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End User License Agreement |
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MORTGAGE 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 MORTGAGE XSITES MEMBER ("MEMBER" OR
"YOU"). YOU MAY NOT ACCESS MORTGAGE 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.
Attention Demo users: Certain sections of this license
agreement will not apply to you until/if you purchase the Product.
Specifically the sections not applicable to demo users are: Fees and Payment,
and Term and Termination. As a demo user, you have no obligation to
purchase this product.
TERMS AND CONDITIONS
1. Fees and
Payment. You shall pay the fees and other charges for the Services as stated on
Mortgage XSites' home page (http://www.Mortgagexsites.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 Your License to use
the Services is terminated if You violate this Agreement. ALM may terminate this
Agreement at any time as determined by ALM in its sole discretion. If ALM
terminates this Agreement, it shall have no obligation to refund any fee paid by
Member.
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 Mortgage
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 Mortgage 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 Mortgage 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 Mortgage 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 MORTGAGE 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 Mortgage 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
Mortgage 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 Mortgage XSites.
Member further acknowledges and agrees that the name and mark "Mortgage 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 Mortgage 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 Mortgage 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 Mortgage 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 Mortgage 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
Mortgage 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 Mortgage 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 Mortgage XSites including, without limitation, any transmission,
retransmission, or further transmission of them. All musical compositions made
available by ALM through Mortgage 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.
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.
BY CLICKING ON THE "AGREE"
BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU
UNDERSTAND IT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU
FURTHER ACKNOWLEDGE THAT THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN
YOU AND ALM AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND
ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT. YOU ALSO AGREE THAT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT
APPLY TO YOUR USE OF MORTGAGE XSITES SHOULD YOU CHOOSE TO PROCEED WITH THE USE
OF MORTGAGE XSITES. FINALLY, IF MEMBER IS AN ENTITY OF ANY KIND, YOU ACKNOWLEDGE
THAT YOU ARE AN OFFICER OR OTHER AUTHORIZED PERSONNEL FOR MEMBER WHO HAS THE
AUTHORITY TO AUTHORIZE THE PAYMENT FOR THE SERVICES CONTEMPLATED UNDER THIS
AGREEMENT.