End User License Agreement |
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INSPECTOR XSITES
TERMS OF SERVICE AGREEMENT
IMPORTANT
NOTICE TO USER - PLEASE READ CAREFULLY
THE FOLLOWING TERMS OF SERVICE
AGREEMENT (THE "AGREEMENT") DETAILS THE TERMS AND CONDITIONS FOR THE WEBSITE
HOSTING AND E-COMMERCE SERVICES (THE "SERVICES") PROVIDED AND ADMINISTERED BY A
LA MODE, INC. (REFERRED TO HEREIN AS "ALM" OR "WE"). THIS AGREEMENT CONSTITUTES
A BINDING AGREEMENT BETWEEN ALM AND THE INSPECTOR XSITES MEMBER ("MEMBER" OR
"YOU"). YOU MAY NOT ACCESS INSPECTOR XSITES UNLESS YOU FIRST REVIEW AND ACCEPT
THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON THE "AGREE" BUTTON AT
THE BOTTOM ON THIS PAGE. AFTER YOU REVIEW THE TERMS AND CONDITIONS BELOW, PLEASE
ACKNOWLEDGE YOUR AGREEMENT BY CLICKING ON THE "AGREE" BUTTON OR THAT YOU DECLINE
THIS AGREEMENT BY CLICKING ON THE "DISAGREE" BUTTON AT THE BOTTOM OF THIS PAGE.
TERMS AND CONDITIONS
1. Fees and Payment. You shall pay the fees
and other charges for the Services as stated on Inspector XSites' home page
(http://www.Inspectorxsites.com) or in this Agreement. All fees are due
immediately and, except as expressly provided herein, are non-refundable. ALM
reserves the right to change its fees at any time. You shall make all payments
in U.S. currency. Your credit card will be billed in advance for any and all
fees. ALM reserves the right to suspend or terminate your account if credit card
charges are denied. Such suspension or termination shall not relieve you of the
obligation to pay the fees due. You agree to pay ALM its reasonable expenses,
including attorneys' and collection agency fees, incurred in enforcing its
rights under this Agreement.
2. Term and Termination.
2.1 This
Agreement shall become effective upon your acceptance of the terms and
conditions contained herein and shall continue for a period of one (1) year
unless sooner terminated as provided below.
2.2 ALM reserves the right
to terminate this Agreement for any breach of the provisions hereof or the
provisions of the Inspector XSites Acceptable Use Policy, as determined by ALM
in its sole discretion. ALM shall have no obligation to refund any of Member's
fees due to ALM's early termination of this Agreement.
2.3 If, in the
first one hundred (100) days after your purchase of this XSite, you are not
satisfied for any reason with the Services, you may cancel this Agreement and
receive a full refund of all fees paid. Notice of such cancellation shall be
made by contacting ALM at 1-800-252-6633 (1-800-alamode) and notifying the
representative that you wish to receive a refund. The notice must be made prior
to 5:00 p.m. Oklahoma time on the one hundredth (100th) day after your purchase
of this XSite.
2.4 Upon the termination of this Agreement for any
reason, ALM shall replace the home page of Member's website with a standard
error message at no charge to Member.
3. Responsibility for Member
Website Development, Operation and Maintenance. Member will be solely
responsible for the development, operation and maintenance of Member's website
and all content and materials appearing on-line including, without limitation:
(a) the accuracy and appropriateness of content and materials appearing on
the website;
(b) ensuring that the content and materials appearing do not
violate or infringe upon the rights of any third party;
(c) ensuring that
the content and materials appearing are not libelous or otherwise illegal;
(d) the final calculation and application of shipping and sales tax and for
accepting, processing, filling and shipping any customer orders;
(e) handling
any customer inquiries or complaints arising from customer orders; and
(f)
the security of any customer credit card numbers and related customer
information that you obtain or access as a result of conducting electronic
commerce via Member's website and to keep all such information confidential and
to exercise the same degree of care and security standard in the industry.
4. Member Communication. ALM reserves the right to send Member service
e-mails notifying Member of operational or other changes that may affect or
change the Services offered by ALM. Please note that you cannot opt out of such
service e-mails because these service e-mails provide information critical for
the operation of Member's website.
MEMBER HEREBY GRANTS ALM EXPRESS
WRITTEN PERMISSION TO SEND FAX AND OR EMAIL SOLICITATIONS OR ADVERTISEMENTS,
THUS SATISFYING ANY EXPRESS WRITTEN PERMISSION REQUIREMENT.
5.
Amendments/Modifications. ALM reserves the right to amend the Service offerings
and add, delete, suspend or modify the terms and conditions of the Services at
any time, and to determine whether and when, at its sole discretion, any such
changes apply to existing or future Members.
6. Content.
6.1 ALM
is not responsible for the content of any web page hosted by ALM. The opinions
and views expressed in such web pages do not necessarily reflect those of ALM.
The contents of the web pages hosted by ALM are not reviewed in any way before
they appear on the web page. As the author of web pages hosted on Inspector
XSites, you take full responsibility for their contents. Do not use the web
space provided by ALM to provide material that is offensive to the web community
including, but not limited, expressions of bigotry, racism, hatred or profanity
or for promoting or providing instructional information about illegal activities
or promoting physical harm or injury against any group or individual.
6.2 Inspector XSites shall only be used for lawful purposes.
Transmission or solicitation of any material that violates any local, state,
federal or international law, order or regulation is prohibited.
6.3
Your web pages cannot contain, or provide links to, materials that ALM, in its
sole discretion, may consider illegal or offensive including, but not limited
to:
(a) copyrighted material not belonging to you -- for example, music,
images, software or video -- unless you have the prior consent of the copyright
owner;
(b) trademarked materials not belonging to you without the prior
consent of the trademark owner;
(c) pornography, nudity, sex or any other
material that would commonly be considered "indecent" or "appealing to the
prurient interest";
(d) gambling;
(e) foul language;
(f) pyramid or
other illegal solicitation schemes; or
(g) insults to other persons or
businesses including, but not limited to, material that is obscene, threatening,
harassing, defamatory or libelous.
6.4 You shall not use your web pages
to conduct any of the following activities:
(a) send bulk/spam e-mail;
(b)
send mass/spam news postings;
(c) disclose the trade secrets of any other
person or entity;
(d) use patented or trademarked materials without the prior
consent of the patent or trademark owner;
(e) rent, sell or otherwise
distribute web space to third parties; or
(f) conduct any other activity that
ALM determines, in its sole discretion, to be fraudulent, illegal or an
unreasonable drain on system resources.
6.5 The financial calculators are
made available to you "AS IS" for your independent use and are not intended to
provide investment advice. We can not and do not guarantee their applicability
in regards to your individual circumstances. A LA MODE MAKES NO WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE FINANCIAL CALCULATORS
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
7. Security. You agree that you will not attempt to
compromise the security on the ALM servers by any means including, but not
limited to:
(a) attempting to gain access to restricted information on the
ALM servers;
(b) attempting to disable, cripple or modify ALM servers or any
service running on an ALM server; or
(c) attempting to access information in
other Inspector XSites accounts.
ALM reserves the right to prosecute any
person or entity attempting to compromise the security of the ALM servers to the
fullest extent allowed by applicable law.
8. Disclaimer of Warranties.
Member understands that the Internet and other various networking communication
mediums are not secure, unless explicitly specified as such, and may be subject
to interception or loss. ALM makes no representations or warranties of any kind,
either express, implied or statutory, concerning the data or information
available through Inspectors XSites or the Internet. ALM'S SERVICES ARE PROVIDED
ON AN "AS IS" BASIS. ALM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT;
THAT THE SERVICES WILL MEET MEMBER'S REQUIREMENTS OR WILL ALWAYS BE AVAILABLE,
ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; ANY IMPLIED
WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE; REGARDING ANY THIRD
PARTY SOFTWARE OR SERVICES; AND/OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY IN TORT WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF ALM. TO THE FULLEST
EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALM DISCLAIMS ANY AND ALL SUCH
REPRESENTATIONS AND WARRANTIES.
9. Limitation of Liabilities.
9.1 General. IN NO EVENT WILL ALM BE LIABLE TO MEMBER FOR ANY
CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT, SPECIAL OR PUNITIVE DAMAGES
WHATSOEVER (INCLUDING DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS) ARISING OUT
OF OR RELATED TO (I) THE SERVICES, (II) YOUR USE OF ANY DATA, INFORMATION OR
THIRD PARTY SOFTWARE AVAILABLE THROUGH INSPECTOR XSITES, (III) THIS AGREEMENT OR
(IV)MEMBER'S WEBSITE REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM INCLUDING,
BUT NOT LIMITED TO, TORT, CONTRACT OR STRICT LIABILITY CLAIMS. IN ADDITION,
EXCEPT FOR THE SERVICE LEVEL WARRANTY SPECIFIED IN SECTION 13 HEREOF, ALM SHALL
HAVE NO LIABILITY OF ANY KIND OR NATURE TO MEMBER ARISING OUT OF OR RELATED TO
MEMBER'S USE OF OR INABILITY TO USE MEMBER'S WEBSITE. IN THE EVENT THAT ALM IS
LIABLE TO MEMBER FOR ANY LOSS ARISING OUT OF OR RELATED TO THE SERVICES, THIS
AGREEMENT OR MEMBER'S WEBSITE, ALM'S AGGREGATE LIABILITY TO MEMBER WILL IN NO
EVENT EXCEED THE AMOUNT OF ANY ACTUAL MONETARY LOSS OR DAMAGES SUFFERED UP TO,
AND NOT IN EXCESS OF, THE AGGREGATE FEES PAID, IF ANY, FOR THE SERVICES WHICH
GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO
THE DATE THE CLAIM AROSE.
9.2 No Liability for Unauthorized Use or
Access. Member is solely responsible for ensuring that each password for
Member's website is utilized only by Member or, if applicable, by Member's
authorized employees and agents. ALM shall have no liability for any loss,
claim, damage or other liability that may arise from the unauthorized use of a
password. If a password is lost or stolen or if you have reason to believe that
your website is no longer secure for any reason, it is your responsibility to
notify ALM of such loss or theft so that the password can be deactivated and a
new password assigned. ALM will use commercially reasonable efforts to effect
password deactivation requests promptly.
10. Member Acknowledgement.
Member acknowledges and agrees that the disclaimers of warranties, limitations
of liability and indemnification provisions set forth in this Agreement reflect
a mutually agreed upon allocation of risk and form a fundamental part of the
basis of the bargain hereunder, without which ALM would not have entered into
this Agreement.
11. Domain Name. If Member wishes to register a custom
domain name ("Domain Name") for the Member's website, ALM will cooperate with
Member in registering the Domain Name with the appropriate entity. As between
Member and ALM, Member shall own all right, title and interest in and to the
Domain Name. Member shall be solely responsible for tracking and ensuring that
all required renewals for Member Domain Names are made in a timely manner. ALM
will cooperate with Member to renew Domain Names. ALM makes no representation or
warranty of any kind concerning the registration of a Domain Name for Member, or
concerning the automatic renewal of Domain Names on behalf of Member and under
no circumstances shall ALM be liable to Member or any other person or entity in
the event that any Domain Name is either not registered or renewed in a timely
manner.
As part of the Services provided under this Agreement, ALM will
provide reasonable domain name server ("DNS") assistance. If Member arranges for
a third party to provide DNS and/or e-mail service, Member shall hold ALM
harmless from and against any errors made as a result of the third party's
management of Member's DNS and/or e-mail service. If a third party provides DNS
and/or e-mail service for Member, and Member requests additional services from
ALM concerning Member's DNS and/or e-mail service, such additional services will
be provided at ALM's then current hourly rate.
12. Acceptable Use
Policy. You shall comply at all times with the terms of the Inspector XSites
Acceptable Use Policy, a copy of which may be found at
http://www.alamode.com/xsites/aup. ALM may change the Acceptable Use Policy at
any time without notice, at ALM's sole discretion. ALM may terminate this
Agreement if you violate the terms of the Acceptable Use Policy. The
determination of whether the terms of the Acceptable Use Policy have been
violated will be made solely by ALM.
13. Service Level. If, due to the
fault of ALM, Member's website is not accessible to users for eighty-five
percent (85%) or more of the hours in any particular month following the month
in which this Agreement becomes effective, then Member shall be entitled to a
pro rata refund of the fees paid for such hosting in such month (in proportion
to the percentage of the total hours of the month in which the website is not
accessible). ALM will not be responsible for refunding any other fees paid by
Member.
14. Intellectual Property. Member acknowledges and agrees that
Inspector XSites is a valuable commercial product of ALM, the development of
which has involved expenditure by ALM of substantial time and money. Member
acknowledges and agrees that Member has no ownership rights in Inspectors
XSites. Member further acknowledges and agrees that the name and mark
"Inspectors XSites" and all associated names, marks and logos (collectively, the
"Marks") are the trademarks and/or service marks of ALM or its affiliates, and
that any trade dress, trademark, service mark or designs related to Inspector
XSites and/or the Marks are the intellectual property of ALM and are protected
by United States copyright laws, trademark laws, trade secret laws,
international treaties and applicable laws of the states and jurisdictions where
they are used. This Agreement does not grant to Member any ownership right in
the Marks or in any other intellectual property of ALM. All material on
Inspectors XSites including, but not limited to, images, illustrations and
musical compositions is protected by copyrights that are owned or controlled by
ALM or by other parties that have licensed their material to ALM. Except as
otherwise provided in the following sentence, all right, title and interest in
and to the Marks and any other intellectual property of ALM shall remain with
ALM. ALM grants a non-exclusive, revocable, non-transferable license to Member
to use solely during the term of this Agreement the graphics, text, musical
compositions, tools and modules provided by ALM through Inspectors XSites;
provided, however, that such graphics, text, musical compositions, tools, and
modules may be used by Member only on ALM's server. Such license shall terminate
upon the termination of this Agreement. Member shall not, under any
circumstances, resell, distribute or allow any other entity or person to use any
of ALM's products, modules, tools, scripts, graphics, text, database/programming
code or object or source codes without ALM's prior written consent. As between
Member and ALM, the parties agree that ALM shall own and retain all intellectual
property rights, copyrights, patents and all rights, title and interest in and
to all of the products, modules, tools, scripts, graphics, text,
database/programming code and object or source codes provided or supplied by ALM
that are displayed on Member's website or used in the development or the
maintenance of Member's website.
Access to Inspector XSites does not grant to
Member the right to reproduce, copy or distribute (except as permitted by ALM on
web pages hosted by ALM) by any means, method or process whatsoever, now known
or hereafter developed, any of the musical compositions made available by ALM
through Inspectors XSites including, without limitation, transferring or
downloading them to a computer hard drive, or otherwise copying them onto any
other storage medium. In addition, access to Inspectors XSites does not grant to
Member the right to perform publicly, by any means, method or process
whatsoever, now known or hereafter developed, any of the musical compositions
made available by ALM through Inspectors XSites including, without limitation,
any transmission, retransmission, or further transmission of them. All musical
compositions made available by ALM through Inspectors XSites are protected by
copyrights that are owned by the individual composers thereof or other parties
and all such musical compositions have been licensed by Shockwave-Sound.com for
use only on web pages hosted by ALM.
15. Links to Other Websites. As a
convenience to Member, ALM provides links to websites owned and operated by
third parties not affiliated with ALM. Member's use of the services and products
offered via any such linked website shall be at Member's own risk and ALM
assumes no responsibility for the products and services offered via any such
linked website, regardless of whether ALM receives a referral fee for Member's
use of the linked website. Member acknowledges and agrees that ALM shall not be
held responsible for the legality, accuracy or inappropriate nature of any
content, advertising, products, services or information located on or through
any of the linked websites, nor for any losses or damages caused or alleged to
have been caused by the use of or reliance on any content from any such linked
website.
16. General Provisions.
16.1 Governing Law. This
Agreement shall be governed, construed and enforced in accordance with the laws
of the State of Oklahoma, without giving effect to its conflict of laws
principles.
16.2 Arbitration. Any controversy or claim arising out of or
relating to this Agreement shall be settled by binding arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
Any such controversy or claim shall be arbitrated on an individual basis, and
shall not be consolidated in any arbitration with any claim or controversy of
any other party. The arbitration shall be conducted in Oklahoma City, Oklahoma,
and the decision of the arbitrator shall be final, binding and enforceable in
any court of competent jurisdiction. The arbitrator shall not have the authority
to award punitive, consequential or indirect damages against either party, and
each of the parties hereby waives the right to such damages. Notwithstanding
anything to the contrary herein, either party may seek any interim or
preliminary relief from a court of competent jurisdiction in Oklahoma City,
Oklahoma necessary to protect the rights or property of such party pending the
completion of arbitration.
16.3 Force Majeure. ALM shall not be liable
for nonperformance, delay, errors, data loss or other loss caused by any event
reasonably beyond ALM's control including, but not limited to, acts of God, war,
terrorism, hostilities, revolution, civil disorder, national emergency, strikes,
lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force
of nature, explosion, embargo or any law, proclamation, regulation, ordinance or
other act or order of any court, government or governmental agency.
16.4
Legal Expenses. The prevailing party in any arbitration proceeding or other
legal action brought by one party against the other and arising out of this
Agreement shall be entitled, in addition to any other rights and remedies it may
have, to reimbursement for its expenses, including court costs and reasonable
attorneys' fees.
16.5 Severability; Waiver. If any provision of this
Agreement is held to be invalid or unenforceable for any reason, the remaining
provisions will continue in full force without being impaired or invalidated in
any way. The parties agree to replace any invalid provision with a valid
provision that most closely approximates the intent and economic effect of the
invalid provision. The waiver by either party of a breach of any provision of
this Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
16.6 Assignment. Member may not assign this Agreement
or any of its rights or obligations hereunder without the prior written consent
of ALM. ALM's rights and obligations hereunder will bind and inure to the
benefit of its successors and assigns.
16.7 Independent Contractors. The
parties to this Agreement are independent contractors, and no agency,
partnership, joint venture or employee-employer relationship is intended or
created by this Agreement. Neither party shall have the power to obligate or
bind the other party.
16.8 Indemnification; you agree to indemnify and
hold ALM harmless from any and all claims and demands, including, but not
limited to reasonable attorneys' fees, made by any third party due to or arising
out of any information, including, but not limited to, information provided by
ALM. The information, software, products, and services may include inaccuracies
or typographical errors. Changes are periodically added to the information
herein. ALM, its affiliates and/or its respective suppliers may make
improvements and/or changes in this site at any time. In no event shall ALM be
liable for any direct, indirect, punitive, incidental, special, consequential
damages or any damages whatsoever including, without limitation, damages for
loss of use, data or profits, arising out of or in any way connected with the
use or performance of ALM services and software.
16.9 Entire Agreement.
This Agreement sets forth the entire understanding and agreement of the parties
and supersedes any and all oral or written agreements or understandings between
the parties as to the subject matter of this Agreement. ALM reserves the right
in its sole discretion to change or modify this Agreement in whole or in part at
any time or from time to time.
| Because many of the back-end services in
XSites and XSellerate are powered by Microsoft products, we’re required to
add a new section to our End User License Agreement. Aside from this
update, nothing else in the EULA has changed. Click here to see the full version of the agreement. Please send questions or comments to info@alamode.com. The following section has been added: |
Microsoft Notice to USER Microsoft disclaims to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft, its affiliates or suppliers for any damages, whether direct, indirect, or consequential, arising from the use of the Microsoft software services. ALM will provide product support for the software services covered under this Agreement, unless otherwise indicated. In an effort to improve the flow of email from you to your intended recipients, ALM may, from time to time, provide you with feedback from third parties. In the event that your email is deemed SPAM, and you fail to remove the recipient from your lists, ALM may, in its sole discretion, suspend or disconnect your service. In cases where feedback is provided by Microsoft, you shall treat the feedback and all information contained in such feedback as confidential information that is owned by Microsoft, and shall not share such feedback with any third parties. |
a la mode and its products are
trademarks |