Webbester Terms of Service Agreement
This Universal Terms of Service Agreement (“Agreement”) sets forth the terms and conditions of the use of our systems, software, platforms, APIs, and the use and/or purchase of our products and related services and for the purchase and/or use of any products and services acquired through Webbester from our partners and/or affiliates (collectively “Services”).
In this Agreement “You” and “Your” refer to You as the user of our Services, or any agent, employee, servant or person authorized to act on Your behalf. “We”, “Us” and “Our” refer to Webbester, Inc., as well as its subsidiaries and sister companies (“Webbester”). This Agreement explains Our obligations to You, and explains Your obligations to Us for using Our Services. These obligations are in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services.
When You use Our site, Your account (or You permit someone else to use it) to purchase or otherwise acquire access to Services or to cancel Your Services (even if We were not notified of such authorization), You signify Your agreement to the terms and conditions contained in this Agreement, along with the following policies and the applicable product agreements, which are incorporated by reference herein.
The following general policies apply to all Our Services:
Term of Agreement; Modification.
You agree that Webbester may, in its sole and absolute discretion, modify this Agreement and the Services it offers to You from time to time and that such modifications are effective immediately upon posting to this site. Your use of the site or Services, after such changes or modifications have been made, constitutes Your agreement to be bound by this Agreement as last revised. If You have purchased Services from Webbester, the terms and conditions of this Agreement shall continue in full force and effect, including any changes made to this Agreement, as long as You take advantage of and use the Services.
Eligibility & Authority.
Our site and Services are available only to users who can form legally binding contracts under applicable law. By using this site and/or the Services, You represent and warrant that you are at least eighteen (18) years of age and not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction.
If You are entering this Agreement on behalf of a corporate entity, You represent and warrant that You have legal authority to bind such corporate entity to the terms and conditions contained in this Agreement (and those additional agreements and policies incorporated by reference), in which case “You”, “Your” will also refer to such corporate entity. If, after acceptance of this Agreement, We find that You do not have the legal authority to bind said corporate entity, You will be personally responsible for the obligations contained in this Agreement and any/all related agreements that You enter into based on the Services You use, including but not limited to the payment obligations. Webbester shall not be liable for any loss or damage resulting from Our reliance on any instruction, notice, document or communication reasonably believed by Us to be genuine and originating from an authorized representative of Your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, We reserve the right (but undertake no duty) to require additional authentication from You. You further agree to be bound by the terms of this Agreement, and any other agreement and/or policies required by the Services purchased, for transactions entered into by You, anyone acting as Your agent and anyone who uses Your account or the Services, whether or not authorized by You.
Accounts; Accurate Information; Transfer of Data Abroad.
Accounts & Accurate Information. In order to access some of the features of this site or use some of the Services, You will have to create an Account. You represent and warrant that all information You submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. You further agree to maintain accurate information by providing updates to Us, as needed, while You are using the Services. You agree that You will notify Webbester within five (5) business days of any change in the information You provided as part of the application and/or registration process and as required by Your Account. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Webbester to determine the validity of information provided by You will constitute a material breach of this Agreement.
If We have reason to believe that Your Account information is untrue, inaccurate, not current, misleading or incomplete, We reserve the right, in Our sole and absolute discretion, to suspend or terminate your Account and any Services.
You are solely responsible for the activity that occurs on Your Account, whether authorized by You or not, and You must keep your Account information secure, including without limitation Your customer username/login, support pin code, password, API key (if any) and any/all content which might include payment details.
You must notify Webbester immediately of any breach of security or unauthorized use of Your Account. We will not be liable for any loss You incur due to any unauthorized use of Your Account. You, however, may be liable for any loss We or others incur caused by Your Account, whether caused by You, or by an authorized person, or by an unauthorized person. Further, You agree that We may charge You administrative fees equal to $50 (US Dollars) per hour for Our time spent in relation to said matter, regardless of whether or not We return control over the Account and/or domain names in question to You.
Transfer of Data Abroad. If you are visiting this Site and/or using Our Services from a country other than the country in which Our servers are located, Your communications with Us may result in the transfer of information (including Your Account information) across international boundaries. By visiting this Site, using Our Services and communicating electronically with Us, You consent to such transfers.
Availability of Website & Services.
We shall use commercially reasonable efforts to attempt to provide this site, the Services available to purchase on Our site and Our Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that We undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that We have no control over the availability of this Site or Services on a continuous or uninterrupted basis, and that We assume no liability to You or any other party with regard to such, including but not limited to loss of revenue.
From time to time, Webbester may offer new Services (limited preview services or new features to existing Services) in a pre-release version. New Services, new features to existing Services or limited preview services shall be known, individually and collectively, as “Beta Services”. Beta Services, unless otherwise exempted, are subject to the following:
If You elect to use any Beta Services, then your use of the Beta Services is subject to the following terms and conditions: (i) You acknowledge and agree that the Beta Services are pre-release versions and may not work properly; (ii) You acknowledge and agree that Your use of the Beta Services may expose You to unusual risks of operational failures; (iii) The Beta Services are provided as is, so We do not recommend using them in production or mission critical environments; (iv) We reserve the right to modify, change, or discontinue any aspect of the Beta Services at any time; (v) Commercially released versions of the Beta Services may change substantially, and programs that use or run with the Beta Services may not work with the commercially released versions or subsequent releases; (vi) Webbester may limit availability of customer service support time dedicated to support of the Beta Services; (vii) You acknowledge and agree to provide prompt feedback regarding Your experience with the Beta Services in a form reasonably requested by Us, including information necessary to enable us to duplicate errors or problems you experience. You acknowledge and agree that we may use Your feedback for any purpose, including product development purposes. At Our request You will provide Us with comments that We may use publicly for press materials and marketing collateral. Any intellectual property inherent in Your feedback or arising from Your use of the Beta Services shall be owned exclusively by Webbester; (viii) You acknowledge and agree that all information regarding Your use of the Beta Services, including Your experience with and opinions regarding the Beta Services, is confidential, and may not be disclosed to a third party or used for any purpose other than providing feedback to Webbester; (ix) the Beta Services are provided “as is”, “as available”, and “with all faults”. To the fullest extent permitted by law, Webbester disclaims any and all warranties, statutory, express or implied, with respect to the Beta Services including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
Webbester offers, as part of the Services available to You, products and/or services from third parties. These products and/or services are subject to the terms of this Agreement, including any additional policies and agreements required, and this Agreement controls as between You and Webbester. Nothing contained in any agreement executed between You and a third party provider shall eliminate, reduce or add to the obligations of Webbester as described herein.
All paid Services are non-refundable, unless otherwise specified.
The account panel associated with Your Account (“Account Panel”) enables You to purchase, renew, extend, suspend or cancel Service(s). You acknowledge and agree that You will not use the Account Panel to abuse and/or overload any of Our Systems or Services or any API. Abuse of the Account Panel will be determined in Our sole and absolute discretion. It includes but is not limited to repetitive, high volume requests, inquiries, calls or other excessive use or abuse of Our Systems or Service(s) or any API. You further agree to abide by such guidelines on acceptable use of Our Services (and/or the Account Panel) as set forth by Us, which may change at any time in Our sole and absolute discretion. In addition to any other right to terminate, Webbester specifically has the right to immediately terminate Your Account, without notice or right to cure, in the event that You violate this term.
Acceptable Use Policy (AUP).
You acknowledge and agree to the following with respect to all of Our Services:
A. You will use all Services for lawful purposes only and You will comply with the terms of this Agreement and any other agreements you have entered into by virtue of purchasing or using Our Service(s) in addition to all applicable local, state, national and international laws, rules and regulations.
B. You will not collect or harvest (or permit anyone else to collect or harvest) any user content (as defined below) or any non-public or personally identifiable information about any other user or any other person or entity without their express permission.
C. You will NOT use our site or Services in a manner (as determined by Us in our sole and absolute discretion) that:
- Violates the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government and/or international laws or customary industry acceptable use standards;
- Promotes, encourages or engages in child pornography or the exploitation of children;
- Promotes, encourages, engages or displays cruelty to humans or animals;
- Promotes, encourages or engages in terrorism, violence or hatred against people, animals or property;
- Transmits any unsolicited commercial or bulk email, or engages in any activity known or considered to be spamming or Mail Bombing;
- Makes any inappropriate communication to any Newsgroup, Mailing List, Chat Facility, or another Internet Forum;
- Makes, attempts or allows any unauthorized access to Webbester website, servers, account, Your own hosting account or the account of any other customers of Webbester;
- Allows any remote code execution of malicious software through a hosting account or any APIs provided by Webbester;
- Causes denial of service attacks, port scans or other endangering and invasive procedures against Webbester servers and facilities or the servers and facilities of other network hosts or Internet users;
- Forges the signature or other identifying mark or code of any other person or engage in any activity to attempt to deceive other persons regarding the true identity of the user;
- Infringes any copyright, trademark, patent, trade secret, or other proprietary rights of any third party information;
- Contains viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware;
- Contains any kind of proxy server or other traffic relaying programs;
- Uploads unacceptable material which include: IRC bots, warez, image, file storage, mirror, or banner-ad services, topsites, streaming, Escrow, High-Yield Interest Programs (HYIP) or related sites, investment sites (FOREX, E-Gold Exchange, etc.), bitcoin miners, sale of any controlled substances without providing proof of appropriate permit(s) in advance, AutoSurf sites, Bank Debentures, Bank Debenture Trading Programs, Prime Banks Programs, lottery sites, muds / rpg’s, hate sites, hacking focused sites/archives/programs, or sites promoting illegal activities, IP Scanners, Brute Force Programs, Mail Bombers and Spam Scripts;
- Engages in or instigates actions that cause harm to Webbester or other customers. Such actions include, but are not limited to, actions resulting in blacklisting any of Our IPs by any online spam database, actions resulting in DDOS attacks for any servers, etc.;
- Reverse engineers any API or attempts to use an API to obtain confidential information;
- Circumvents an API in order to violate Webbester restrictions such as, but not limited to, accessing products and services owned by other customers, avoiding payment for Services;
- Overloads Our systems, including APIs, in any way; or
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promote, encourage or engage in the sale or distribution of prescription medication without a valid prescription.
D. You will not access Webbester Content (defined below) or User Content (also defined below) through any technology or means other than through this site itself, or as We may designate.
E. You agree to back-up all of Your User Content, including email and applicable content, so that You can access it when needed. Webbester does not warrant that We back-up any account, User Content and/or email and applicable content, and You agree to accept as a risk the loss of any and all of Your User Content.
F. You agree to provide government-issued photo identification and/or government-issued business identification, plus whatever else We deem required and necessary, in order to verify Your identity.
Webbester reserves the right to refuse Services to anyone upon Our discretion. Any material that in Webbester’s judgment is either obscene or threatening is strictly prohibited and will be removed from Webbester servers immediately with or without prior notice and may lead to possible warning, suspension or immediate account termination with no refund.
You agree that We have the sole right to decide what constitutes a violation of the AUP described above as well as what is the appropriate severity of any corrective action to be applied. In the event that a violation of Our AUP is found, Webbester will take corrective action upon Our own discretion and will notify You. Webbester’s decision in such case is binding and final, and cannot be a subject of a further change. Webbester cannot and shall not be liable for any loss or damage arising from Our measures against actions causing harm to Webbester or any other third party.
You further agree to the product and service specific AUPs which are incorporated herein by reference:
Acceptable Use Policy — Webbester Acceptable Use Policy for web hosting clients
Webbester Content; User Content.
In addition to the general rules above, the provisions in this section apply specifically to Your use of Webbester Content and User Content posted to Webbester’s site (i.e. those sites which We directly control or maintain). The applicable provisions are not intended to and do not have the effect of transferring any ownership or licensed rights (including intellectual property rights) You may have in content posted to Your websites.
Webbester Content. Except for User Content, with respect to all content on this site and the Services We offer, all right, title and interest in and to all (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“IP rights”) are owned by Webbester, its licensors, and/or where applicable its partners and affiliates, and You agree to make no claim of interest in or ownership of any such IP rights. You acknowledge that no title to the IP rights is transferred to You, and that You do not obtain any rights, express or implied, in the Services, other than the rights expressly granted in this Agreement.
Webbester Content is provided to you “as is”, “as available” and “with all faults” for Your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without Our express prior written consent. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. We reserve all rights not expressly granted in and to the Webbester Content, this site, Our Services, and this Agreement do not transfer ownership of any of these rights.
User Content. Some of the features of Our site(s) or the Services may allow users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos, (c) reviews, rankings and/or product ratings (“User Reviews”) (collectively “User Content”). User Content also includes all content submitted through your Account. By posting or publishing User Content to this site or to the Services We offer, You represent and warrant to Us that (i) You have all necessary rights to distribute User Content via this site or via the Services, either because You are the author of the User Content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party.
Security. You agree not to circumvent, disable or otherwise interfere with the security-related features of this site or Our Services (including without limitation those features that prevent or restrict use or copying of any Webbester Content or User Content) or enforce limitations on the use of this site or Our Services, the Webbester Content or the User Content therein.
Webbester’s Use of User Content.
The provisions in this section apply specifically to Webbester’s use of User Content posted to Our websites (i.e., those sites which Webbester directly controls or maintains). The applicable provisions are not intended to and do not have the effect of transferring any ownership or licensed rights (including intellectual property rights) You may have in content posted to Your hosted websites.
In General. You shall be solely responsible for any and all of Your User Content or User Content that is submitted through Your Account, and the consequences of, and requirements for, distributing it.
User Submissions & User Reviews. You acknowledge and agree that:
- Your User Submissions and/or User Reviews are entirely voluntary.
- Your User Submissions and/or User Reviews do not establish a confidential relationship or obligate Us to treat Your User Submissions as confidential or secret.
- Webbester has no obligation, either express or implied, to develop or use Your User Submissions or User Reviews, and no compensation is due to You or to anyone else for any intentional or unintentional use of Your User Submissions or User Reviews.
- Webbester may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
Webbester shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions and/or User Reviews posted to Our site(s), and shall be entitled to the unrestricted use and dissemination of any User Submissions or User Reviews posted to Our site(s) for any purpose, commercial or otherwise, without acknowledgment or compensation to You or to anyone else.
User Content (Other Than User Submissions/User Reviews). If You have a website or other content hosted by Us, You shall retain all of Your ownership or licensed rights in User Content.
By posting or publishing User Content to this site or through Our Services, You authorize Us to use the intellectual property and other proprietary rights in and to Your User Content to enable inclusion and use of the User Content in the manner contemplated by this Agreement. You hereby grant Webbester a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform Your User Content in connection with this site, the Services and Webbester’s (and Webbester’s affiliates’) business(es), including without limitation for promoting and redistributing all or part of this site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. You also hereby grant each user of this Site a non-exclusive license to access Your User Content (with the exception of User Content that you designate “private” or “password protected”) through this site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content as permitted through the functionality of this site and under this Agreement. The above licenses granted by You in your User Content terminate within a commercially reasonable time after You remove or delete Your User Content from this Site. You understand and agree, however, that Webbester may retain (but not distribute, display, or perform) server copies of Your User Content that have been removed or deleted. The above licenses granted by You in Your User Content are perpetual and irrevocable. Notwithstanding anything to the contrary contained herein, Webbester shall not use any User Content that has been designated “private” or “password protected” by You for the purpose of promoting this site or Webbester’s (or Webbester’s affiliates’) business(es).
Storage and Security.
You are entirely responsible for maintaining the confidentiality of Your Account access credentials (including but not limited to Your customer username/login, support pin code, password and API key (if any)) and Account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with Your content displayed, linked, transmitted through or stored on or hosted on Our server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your content; (ii) maintain independent archival and backup copies of Your content; (iii) ensure the security, confidentiality and integrity of Your content transmitted through or stored on Webbester servers; and (iv) ensure the confidentiality of Your password.
Webbester’s servers are not an archive and Webbester shall have no liability to You or any other person for loss, damage or destruction of any of Your content. Though some Services offered by Webbester are PCI (Payment Card Industry) compliant, they should not be utilized as such without further compliance activity with respect to Your business. Webbester shall have no liability to You or any other person for Your use of Webbester Services in violation of these terms. Further, You agree not to undertake any activities that may impact or place at risk Webbester’s ability to maintain Our PCI compliance. We reserve the right to take any action necessary to ensure Our ongoing PCI compliance status.
Webbester Non-Exclusive License; Third-Party License; Links to Third-Party Websites.
In using Our Services, You may be granted the ability to use Our software and/or third-party software that We make available for Your use. You may also choose to add and use third-party software in connection with Our Services. Moreover, We may offer third-party products and services that require You to access their website in order to complete Your purchase and/or agree to additional terms and conditions. For these situations, the following provisions apply.
Webbester Non-Exclusive License. If You have licensed software from Webbester, Webbester grants You a limited, non-exclusive, nontransferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time. You agree to not alter or modify the software. You agree You are not authorized to combine the software with any other software program, create derivative works based upon the software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
Webbester reserves all rights to the software. The software and any copies You are authorized to make are the intellectual property of Webbester. The source code and its organization are the exclusive property of Webbester and the software is protected by copyright law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the software and all rights are reserved by Webbester.
Any such software and Services are provided to You “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
Third-Party Software Use. Webbester provides some third-party software to You for easier account management. Such software is provided on an “as is” as available basis. We do not guarantee that any specific results can be obtained by using such software. Webbester does not take responsibility for any faults in such software functioning. You agree that Your use of any Webbester Services shall be used by You in accordance with the terms of any relevant third-party licenses. Your failure to abide by any third-party license may result in the immediate termination of Your Services by Webbester.
You can add and use third-party software on Your account only if it is compatible with Our servers and is approved by Webbester. Your use of any third party software is at Your own risk. Webbester does not control and therefore cannot be responsible for any third party software performance and provides no guarantees that its use will result in any particular outcome or result. Webbester will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Your use of third party software or products. Webbester reserves the right, at its sole discretion, to terminate, suspend, cancel or alter Your access to third-party software at any time.
You are solely responsible for any license and other fees required by the software providers, for using any third-party software installed on Your account apart from the initial account setup.
Links to Third-Party Websites Provided By Us. This site and the Services offered by Webbester, may contain links to third-party websites that are not owned or controlled by Us. These links include, but are not limited to, links to third-party provider services and products through the Webbester App Marketplace. Webbester assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, Webbester does not censor or edit the content of any third-party websites. By using this site or Our Services, whether provided directly by Us or by a third-party, You expressly release Webbester from any and all liability arising from Your use of any third-party website and/or services offered by them. Accordingly, Webbester encourages You to be aware when You purchase or use products/services of third-parties and to review the terms and conditions, privacy policies, and other governing documents of each other website that You may visit. As between You and Webbester, this Agreement and all of Our policies and additional terms control Our relationship with You.
If You elect to sell or resell advertising or web space to a third party then You will be responsible for the contents of that advertising and the actions of that third party. Webbester has the absolute right to reject any advertising or other third party content that is illegal, offensive, defamatory or otherwise in breach of the then current Webbester policy or agreement. Such content may result in the suspension or in the immediate termination of Your account.
Trademark or Copyright Claims.
Webbester is a service provider and respects the copyrights and other intellectual property rights of others. To the extent Webbester receives a proper notice of infringement of copyright, trademark or other intellectual property, Webbester reserves the right to access, preserve and disclose to third parties any of Your information or data (including personally identifiable information and private communications) related to a written complaint of infringement if Webbester believes in its sole discretion that such access, preservation, or disclosure is necessary or useful to respond to or otherwise address such complaint.
Webbester expressly reserves the right to terminate in appropriate circumstances an account or the access rights of a subscriber for repeated copyright infringement. Webbester also reserves the right to terminate an account or subscriber for even one instance of infringement.
If You would like to submit (a) a trademark claim for violation of a mark on which You hold a valid, registered trademark or service mark, or (b) a copyright claim for material on which You hold a bona fide copyright, please refer to Webbester’s Copyright and Trademark Policies.
No Spam; Liquidated Damages.
No Spam Policy. We do not tolerate the transmission of spam. We monitor all traffic to and from our web servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse. Customers suspected to be using Our products and services for the purpose of sending spam are fully investigated. If We determine there is a problem with spam, We will take the appropriate action to resolve the situation.
We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications. This can include, but is not limited to, the following:
- Email Messages
- Newsgroup postings
- Windows system messages
- Pop-up messages (aka “adware” or “spyware” messages)
- Instant messages (using AOL, MSN, Yahoo or other instant messenger programs)
- Online chat room advertisements
- Guestbook or Website Forum postings
- Facsimile Solicitations
- Text/SMS Messages
We will not allow Our servers and services to be used for the purposes described above. In order to use Our products and services, You must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but You must also abide by this no spam policy.
Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include a legitimate return address and reply-to address, the sender’s physical address, and a legitimate opt-out method in the footer of the email or fax that will effectively unsubscribe the recipient. Upon request by us, conclusive proof of opt-in may be required for an email address or fax number.
If We determine the services in question are being used in association with spam, We will re-direct, suspend, or cancel any web site hosting, domain registration, email boxes or other applicable services for a period deemed appropriate by Webbester. The registrant or customer will be required to respond by email to Us stating that they will cease to send spam and/or have spam sent on their behalf. We may require a non-refundable reactivation fee to be paid before the site, email boxes and/or Services are reactivated. In the event We determine the abuse has not stopped after Services have been restored the first time, We may terminate any and all Services associated with the domain name in question and, if We do, no refund will be available to You.
We encourage all customers and recipients of email generated from our products and services to report suspected spam. Suspected abuse can be reported by email or through Our Spam Abuse Complaint Center on the Web. Report abuse
Remedies, Liquidated Damages. You agree that We may immediately terminate any Account which we believe, in Our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay Us liquidated damages in the amount of $500 or $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your Account, whichever amount is greater.
Additional Reservation of Rights.
Webbester expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any account or any Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by Webbester in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by Webbester in offering or delivering any Services (including any domain name registration); (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry; (iii) to assist with our fraud and abuse detection and prevention efforts; (iv) to comply with applicable local, state, national and international laws, rules and regulations; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of Webbester, its officers, directors, employees and agents, as well as Webbester’s affiliates.
In the event that Webbester need exercise any of its rights expressed herein to investigate any potential breach or violation of the terms and conditions of this Agreement, service fees may continue to accrue on Your accounts, and You will continue to remain responsible for the payment of any service fees that accrue during the relevant period.
Billing & Payment; Currency; Termination & Cancellation Policy.
Billing and Payment. All fees for the Services shall be in accordance with Webbester’s fee schedule then in effect, the terms of which are incorporated herein by reference, and shall be due at the time You order the Services, unless otherwise noted. You may pay for Services by providing a valid credit or debit card, an electronic check (from your personal or business checking account, as appropriate), PayPal, Bitcoin, Dwolla, or any other payment method then accepted by Webbester (each a “Payment Method”); provided, however, that We may at Our option require that You pay fees through a particular payment means (such as by credit card or by wire transfer) or that You change from one payment provider to another. Charges for the Service(s) will be billed to Your chosen Payment Method as charges for “NAME-CHEAP.COM.” If You choose to pay for the Service(s) by credit card, Our payment processing service provider may, at the beginning of the payment process, pre-authorize the transaction charges against Your credit card. This process confirms both the validity of the credit card and the availability of sufficient funds to finalize the transaction. If, after commencing the payment process, You subsequently elect not to finalize Your transaction, We will clear any pre-authorized charges from Our systems and reverse the payment within two  hours. Depending on Your credit card provider and their policies, pre-authorized charges may continue to be reflected in Your credit card account details for longer than this two  hour period. All prices and fees are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. Webbester expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this site, or the relevant site of the Service, and effective immediately without need for further notice to You. If You have purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below.
IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, MOST SERVICES OFFER AN AUTOMATIC RENEWAL OPTION. THE AUTOMATIC RENEWAL OPTION WILL ATTEMPT TO AUTOMATICALLY RENEW THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD, EXCEPT FOR DOMAIN NAMES WHICH WILL RENEW FOR THE ORIGINAL SERVICE PERIOD. FOR EXAMPLE, FOR PRODUCTS OTHER THAN DOMAINS, IF YOUR LAST SERVICE PERIOD IS FOR ONE YEAR, YOUR RENEWAL PERIOD WILL BE FOR ONE YEAR. WITH THE AUTOMATIC RENEWAL OPTION, Webbester WILL ATTEMPT TO RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM THE PAYMENT METHOD YOU HAVE ON FILE WITH US AT Webbester’S THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD. PLEASE NOTE THAT RENEWAL DATES VARY BY SERVICE. FOR INSTANCE, SOME SERVICES MAY RENEW THIRTY (30) DAYS PRIOR TO EXPIRATION AND OTHERS MAY RENEW FIVE (5) DAYS PRIOR TO EXPIRATION. YOU MAY ENABLE OR DISABLE THE AUTOMATIC RENEWAL OPTION AT ANY TIME. HOWEVER, SHOULD YOU ELECT TO DISABLE THE AUTOMATIC RENEWAL OPTION AND FAIL TO MANUALLY RENEW YOUR SERVICES BEFORE THEY EXPIRE OR IF YOUR PAYMENT METHOD CHOSEN FOR YOUR AUTOMATIC RENEWAL SHOULD FAIL, YOU MAY EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, AND Webbester SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME. Webbester RESERVES THE RIGHT TO DETERMINE WHETHER A SECOND ATTEMPT AT PAYMENT WILL BE MADE SHOULD THE CHOSEN PAYMENT METHOD FAIL.
IN ADDITION, Webbester MAY PARTICIPATE IN “RECURRING BILLING PROGRAMS” OR “ACCOUNT UPDATER SERVICES” SUPPORTED BY YOUR THIRD-PARTY BILLING PROVIDER. IF YOU ARE ENROLLED IN AN AUTOMATIC RENEWAL OPTION AND WE ARE UNABLE TO SUCCESSFULLY CHARGE YOUR EXISTING PAYMENT METHOD, YOUR CREDIT CARD PROVIDER (OR YOUR BANK) MAY NOTIFY US OF UPDATES TO YOUR CREDIT CARD NUMBER AND/OR EXPIRATION DATE, OR THEY MAY AUTOMATICALLY CHARGE YOUR NEW CREDIT CARD ON OUR BEHALF WITHOUT NOTIFICATION TO US. IN ACCORDANCE WITH RECURRING BILLING PROGRAM REQUIREMENTS, IN THE EVENT THAT WE ARE NOTIFIED OF AN UPDATE TO YOUR CREDIT CARD NUMBER AND/OR EXPIRATION DATE, Webbester WILL AUTOMATICALLY UPDATE YOUR PAYMENT PROFILE ON YOUR BEHALF. Webbester MAKES NO GUARANTEES THAT WE WILL REQUEST OR RECEIVE UPDATED CREDIT CARD INFORMATION. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN YOUR ACCOUNT SETTINGS, INCLUDING BUT NOT LIMITED TO (I) SETTING YOUR RENEWAL OPTIONS AND (II) ENSURING YOUR ASSOCIATED PAYMENT METHOD(S) ARE CURRENT AND VALID. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT YOUR FAILURE TO DO SO MAY RESULT IN THE INTERRUPTION OR LOSS OF SERVICES, AND Webbester SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME.
If for any reason Webbester is unable to charge your payment method for the full amount owed for the Services provided, or if We receive notification of a chargeback, reversal, payment dispute, or are charged a penalty for any fee previously charged to your payment method, You agree that Webbester may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to You, of any domain names or Services registered or renewed on Your behalf. You also agree that all rights to and interest in and use of any Services, content and/or products purchased through Us, including all data hosted on Our systems shall be assumed by Us in satisfaction of any indebtedness by You to Us. We will reinstate Your rights to and control over these Services solely at our discretion, and subject to our receipt of the unpaid fee(s) and Our reinstatement fee, currently set at $200 (US Dollars). Webbester also reserves the right to charge You reasonable “administrative fees” or “processing fees” for (i) tasks Webbester may perform outside the normal scope of its Services, (ii) additional time and/or costs We may incur in providing its Services, and/or (iii) Your noncompliance with this Agreement (as determined by Webbester in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP action(s) in connection with Your domain name(s) and/or disputes that require accounting or legal services, whether performed by Webbester staff or by outside firms retained by Webbester; (iii) recouping any and all costs and fees, including the cost of Services, incurred by Webbester as the results of chargebacks or other payment disputes brought by You, Your bank or payment method processor. These administrative fees or processing fees will be billed to the payment method You have on file with Webbester.
If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchased the products or Services. If You signed up for an annual (or longer) payment plan, and You elected the automatic renewal option, Webbester will automatically renew Your Services when they come up for renewal and will take payment in accordance with the designated payment method at Webbester’s then current rates.
Currency. While all purchases are processed in US dollars, Webbester may provide an estimated conversion price to currencies other than US dollars. You acknowledge and agree that the pricing displayed during the checkout process is an estimate. Due to potential slight time delays between actual purchase and the payment settlement, the actual price charged may fluctuate. Accordingly, Webbester makes no representations or warranties that the actual price will be the same or substantially similar to the actual price You will pay and You waive any and all claims based upon any discrepancy between the estimate and the actual price. In addition, You may be charged VAT or additional off-shore margin and/or fees, based on the country indicated in Your billing address section. Any amounts to be charged will appear during the checkout process.
Termination & Cancellation Policy. The initial term of Your agreement with Webbester shall be as set forth in Your Order Form. The Initial Term shall begin upon commencement of the Services in the Order Form. After the Initial Term, your agreement with Webbester shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or cancelled by either party as provided in this section.
This agreement may be terminated: (i) by You when You discontinue the use of Our Services or (ii) by Webbester at any time, without prior notice, if, in Webbester’s judgment, You are in violation of any terms or conditions herein; or (iii) in Webbester’s sole judgment, Your use of the Services places or is likely to place unreasonable demands upon Webbester or could disrupt Webbester’s business operations; or (iv) by Webbester if it so determines that You are or are alleged to be violating the terms and conditions of any other agreement entered into by You and Webbester.
In the event of termination or suspension of Services under the above circumstances, You agree (a) that no pre-paid fees will be refunded to You; and (b) that Webbester may take control of any domain name associated with the terminated Services, provided such domain name was registered through the domain name registration of Webbester.
Refunds do NOT apply to Services unless otherwise specified.
In the event of termination of this Agreement caused by Your default hereunder, You shall bear all costs of termination, including any reasonable costs Webbester incurs in closing Your account. You agree to pay any and all costs incurred by Webbester in enforcing Your compliance with this section. Upon termination, You shall destroy any copy of the materials licensed to You hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, Webbester may delete all information related to You on the Services.
Webbester provides customer support to You at no additional fee for issues related to Webbester Services only. Webbester has the right to decide what is a service related issue and to charge additional fees or refuse support for non-service related issues. Any fees paid by You for providing non-service related support are non-refundable. Webbester will also require, before assistance can be given, that You verify Your identity in relation to the Account in question. We will determine, in Our sole and absolute discretion, what must be provided for verification purposes.
Unless otherwise directed by a specific Service, You can request customer support only by opening Live Chat or Ticket through the HelpDesk system located in the Customer area. Webbester will have no liability to provide customer support if it is requested in any other way apart from the HelpDesk system or the instructions specific to the Service at issue. You are solely responsible to use the appropriate HelpDesk category when opening Live Chat or posting Ticket. Webbester will have no liability to respond to tickets opened in inappropriate categories. Webbester shall not be liable for any delay in Live Chat and/or Ticket opened in inappropriate categories. You acknowledge that by asking our customer support representatives for assistance, You authorize their intervention and operation in Your account.
You must provide Webbester with all information and access to facilities that Webbester may reasonably require to provide the requested customer support. You are solely liable for performing and storing a back-up copy of data, files, hosting account and any other content prior to requesting customer support and agreeing to any interference or operation, provided by Webbester. In the event You are not satisfied with the outcome of any action You shall be solely responsible for restoring the back-up copies of Your data. You should not abuse the HelpDesk system. Abuse of the HelpDesk system includes, but is not limited to, excessive number of Live Chats and Tickets opened by a single Customer, aggressive and/or harassing behavior, repetitive use of inappropriate categories for opening Live Chats, posting Tickets, etc. Any abuse of the HelpDesk system may result in warning, HelpDesk access restrictions, account suspension or possible account termination with no refund. Webbester has the sole right to decide what constitutes abuse of the HelpDesk system.
You are responsible for security of Your Account access credentials. Webbester will not change passwords to any account. Should You need to restore access to Your account, You will need to provide Us with appropriate identification, as determined by Us in Our sole discretion, and We will initiate a password reset process for You to complete. In the event of any partnership break-up, divorce or other legal problems that includes You, You understand that Webbester will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will Webbester be liable for any losses incurred by You during this time of determination of ownership, or otherwise. You agree to defend (through counsel of Our choosing), indemnify and hold harmless Webbester from any and all claims arising from such ownership disputes. If you are required to supply or transmit sensitive information to Webbester you should take all due precautions to provide any sensitive information over a secure communication channel.
Disclaimer of Representations and Warranties.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND OUR SERVICES SHALL BE AT YOUR OWN RISK AND THAT SERVICES FOUND ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. Webbester, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Webbester, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND Webbester ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES 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 SUCH MATERIAL AND/OR DATA.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY Webbester, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS SUPPORT CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR OUR SERVICES.
Limitation of Liability; Waiver and Release.
IN NO EVENT SHALL Webbester, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) OUR SERVICES WHETHER FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT Webbester IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT Webbester WILL NOT BE LIABLE FOR ANY (I) SUSPENSION OR LOSS OF THE SERVICES; (II) INTERRUPTION OF BUSINESS; (III) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEBSITE(S) PROVIDED THROUGH OR BY THE SERVICES; (IV) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD; (V) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (IV) EVENTS BEYOND THE CONTROL OF Webbester; (VII) THE PROCESSING OF YOUR APPLICATION FOR SERVICES; OR (VIII) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR OUR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL Webbester’S TOTAL AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
NO WAIVER OF ANY PROVISION OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS IT IS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF Webbester.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge Webbester and all affiliates of Webbester, and all officers, agents, employees, and representatives of Webbester, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Services and Your acquisition and use thereof, including, but not limited to, the provision of Webbester products and/or services by Webbester and its agents and employees. Further, You agree to defend, indemnify and hold harmless Webbester and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by Webbester’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Services or Your use of the Services, including without limitation infringement or dilution by You or by another using the Services from Your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data You supplied to Webbester, including, without limitation, any misrepresentation in Your application, if applicable; (v) the inclusion of metatags or other elements in any website created for You or by You via the Services; (vi) any information, material, or services available on Your licensed Webbester website; or (vii), any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of You elsewhere. Should Webbester be notified of a pending lawsuit, or receive notice of the filing of a lawsuit, Webbester may seek a written confirmation from You concerning Your obligation to defend, indemnify and hold harmless Webbester. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Webbester shall have the right to participate in the defense of any such claim through counsel of its Own choosing. You agree to notify Webbester of any such claim promptly in writing and to allow Webbester to control the proceedings. You agree to cooperate fully with Webbester during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
U.S. Export Laws.
This Site and Our Services are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Users shall not use the Services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of Our Services may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using this site and Our Services, You agree to the foregoing and represent and warrant that You are not a national or resident of, located in, or under the control of, any restricted country; and You are not on any denied parties list; and You agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If You access this site or Our Services from other countries or jurisdictions, You do so on Your own initiative and You are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, You shall not access this site or Our Services. The obligations under this section shall survive any termination or expiration of this Agreement or Your use of this site or Our Services.
Compliance with Local Laws.
Webbester makes no representation or warranty that the content available on this site or the Services We offer are appropriate in every country or jurisdiction, and access to this site or Our Services from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this site or use Our Services are responsible for compliance with all local laws, rules and regulations.
Governing Law; Jurisdiction; Waiver of Trial By Jury.
Except as otherwise set forth in the UDRP or any similar policy with respect to any dispute regarding the Services provided under this Agreement, Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of California. You agree that any action to enforce this agreement or any matter relating to Your use of the Services must be brought exclusively in the United States District Court for the Central District of California, or if there is no jurisdiction in such court, then in a state court in Los Angeles County, State of California. You agree to waive the right to a trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement.
You agree that any notices required to be given under this Agreement by Us to You will be deemed to have been given if delivered in accordance with the account and/or, if domain related, the domain name Whois information You have provided. You acknowledge that it is Your responsibility to maintain current contact information in the account and/or domain name Whois information You have provided.
This Agreement, together with all modifications, constitutes the complete and exclusive agreement between You and Us, and supersedes and governs all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by You except by means of a written document signed by both You and an authorized representative of Us. By applying for Webbester’s Services through the online application process or otherwise, or by using the Services under this Agreement, you acknowledge that You have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
No Agency Relationship.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
Assignment and Resale.
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Webbester’s prior express written consent.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: 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, including any federal, state and local governments having or claiming jurisdiction over Webbester, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this section extends for a period in excess of thirty (30) days in the aggregate, Webbester may immediately terminate this Agreement.
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.