| Welcome to www.WebsiteESP.com, ("Website ESP"), a California company,
who provides the Web Site and all services offered through the Web Site
(collectively the "Site"), subject to the following Web Site Access
Agreement ("Agreement"). Your access to and use of the Site is governed by
this Agreement. As used in this Agreement "Website ESP" "We," "Us," or
"Our" refers to Website ESP, "You" or "Your" refers to you, a small
business owner subscribing to this Site.
TABLE OF
CONTENTS
1. ELECTRONIC TRANSACTIONS
2. DESCRIPTION OF SERVICE
3. LICENSE TO USE THE SITE
4. PROTECT YOUR PASSWORD: YOU AUTHORIZE
ALL USES MADE OF IT
5. WEBSITE ESP'S PRIVACY
POLICY
6. CONDUCT ON THE SITE
7. CONTENT SUBMITTED TO THE
SITE
8. INDEMNITY
9. TERMINATION
10. LINKS
11. WARRANTIES
12. DISCLAIMER OF
WARRANTIES
13. LIMITATION OF LIABILITY
14. THIRD PARTY
BENEFICIARY
15. EXPORT CONTROLS
16. AMENDING THIS AGREEMENT
17. FEES; PAYMENTS
18. GENERAL INFORMATION
1.
ELECTRONIC TRANSACTIONS - TOP
Communications and transactions at this Site
are conducted electronically. Website ESP may provide all communications,
disclosures, and notices electronically including, without limitation, in
text on a Web page or via email to any email address you may provide. If
you do not wish to deal with Website ESP electronically, please do not use
this Site.
All electronic records are deemed
sent when properly addressed and when they enter an information processing
system outside the control of the sender. All electronic records are
deemed received when the record enters an information processing system
that the recipient has designated or uses for the purpose of receiving
electronic records of the type sent, in a form capable of being retrieved
from that system.
2. DESCRIPTION OF SERVICE - TOP
The Site currently permits small business
owners to maintain a business presence on the Internet via personalized
Web pages. Unless explicitly stated in any offer from Website ESP to amend
this Agreement, any new features that augment or enhance the current Site,
including the release of new Website ESP features and services, are
subject to this Agreement.
3. LICENSE
TO USE THE SITE - TOP
Website ESP hereby grants you a
non-exclusive, non-transferable, personal license to access and use the
Site solely as necessary to create and manage personalized Web pages
solely in connection with the operation of a licensed business
("Account"). Except for the license in this Section 3, Website ESP retains
all right, title, and interest in and to the Site. Subject to applicable
law, Website ESP reserves the right to suspend or deny, at its sole
discretion, your access to all or any portion of the Site with or without
notice. You may not access or use the Site or any portion of the Site if
such access would violate any law. We advise you to retain a copy of this
Agreement. Permission to reprint or electronically reproduce any content
available on the Site, in whole or in part for any purpose other than as
necessary to create and manage your Account is expressly prohibited,
unless you have obtained prior written consent from Website ESP. The Site
is protected by copyrights, trademarks, service marks, patents or other
proprietary rights and laws under both United States and foreign laws. All
rights not expressly granted herein are reserved to Website ESP and its
licensors.
4. PROTECT
YOUR PASSWORD: YOU AUTHORIZE ALL USES MADE OF IT. - TOP
You are responsible for maintaining the
confidentiality of the password that you choose to access and use the Site
and your Account. Subject to applicable law, you agree to be liable for
all uses of your Account whether or not actually authorized by you,
including but not limited to access to your Account information through
the "Manage your Site" feature. This means that you should not supply your
password to anyone who is not authorized to take actions for you.
5. WEBSITE
ESP PRIVACY POLICY - TOP
Our Privacy Policy is a part of this
Agreement and its terms are incorporated by this reference. Please read it
now (by clicking on "Privacy Policy"). The policy explains how certain
information about you may be used.
6. CONDUCT
ON THE SITE - TOP
You understand that all information, data,
text, files, software, music, sound, photographs, graphics, video,
messages or other posted or transmitted by you through your Account and
the Site, are your sole responsibility. This means that you, and not
Website ESP, are entirely responsible for all content that you or users of
your Web site upload, post or otherwise transmit via the Site. Website ESP
does not control the content on this Site and does not guarantee the
accuracy, integrity or quality of any content. You understand that by
using the Site, you may be exposed to content that is offensive, indecent
or objectionable. Further, you agree to not use the Site to:
(a)
upload, post or otherwise transmit any content that is unlawful, harmful,
threatening, abusive, harassing, tortious, defamatory, slanderous, vulgar,
obscene, libelous, invasive of another's privacy, hateful, embarrassing,
or racially, ethnically or otherwise objectionable to any other person or
entity as determined by Website ESP in its sole discretion;
(b)
impersonate any person or entity, including, but not limited to, a Website
ESP staff, or falsely state or otherwise misrepresent your affiliation
with a person or other entity;
(c) forge headers or otherwise
manipulate identifiers in order to disguise the origin of any content
transmitted through the Site or develop restricted or password-only access
pages, or hidden pages or images (those not linked to from another
accessible page);
(d) upload, post or otherwise transmit any content
that you do not have a right to transmit 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);
(e)
upload, post or otherwise transmit any content that infringes any patent,
trademark, trade secret, copyright or other intellectual property or
proprietary rights of any party or the privacy or publicity rights of
others;
(f) upload, post or otherwise transmit any unsolicited or
unauthorized advertising, promotional materials, "junk mail," "spam,"
"chain letters," "pyramid schemes," or any other form of solicitation;
(g) upload, post or otherwise transmit any content that contains
viruses or any other computer code, files or programs which interrupt,
destroy, limit the functionality of, or cause damage to any computer
software or hardware or telecommunications equipment;
(h) disrupt the
normal flow of dialogue, cause a screen to "scroll" faster than other
users of the Site are able to type, or otherwise act in a manner that
negatively affects other users' ability to engage in real time exchanges;
(i) interfere with or disrupt the Site or servers or networks
connected to the Site, or fail to comply with any requirements,
procedures, policies or regulations of networks connected to the Site;
(j) intentionally or unintentionally violate any applicable local,
state, national or international law, including, but not limited to,
regulations having the force of law;
(k) "stalk," harass, or otherwise
harm another;
(l) collect or store personal data in violation of any
laws governing privacy;
(m) promote or provide instructional
information about illegal activities, promote physical harm or injury
against any group or individual, or promote any act of cruelty to
animals;
(n) use your Account as storage for remote loading or as a
door or signpost to another home page, whether inside or beyond the Site;
(o) reproduce, duplicate, copy, sell, resell or exploit any portion of
the Site, use of the Site, or access to the Site.
(p) engage in any
other conduct that inhibits any other person from using or enjoying the
Site;
(q) engage in any other behavior on the Site, which in Website
ESP's sole discretion is unacceptable.
Website ESP may (but is not
obligated) to remove your content and terminate your Account and access to
the Site for any reason, with or without notice to you, including without
limitation, your Web page or any listings on your Web page that do not
conform with the rules for the Site.
7. CONTENT
SUBMITTED TO THE SITE - TOP
By submitting content to the Site for any
purpose, including use in connection with your Account, you grant Website
ESP a world-wide, royalty-free, perpetual, irrevocable, non-exclusive
license to use, copy, reproduce, modify, create derivative works from,
adapt, and publish, edit, translate, sell, distribute, publicly perform
and display the content without any limitation and in any media or any
form now known or later developed for the purpose of providing you
services under this Agreement. You acknowledge that Website ESP does not
pre-screen content, but that Website ESP and its designees will have the
right (but not the obligation) in their sole discretion to refuse or
remove any content that is available via the Site. 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.
8.
INDEMINITY - TOP
You agree to defend, indemnify and hold
harmless Website ESP, and its subsidiaries, affiliates, officers,
directors, agents, co-branders or other partners, and employees, harmless
from any claim or demand, including reasonable attorneys' fees, due to or
arising out of your content, your use of the Site or your Account, your
violation of the this Agreement or any third party's rights. Website ESP
reserves the right, at its own expense, to participate in the defense of
any matter otherwise subject to indemnification from you, but shall have
no obligation to do so. You shall not settle any such claim or liability
without the prior written consent of Website ESP if the settlement would
affect Website ESP's ability to provide the Site.
9.
TERMINATION - TOP
Website ESP may terminate this Agreement and
your access to the Site upon thirty (30) days notice without cause.
Website ESP may terminate this Agreement and your access to the Site
immediately if you breach this Agreement. In the event that Website ESP
terminates this Agreement without cause and you have prepaid for services,
you may request a refund of any undisputed prepaid fees.
10. LINKS
- TOP
We may provide, or third parties may provide,
links to other Internet sites or resources. Website ESP is not responsible
for and does not endorse the informational content or any products or
services available through other Internet sites or resources, and does not
make any representations regarding its content or accuracy. We do not
control any third party Internet sites and we are not liable for any
technological, legal, or other consequences that arise out of your visit
or transactions there. Your use of third party Internet sites is at your
own risk and subject to the terms and conditions of use for such sites.
This means that we are not your agent and will not be a party to any
agreement that you may enter at third party Internet sites.
11.
WARRANTIES - TOP
You represent and warrant for the benefit of
Website ESP and Website ESP's licensors, suppliers, and any third parties
mentioned on the Site that: (a) you possess the legal right and ability to
enter into and make the representations and warranties contained in this
Agreement; (b) all information that you submit to us is true and accurate;
(c) you will keep your registration information current; (d) you will be
responsible for all use of your Account even if such use was conducted
without your authority or permission; (e) you will not use the Site for
any purpose that is unlawful or prohibited by this Agreement; and (f) all
content submitted to the Site is owned by you and Website ESP's use of the
content does not infringe or violate the intellectual property or other
rights of any third parties; and (g) you have a valid business license.
12.
DISCLAIMER OF WARRANTIES - TOP
THIS SITE AND ALL INFORMATION ACCESSIBLE ON
OR THROUGH IT IS PROVIDED "AS IS," "AS AVAILABLE," "WITH ALL FAULTS," AND
WITHOUT WARRANTY OF ANY KIND. WEBSITE ESP GIVES NO EXPRESS WARRANTIES AND
DISCLAIMS: (A) ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE;
AVAILABILITY OF THE SITE; LACK OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER
CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; ACCURACY,
COMPLETENESS, RELIABILITY, TIMELINESS, CURRENCY, OR USEFULNESS OF ANY
CONTENT ON THE SITE; AND (B) ANY DUTIES OF REASONABLE CARE, WORKMANLIKE
EFFORT OR LACK OF NEGLIGENCE IN CONNECTION WITH THE SITE OR CONTENT
AVAILABLE ON IT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE,
ACCURACY AND EFFORT IN CONNECTION WITH THE SITE AND CONTENT AVAILABLE ON
IT IS BORN BY YOU.
IN ADDITION, WEBSITE ESP
DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT IN
CONNECTION WITH THE SITE AND INFORMATION AVAILABLE ON IT.
13.
LIMITATION OF LIABILITY - TOP
IN NO EVENT WILL WEBSITE ESP BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY
DAMAGES, OR ANY OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, PERSONAL
INJURY, FAILURE TO MEET ANY DUTY INCLUDING ACTS OF GOOD FAITH OR OF
REASONABLE CARE, LACK OF NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER
LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE THIS
SITE AND ANY INFORMATION AVAILABLE ON IT, THE DELAY OR INABILITY TO USE
THE SITE OR ANY INFORMATION, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY
OF WEBSITE ESP AND EVEN IF WEBSITE ESP HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY
EVEN IF ANY REMEDY FAILS. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL
WEBSITE ESP BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU
TO US FOR USE OF THE SITE. 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 OF SECTIONS 13 AND 14
14. THIRD
PARTY BENEFICIARY - TOP
Community IQ, Inc., d/b/a Vista.com is a
Washington State corporation located at 11241 Willows Road, Suite 100
Building C, Redmond WA 98052, which will provide the Web site development
and maintenance services for Website ESP as anticipated under this
Agreement. You hereby agree that Vista.com, is a third party beneficiary
to this Agreement and will enjoy all the rights and privileges of
Vista.com as set forth herein.
15.
EXPORT CONTROLS - TOP
You agree to abide by U.S. and other
applicable export control laws and not to transfer, by electronic
transmission or otherwise, any content or software subject to restrictions
under such laws to a destination prohibited under such laws, without first
obtaining, and then complying with, any requisite government
authorization. You further agree not to upload to your Web site(s) hosted
by Vista.com.com any data or software that cannot be exported without
prior written government authorization, including, but not limited to,
certain types of encryption software.
16.
AMENDING THIS AGREEMENT - TOP
This Agreement constitutes the entire
agreement between you and Website ESP about this Site and your use of it
and it supercedes any prior or contemporaneous communications or displays
whether electronic, oral, or written between you and Website ESP regarding
the Site (including, but not limited to, any prior versions of the
Agreement). Except as described below in Section 17 regarding changes to
fees, this Agreement may not be amended except by a specific offer from
Website ESP designated as an offer to amend its terms which is accepted by
you in the manner indicated in the offer. If you accept the amended terms,
they supercede any previous terms in the Agreement (or any amended version
of the Agreement). If you do not accept the amended terms, you may
terminate the Agreement and request a refund of any undisputed prepaid
fees.
17. FEES;
PAYMENT - TOP
Your use of the Site and your Account is
subject to fees that Website ESP sets from time to time. Click here to see
the current fee schedule for the services offered at the Site. Website ESP
reserves the right to change its services or any fees charged for them
upon 30 days' notice. If you do not agree to changes in fees, you may
terminate your Account. You are responsible to pay Website ESP for all
fees, duties, taxes, and assessments arising out of your use of this Site
and your Account. Current applicable charges for the services are due in
advance of each month for which the services are provided. If any service,
other than the basic service plan, is selected by you, payment shall be
due in full upon ordering the service. Only valid credit cards acceptable
to Website ESP may be used for orders placed at the site, and all refunds
will be credited to the same card. By submitting your order for
processing, you authorize us to charge your order (including taxes and any
amounts shown to you before submission) to your card. If your card cannot
be verified, is invalid, or is not otherwise acceptable, your order will
be suspended automatically and we will send you an e-mail notice. You must
resolve any problem within the time stated in the email notification or
your order will be cancelled without further notice. You will also be
liable for all attorney and collection fees arising from Website ESP's
efforts to collect any unpaid balance of your Account(s). Website ESP may assign billing and
collections to Vista.com for any and all web hosting and basic service
uses.
18.
GENERAL INFORMATION - TOP
This Agreement does
not create any agency, employment, partnership, joint venture, franchise
or other similar or special relationship between you and Website ESP.
Neither party will have the right or authority to assume or create any
obligations or to make any representations, warranties or commitments on
behalf of the other party or its affiliates, whether express or implied,
or to bind the other party or its affiliates in any respect whatsoever.
Your rights and obligations under this Agreement shall not be transferred
or assigned directly or indirectly without the prior written consent of
Website ESP. This Agreement and the relationship between you and Website
ESP is governed by the laws of the State of California without regard to
its conflict of law provisions. You and Website ESP agree to submit to the
personal and exclusive jurisdiction of the courts located within the
county of Santa Clara, California. The failure of Website ESP to exercise
or enforce any right or provision of this Agreement will not constitute a
waiver of such right or provision. If any provision of this Agreement is
found by a court of competent jurisdiction to be unenforceable, then the
provision (or portion) will be deemed superseded by valid enforceable
language that most clearly matches the intent and allocation of risk in
the original provision (or portion), and the other provisions of this
Agreement 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 Site or this Agreement must be filed
within one (1) year after such claim or cause of action arose or be
forever barred. The section titles in the Agreement are for convenience
only and have no legal or contractual effect.
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