make any Third Party Services available to NetBiz on reasonable terms or that Third Party Supplier significantly changes its Services, NetBiz may, without penalty or premium, stop offering those Third Party Services and the Services that rely on those Third Party Services. CLIENT RELEASES NETBIZ FROM ANY LIABILITY RELATED TO OR ARISING FROM ANY THIRD PARTY SERVICES OR TO ANY THIRD PARTY SUPPLIERS.
- You own the intellectual property rights and all good will associated with your trademarks and all copyrighted works and confidential information that you deliver to NetBiz (the "Client Intellectual Property").
- b) NetBiz, the Third Party Suppliers, and their respective licensors own the intellectual property rights and all good will associated with the following (the "NetBiz Intellectual Property"): (a) their trademarks, copyrighted work, confidential information and other intellectual property and proprietary rights associated with their respective Services; and (b) all suggestions, ideas, enhancements, requests, feedback, recommendations, comments and other information that you or your agents provide to NetBiz relating to the Services (and you hereby assign all right, title, and interest in and to that information to NetBiz).
- You authorize NetBiz to: (a) disclose that you are a client of NetBiz and the Services NetBiz has provided or is providing to you; and (b) provide the Client Intellectual Property to the Third Party Suppliers and NetBiz' other contractors as necessary to fulfill our agreement to provide a Service to you.
- To the extent NetBiz delivers or makes any NetBiz Intellectual Property to you in connection with the Services, and subject to your compliance with this Agreement, NetBiz grants you a limited, nonexclusive license to use those Services and the related NetBiz Intellectual Property in the course and scope of your business during the term of your Service and as your Service may be renewed as described in Section 6 of this Services Agreement. The rights described in the preceding sentence will terminate if at any time you: (a) use the Services as a service bureau or to provide administrative services to any other person; (b) sell, resell, license, sublicense, transfer, assign, disclose, distribute or otherwise commercially exploit the Services to any other person, including your customers; (c) copy or modify the Services; (d) reverse engineer the Services; (e) access or use the Services to create goods, services, information or features that are similar to the Services or otherwise to compete with the Services. To the extent you create any derivative works of a Service or any NetBiz Intellectual Property (for example, an enhancement, revision, translation, adaptation, abridgement, condensation, expansion, collection, compilation or any other transformation of a work that is based upon a Service or any NetBiz Intellectual Property), you hereby assign to NetBiz, and NetBiz will own, all right, title and interest in and to that derivative work.
- DISCLAIMERS AND LIMITATIONS.
- ALL SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, AND YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES OR THE DOWNLOADING OF ANY MATERIAL AND/OR DATA FROM ANY SOURCE PROVIDED BY NETBIZ, A THIRD PARTY SUPPLIER, OR THEIR RESPECTIVE LICENSORS AND OTHER CONTRACTORS. NETBIZ, ON ITS OWN BEHALF AND ON BEHALF OF THE THIRD PARTY SUPPLIERS AND THEIR RESPECTIVE LICENSORS AND OTHER CONTRACTORS, EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING AND USAGE IN THE TRADE. WITHOUT LIMITING THE PRECEDING, NEITHER NETBIZ NOR THE THIRD PARTY SUPPLIERS OR THEIR RESPECTIVE LICENSORS OR OTHER CONTRACTORS WARRANT THAT THE SERVICES (a) WILL BE SUITABLE FOR OR WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; (b) WILL BE EFFECTIVE OR WILL ACHIEVE ANY PARTICULAR RESULTS OR BUSINESS OBJECTIVES; (c) WILL BE UNINTERRUPTED, TIMELY, SECURE, RELIABLE, ERROR FREE OR FREE OF VIRUSES OR OTHER HARMFUL OR DISABLING CODE OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; OR (d) WILL INCLUDE OR GENERATE INFORMATION THAT IS ACCURATE OR RELIABLE. TO THE EXTENT ANYONE AT NETBIZ PURPORTS TO MODIFY THESE LIMITATIONS, YOU MAY RELY ON THAT MODIFICATION ONLY IF IT IS DESCRIBED IN REASONABLE DETAIL IN WRITING AND HAS BEEN SIGNED BY AN OFFICER OF NETBIZ. [SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND SOME OF THE EXCLUSIONS IN THIS AGREEMENT MAY NOT APPLY TO YOU.]
- Neither NetBiz, the Third Party Suppliers nor their respective licensors and other contractors will have any liability, and they expressly disclaim any responsibility, for any losses, damages, liabilities, costs or expenses, resulting from or relating to: (a) access delays or access interruptions; (b) data non-delivery or data miss-delivery; (c) force majeure events; (d) the unauthorized use or misuse of your log-on information; (e) errors, omissions, or misstatements in, or your inability to use, any Services; (f) the deletion of or failure to store email messages; (g) the development or interruption of your website; and (h) limitations, incompatibilities, defects, or other problems inherent in xml, xkms, or any other standard that is not controlled solely by NetBiz.
- TO THE EXTENT PERMITTED BY LAW, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE YEAR AFTER THAT CLAIM OR CAUSE OF ACTION AROSE OR THAT CLAIM WILL BE FOREVER BARRED.
- NEITHER NETBIZ, THE THIRD PARTY SUPPLIERS NOR THEIR RESPECTIVE LICENSORS OR CONTRACTORS WILL BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, COST OF CURE OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF NETBIZ HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. NETBIZ'S ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY OR OTHERWISE, WITH RESPECT TO ANY SERVICE, NETBIZ'S NEGLIGENCE AND/OR ITS BREACH OF THIS AGREEMENT, IS LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE GIVING RISE TO THE CLAIM DURING THE 12 MONTHS PRECEEDING THE DATE THE CLAIM AROSE. [TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY DESCRIBED IN THIS SECTION, NETBIZ'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN THOSE STATES.]
- None of the preceding disclaimers, exclusions or limitations will apply to (a) your failure to pay the fees and other charges for the Services, and any attorney fees incurred by NetBiz under Sections 4 and/or 5 of this Services Agreement in connection with the collection of those amounts; (b) either party's breach of Section 8 (Ownership) or Section 9 (Licenses) of this Services Agreement; or (c) amounts paid or payable to unrelated third parties under Section 12 (Indemnity) of this Services Agreement and related defense costs.
- NetBiz will release, indemnify, defend and hold harmless you and your agents, employees, officers, directors, shareholders, affiliates and assigns (collectively, the "Client Indemnitees") from all liabilities, claims, damages, costs and expenses, including reasonable attorney fees and expenses (each, an "Indemnified Loss"), relating to or arising out of (a) NetBiz's breach of this Agreement [or negligence], and (b) infringement of the Services (other than Third Party Services) of any copyrights.
- You will release, indemnify, defend and hold harmless NetBiz, the person providing the Third Party Services and any of their licensors, contractors, agents, employees, officers, directors, shareholders, affiliates and assigns (collectively, the "NetBiz Indemnitees") from all Indemnified Losses, relating to or arising out of (a) your breach of this Agreement or negligence; (b) a claim by any person providing Third Party Services; (c) the inclusion of any other person's trademarks in any metatags or other elements of a Service; (d) any comments, documents or other content that any persons posts on your website or any other public electronic forum associated with you, your goods, services or other products; or (e) any goods, services, information, material or content on your website.
- As a condition to receiving the protections described in this Section 11, the person entitled to those protections (the "Indemnitee") must (a) provide the party obligated to provide those protections (the "Indemnitor") prompt notice of any claim that might give rise to an Indemnified Loss (except that failure to give prompt notice will not limit, impair or otherwise affect the Indemnitee's rights unless the Indemnitor is prejudiced by that failure, and then only to the extent of the prejudice); and (b) give the Indemnitor full and complete authority (including settlement authority), information and assistance for the defense of that claim; and neither party will settle any such claim without the other party's prior written consent except that the Indemnitor may enter into a settlement agreement as long as it includes a full and final release of all claims against the Indemnitee, does not admit fault or liability by the Indemnitee and does not impose any continuing obligations on the Indemnitee.
- Suspension; Termination.
- If you breach any part of this Agreement, NetBiz may, in its sole and exclusive discretion, immediately and without notice to you, disable your log in information or suspend making the Services available; however, any fees payable for those Services will continue to accrue for those suspended Services, and you will continue to pay all fees that accrue during the period of suspension.
- You may terminate this Agreement as it applies to any or all Services if NetBiz breaches any of its obligations, representations or warranties under this Agreement and fails to cure that breach within 30 days following the date NetBiz receives written notice describing in reasonable detail the nature of that breach.
- NetBiz may terminate this Agreement as it applies to any or all Services immediately without notice if you or any of your agents breach NetBiz's acceptable use of Services as set forth in this Agreement, including the policy found in Section 8 (Ownership) or Section 9 (Licenses) of this Services Agreement or any other provision of this Agreement if the breach is incapable of cure. NetBiz may terminate the Agreement as it applies to any or all Services if you or any of your agents breach any other provision of the Agreement and fail to cure that breach within 30 days following the date NetBiz sends you written notice describing in reasonable detail the nature of that breach.
- Certain Third Party Services may have additional requirements regarding termination; those requirements may be described in the applicable Agreement or in documentation provided or made available by the Third Party Suppliers.
- Effect of Termination. Unless otherwise specified in your Invoice or Agreement, you will not receive a refund of any amounts you have paid if this Agreement is terminated, and you may incur additional fees as described in the Agreement for the affected Services (e.g., when a fee is payable in installments). If the Agreement terminates as a result of your breach of the Agreement, you will pay, in addition to all outstanding fees, the costs of that termination, including reasonable costs that NetBiz incurs in closing your account and terminating your receipt of the Service(s). You will pay those fees and costs within 30 days of your receipt of an invoice from NetBiz for those costs. Upon termination of the Agreement for any reason, you will destroy the original and all copies of the works, materials and other deliverables that NetBiz provided or made available to you under this Agreement or that Addendum, and NetBiz may delete the information in its possession or under its control related to you.
- Your Representations, Warranties and Promises. You represent, warrant and agree that: (a) you have the power and authority to enter into and perform your obligations under the Agreement, (b) you are of legal age to enter into the Agreement; (c) your use the Services will not directly or indirectly (i) infringe or misappropriate the intellectual property, publicity or legal rights of any other person; or (ii) violate any court order, contract or other obligation by which you are bound; (d) you will comply with the Policies and the other provisions of the Agreement; and (e) you will comply with applicable law.
- Notices. Except as expressly provided otherwise in this Agreement, all notices to NetBiz must be in writing and delivered via overnight courier or certified mail, return receipt requested, to NetBiz, Inc., Attention: Accounting, 1830 Blankenship Road Suite 150, West Linn OR, USA. NetBiz may deliver notices to you by sending them to the mailing address or email address that you provided when you placed an order, provided your Billing information, or opened an account with NetBiz, and as you may have updated that information.
- Announcements. When sending information to you, NetBiz intends to comply with Federal and State laws relating to unwanted communications. Unless you comply with any opt-out or unsubscribe options NetBiz may provide, you authorize NetBiz to contact you at the telephone number or email or postal address you provided to NetBiz (as you may update that information) regarding information that NetBiz believes may be of interest to you. Notices, messages, announcements, and communications may include transactional or relationship content, commercial content, telephone solicitations, and other information such as marketing suggestions, account suggestions, changes, upgrades, new products, or services.
- Interpretation. Section and paragraph headings are for convenience only and do not affect the meaning or interpretation of this Agreement. You have had the opportunity to have the Agreement reviewed by your attorneys; therefore, no rule of construction or interpretation that disfavors NetBiz or that favors you will apply to the interpretation of this Agreement. Instead, this Agreement will be interpreted according to the fair meaning of its terms. The term "affiliate" means, with respect to a named individual or entity, any individual, association, partnership, corporation or other entity controlling, controlled by, or under common control with the named individual or entity on the effective date of this Agreement or at any time following that effective date. The term "and/or" means each and all of the persons, words, provisions or items connected by that term; i.e., it has a joint and several meaning. The term "applicable law" or words of similar import mean the laws, regulations, conventions, treaties, administrative rules, ordinances, court orders and other legal requirements of any governmental authority that has jurisdiction over or governs any person. The term "business day" means Monday through Friday excluding legal holidays observed by the United States Government. Any other reference to a "day" means a calendar day. The term "control" means the power to direct or cause the direction of the management and policies of an individual or entity, whether through the ownership of voting securities, by contract, or otherwise. The words "includes" and "including" are not limiting in any way and mean "includes or including without limitation." The words "must", "shall" and "will" are synonyms, and each means the action is mandatory rather than permissive. The word "person" includes individuals, corporations, partnerships, limited liability companies, co-operatives, associations and other natural and legal persons. To the extent a person's acceptance, consent, approval, authorization, determination, specification or similar action is required or permitted under any provision in this Agreement, that person may grant, withhold or condition that consent, approval, authorization, determination or specification in its sole discretion unless expressly stated otherwise in that provision.
- Governing Law; Jurisdiction and Venue. This Agreement and any disputes under the Agreement or related in any way to the Services will be governed in all respects by and construed in accordance with the laws of the State of Oregon and, to the extent applicable, the federal laws of the United States of America, excluding their conflict of laws rules and excluding the United Nations Convention on Contracts for the International Sale of Goods. You agree (a) to submit to the jurisdiction of and venue in the state and federal courts located in the State of Oregon and (b) not to initiate any legal proceeding against NetBiz in any other jurisdiction. BOTH PARTIES WAIVE ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT.
- Export Restrictions. You will not import, export, or re-export directly or indirectly, any Service in violation of applicable law.
- US Government Users. If NetBiz provides any Service to a US Government User, that Service and any software and/or accompanying documentation for that Service are "commercial items," as those terms are defined in 48 CFR 2.101, they consist of "commercial computer software" and "commercial computer software documentation," as those terms are used in 48 CFR 12.212 and they are provided to the US Government only as commercial end items. All US Government entities that have the right to use the Services will have only those rights described in this Agreement.
- Force Majeure. Neither party will be deemed in default under this Agreement, nor will it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations under this Agreement due to causes beyond its control including earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government; or any other cause or circumstance, whether of a similar or dissimilar nature to the preceding, beyond the reasonable control of the affected party, provided that the party relying upon this section (a) gives the other party prompt written notice of that situation and, in any event, within five days of its discovery of that situation; and (b) takes all steps reasonably necessary under the circumstances to mitigate the effects of that force majeure event. If a force majeure event extends for a period in excess of 30 days, either party may immediately terminate the Agreement related to the affected Service.
- Amendments & Changes to the General Terms. NetBiz may revise, add to, delete from, or modify these terms at any time without liability. Changes to the General Terms will not apply retroactively and will become effective 7 days after posting; however changes to functionality or those made for legal reasons will be effective immediately. The General Terms, as they apply to any specific Agreement, may be revised during the term of that Agreement and those revisions will not apply retroactively but will become effective 7 days after posting; however revisions to functionality, for legal reasons, or if imposed by a Third Party Provider, will be effective immediately. The revised Terms will be posted at www.netbiz.com/legal. You should look at these Terms regularly. Shortly before the deadline for notice of termination described in Section 6 of this Services Agreement, you should review the current versions of the General Terms, any relevant Agreement, and the Policies that are available on the NetBiz website to determine if you are willing to be bound by those documents. If you are not willing to be bound by any revision to those posted documents, you must prevent renewal of your Service by notifying NetBiz in the manner described in the Agreement.
- Miscellaneous. NetBiz is one of your independent contractors. It is not your partner, employee or joint venturer. Except for the Client Indemnitees and the NetBiz Indemnitees, there are no intended third party beneficiaries of this Agreement. You will not assign or transfer the Agreement or any of your rights or obligations under this Agreement without NetBiz's prior written consent. The Agreement will inure to the benefit of and be binding upon each permitted successor or assigns of the parties. Each provision in the Agreement will be treated as a separate and independent clause, and the unenforceability of any one clause will not impair the enforceability of any other clause in this Agreement. Moreover, if any provision of the Agreement is for any reason be held to be void or unenforceable as written, the parties intend that (a) such provision of the Agreement be enforced to the extent permitted by law, and (b) the balance of the Agreement remain in full force and effect. No waiver of any provision of the Agreement will be effective unless it is in writing and signed by an authorized officer of NetBiz, and either party's granting of a waiver on one occasion will not affect its right to enforce that provision or any other provision of the Agreement at a later time.
- Entire Agreement. The Agreement contains the entire understanding and agreement of the parties with respect to the matters it addresses, and it supersedes all previous agreements, statements and promises made by either party that are not contained in the Agreement.