These Terms of Service, along with Our Privacy Policy, Acceptable Use Policy and the other terms and policies referenced herein, is an agreement (the "Agreement") between You ("Customer", "You", or "Your") and Volusion, LLC, a Delaware limited liability company ("Volusion", "We", "Us" or "Our"). This Agreement sets forth the terms and conditions of Your use of the http://volusion.com website and the platform, applications, tools, templates and other products and services provided by or through Us (collectively, the "Services"). You may use the Services to create or publish websites and online stores and access other ecommerce services (“Your Sites”).
If the person entering into this Agreement is acting on behalf of an entity, all references to "Customer", "You" and "Your" shall refer to such entity and such person represents that it has the ®authority to bind such entity to this Agreement. For individuals, the Services are available only to those who are at least eighteen (18) years of age and recognized as being able to form legally binding contracts under applicable law.
By using or accessing Our Services, You are agreeing to this Agreement and that any previous agreements between You and Us with respect to the Services are superseded by this Agreement. We may change or modify this Agreement at any time at Our discretion. Any such changes or modifications shall be effective immediately upon the earlier of (i) Our email notification to You advising You of such changes or modifications, (ii) Your electronic acceptance of the revised Agreement after such changes or modifications have been made as indicated by the "Last Revised" date at the top of this page, or (iii) Your continued use of the Services after We post the amended Agreement to this website.
Throughout these Terms of Service, We sometimes provide summaries to the right to assist You in Your review and understanding of these terms. These summaries are not binding and are not part of this Agreement. Please make sure You read and understand the entire Agreement before using Our Services.
You must register for an account (the "Account") to access and use the Services by providing your full legal name, current address, phone number, a valid email address and certain other information indicated as required. You agree that all such information is current and accurate. We will use the email address that You provide as the primary method of communication, including for billing matters. We may reject Your application for an Account for any reason, in Our sole discretion.
You shall designate a single "Point of Contact", which shall have full authority to enter into agreements and make binding decisions on Your behalf. For security reasons, only the Account owner or Point of Contact designated by the Account owner will be allowed to make account changes or cancellations or to designate a new Point of Contact. You agree that We may rely on representations made by Your Point of Contact. You may change Your Point of Contact at any time. If there is reasonable doubt about the authenticity of any instruction, notice, document or communication, We reserve the right to require additional authentication from You.
You must keep Your password secure. We encourage You to use best practices in creating, regularly changing and securing Your password. We will not be liable for any loss or damage from Your failure to maintain the security of Your Account or Your password. You agree to immediately notify Us of any unauthorized use of Your password or any similar breach of security.
In the event of a dispute regarding Account ownership, We reserve the right to request documentation to determine or confirm Account ownership. Documentation may include a copy of Your business license or charter, government issued photo ID, the last four digits of the credit card on file, etc. We retain the right to determine, in Our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If We are unable to reasonably determine the rightful owner of an Account, We reserve the right to temporarily disable an Account until resolution has been determined between the disputing parties.
We will provide to You access to those Services to which You subscribe or that You purchase through Your Account (the "Purchased Services"). The Purchased Services shall include hosting of Your Sites and Your Content for access by visitors and users of Your Sites (“Your End Users”).
Some of Our Services are offered through plans. The fees for each plan, and their applicable terms and limits, are described on Our website. Certain plans may have limitations, and We reserve the right to charge an overage fee for exceeding such limitations at then current list prices, or to automatically move You to a plan with limits that exceed Your usage.
The online order that You submit to Us via Our online ordering system, or the electronic or written order provided to You by Us for signature (and that is signed by you (either electronically or manually)), to subscribe for or purchase the Purchased Services (including Paid Services) and that is accepted by Us (the “Order”) is subject to and governed by this Agreement and may contain additional terms and conditions applicable to your Purchased Services. Each Order, along with the terms of this Agreement (which are incorporated into the Order by this reference), constitutes a separate agreement between You and Us.
We reserve the right to quarantine one or more of Your Sites, throttle traffic or invoke other necessary techniques to protect Our other customers. Any such move will last as long as We deem necessary to protect Our other customers, and will not include any additional support. If any of Your Sites is the target of a DDoS or other attack, You consent to Us performing mitigation procedures with or without notice to You and without liability for any delay, disruption or interruption of service. These techniques will remain in place until Your Site experiences at least 48 hours of continuous non-malicious, "normal" traffic.
We will update and modify Our Services from time to time. We will not be responsible for the effect an update has on any code that is not provided by Us. Any modifications to such code necessary to restore functionality to Your Site shall be Your sole responsibility.
The servers used to provide the Services are physically located in the United States of America and, as a result, all content will be subject to the laws thereof.
Technical support is only provided to paying Account holders and is only available to the extent specifically provided for the plan purchased.
As a condition of Your use of the Purchased Services, You acknowledge and agree We may provide Your personal information to Our partners.
We reserve the right to provide the Services to Your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that Our employees and contractors may also be Our customers, and that they may compete with You, although they may not use Your confidential information in doing so.
We reserve the right to refuse, modify, or suspend all or any part of Our Services to anyone for any reason, at any time and without notice. While assuming no obligation to do so, We may remove Materials and suspend or terminate Accounts or Agreements if we determine, in our sole discretion, that either the goods or services offered via a store, or the Materials uploaded or posted to a store, violate Our Acceptable Use Policy (“AUP”) or these Terms of Service. Volusion does not, and takes no obligation, to pre-screen any goods, services, or materials uploaded or posted to a store. Verbal or written abuse of any kind (including threats of abuse or retribution) of any Volusion customer, Volusion employee, member, or officer can, at Our sole discretion, result in immediate Account suspension or termination.
We may suspend the Purchased Services to You with or without notice and without liability if: (a) We reasonably believe that You are using the Services in violation of the Agreement; (b) You don't cooperate with Our reasonable investigation of any suspected violation of the Agreement; (c) there is an attack on Your Sites or Your Sites are accessed or manipulated by a third party without Your consent, (d) We are required by law, or a regulatory or government body, to suspend Your Services; or (e) there is another event for which We reasonably believe that the suspension of Services is necessary to protect Our other customers. We will use commercially reasonable efforts to give You advance notice of any such suspension unless We determine that a suspension on shorter notice or without notice is necessary to protect Us or Our other customers from imminent risk.
You shall not use the Service in any way that shall impair the functioning or operation of Our Services or equipment. You further agree not to use the Services to:
You may not (i) access the Services through automated means, including, without limitation, through “robots”, “spiders” or “offline readers” (ii) use Our servers or Your Sites as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities, (iii) use Your Sites as an anonymous gateway, (iv) run a public recursive DNS service on any of Our servers, (v) use Our Service as a storage device or to store any data or content that is not reasonably related to the use, operation or maintenance of Your Site, or (v) use software or scripts run on Our servers that cause the server to load beyond a reasonable level. Notwithstanding the foregoing, We grant the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases.
You may not use the Service for any illegal or unauthorized purpose nor may You, in the use of the Service, violate any laws in Your jurisdiction (including but not limited to copyright, trademark, or patent laws), the laws applicable to You in Your customer’s jurisdiction, or the laws of the United States of America. You will comply with all applicable laws, rules and regulations in Your use of the Service.
You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Volusion or Volusion trademarks and/or variations and misspellings thereof.
Our acceptance of You as a customer should not be interpreted as, and is not, any advice, opinion, endorsement, or approval on Our part as to the legality of Your products, services, content or intended use of the Service. You are and remain solely responsible to ensure that Your products, services, content, and intended use of the Service is at all times compliant with any and all laws, regulations, and rules applicable thereto, including but not limited to privacy and data laws, accessibility laws and trademark/copyright laws, regardless of the jurisdiction, including, but not limited to, all jurisdictions, countries, states, cities, or other boundaries within which You operate. You should refer to Our AUP for further restrictions, clarifications, and details.
You agree that We have the right to carry out a forensic examination in the event of a compromise to Your Sites or Your Account.
From time to time Your Site may be subject to an event expected to cause a significant spike in traffic, such as appearance on a nationally syndicated television show or substantially advertised promotion. We encourage You to provide advanced notice of such planned events to Us so that We can create a response plan to minimize the effect on Your Sites.
You shall bear full risk of loss and damage to Your Sites and Your Account 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 Sites.
You understand and agree that Your Sites and Your End Users are Your responsibility, and You are solely responsible for compliance with any and all applicable laws or regulations related to Your Sites and Your End Users including but not limited to privacy and data laws, accessibility laws and trademark/copyright laws. This includes, without limitation, Your Sites, the content thereon, and design thereof. You agree to comply with all applicable domestic and international laws and regulations regarding Your use of the Services. You agree to post a privacy policy on Your Sites that complies with the laws applicable to Your business. You also agree to obtain consent from Your customers for the use and access of their personal information by Us and other third parties. We are not liable for, and won’t provide You with any legal advice regarding, Your Sites, the content thereon, design thereof, or Your End Users.
Our Services allow You and Your End Users to upload, post, transmit, publish, share, store, or manage content, including, data, graphics, links, photos, music, sound, messages, videos and other materials (altogether, "Your Content"). You are solely responsible for any and all of Your Content. You represent and warrant that (i) You have all necessary rights to distribute Your Content via Our Services and (ii) Your Content does not violate the rights of any third party. You hereby grant Us a worldwide, royalty-free, non-exclusive license to host and use Your Content in order to provide the Services to You. You are responsible for undertaking necessary measures to ensure the security, confidentiality and integrity of all Your Content transmitted through or stored on Our servers. You are responsible for any of Your Content that may be lost or unrecoverable through Your use of the Services.
Our servers are not an archive and We shall have no liability to You or any other person for loss, damage or destruction of any of Your Sites or Your Content. You are solely responsible for the backup of Your Sites and Your Content. You are encouraged to archive Your Content regularly and frequently.
We do not pre-screen Your Content and We shall have no duty or obligation to monitor Your Content or any other content provided or distributed by others. However, We may at any time, without notice or liability to You, remove from public view, disconnect, or terminate the hosting of any of Your Content which We deem in Our sole discretion (i) violates the terms of this Agreement, including Our Acceptable Use Policy, (ii) violates any third party’s intellectual property, or (iii) is otherwise objectionable.
We will not intentionally disclose Your confidential information to third parties, except as required in the course of providing Our Services or as otherwise described in this Agreement or Our Privacy Policy. Confidential information includes any materials or information provided by You to Us that is not publicly known (“Your Confidential Information”). Your Confidential information does not include information that: (a) was in the public domain at the time We received it; (b) comes into the public domain after We received it through no fault of ours; (c) We received from someone other than You without breach of Our or their confidentiality obligations; or (d) We are required by law to disclose.
In order to permit Us to protect the quality of Our Services, You hereby consent to Our staff accessing Your Account, Your Sites and Your Content from time to time to investigate complaints or other allegations or abuse and to otherwise perform the Services set forth herein.
You understand that Your Content, other than credit card information or data, may be transferred unencrypted over various networks and may be modified to the extent necessary to conform and adapt to technical requirements of connecting networks or devices. Credit card information or data, however, is always encrypted during transfer to or by Us.
We claim no ownership or intellectual property rights in Your Content.
You may download, through the Services or otherwise, and apply Applications to Your Sites. An "Application" means a software application, website, connector, extension or other independent software or interface, whether developed by Us, You or a third party and whether proprietary or open-sourced, that supplements, utilizes or and/interacts with Our Services or one or more websites using Our Services. You may also establish the appearance of Your Sites with a design template download through Our Services or otherwise (a "Theme").
If you download an Application or a Theme that is developed by Us, You are licensed to use it for a single store only. You are not permitted to transfer or sell an Application or a Theme developed by Us to any other person. We give no assurance that a particular Application or Theme will remain available for additional downloads. All Applications and Themes developed by Us that are downloaded by You are considered part of the Purchased Services for purposes of this Agreement.
Some Themes that You download may contain copyrighted material, including images, that You may not have the right to use. You should confirm Your rights to use any images included in a Theme prior to Your use on Your Sites.
You may modify a Theme to suit Your Site and Your stores. We may modify a Theme where it contains an element that may violate Our AUP or that violates any person’s intellectual property rights, even if You received a Theme in that condition. We may modify the Theme to reflect technical changes and updates as required.
The intellectual property rights of any Applications or Themes remains the property of the developer/designer. If You exceed the rights granted by Your purchase of an Application or a Theme, the designer (which may be Us or a third party) may take legal action against You, and We may take administrative action such as modifying Your store or closing Your store.
WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING APPLICATIONS OR THEMES THAT ARE NOT DEVELOPED BY US, INCLUDING THE COMPATIBILITY OF APPLICATIONS OR THEMES WITH OUR SERVICES. Your use of any such Application or Theme is governed by the terms of Your separate agreement with the provider of those products and services. Technical support for an Application or a Theme developed by a third party is the responsibility of the designer, and We accept no responsibility to provide such support.
It is Your responsibility to ensure that the installation of an Application or a Theme does not overwrite or damage Your Content or Your current or preexisting Theme.
We make no representations regarding the legality of any downloaded Application or Theme. It remains solely Your responsibility to ensure that You are at all times compliant with any and all laws, regulations, and rules applicable thereto, including but not limited to privacy and data laws, accessibility laws and trademark/copyright laws.
Our websites may contain links to other websites owned by third parties ("Third Party Sites"), and when you click on any of these links, you are entering another website. You may also have the ability through Our Service or through Applications to access Your accounts for services provided by third parties or to link accounts for Third Party Services to Your Account (collectively, "Third Party Services").
We make no representation or warranty regarding any Third Party Site or Third Party Service, including their compatibility with Our Services. You agree that We shall not be responsible for any loss or damage incurred as a result of Your use of any Third Party Sites and/or Third Party Services, whether or not You were linked to or directed to a Third Party Site or Third Party Service through Our Service. You acknowledge that Third Party Sites and Third Party Services may be subject to the applicable third party provider’s terms of service, and you are solely responsible for reviewing and complying with any such terms of service. In no event shall any reference on Our website to any third party, third party website or third party product or service be construed as an approval or endorsement by Us.
Some of Our Services may require You to give us access to or require you to provide login information and password information for Third Party Services. When You provide this information to us or give us access to these third party accounts, You agree that You have all the necessary contractual and legal rights to give Us such access, login information.
We strongly recommend that You seek specialist advice before using or relying on certain tools. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates You should charge Your End Users.
The Services, and all other materials provided by or through Us, including, but not limited to, software, all informational text, software documentation, design of and "look and feel," layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, "Our Intellectual Property"), are owned by Us or other parties that have licensed their material or provided services to Us, and are protected by copyright, trademark, trade secret and other intellectual property laws.
All of Our trademarks and service marks, logos, slogans and taglines, including “Volusion”, are Our property. All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners. Except as otherwise specifically provided herein, nothing should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines of Ours or any third party without Our express written permission, or the express written permission of such party that may own the trademark, service mark, logo, slogan or tagline.
Subject to the limited rights expressly granted to You hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
Subject to this Agreement, We hereby grant You a limited, revocable, non-transferable and non-exclusive license to use Our Intellectual Property to the extent, and only to the extent, necessary to access and use the Purchased Services in accordance with the terms of this Agreement.
You may not (and shall not allow any third party to): (a) use the Services outside of the scope of the limited license herein granted; (b) sublicense, distribute, copy, reproduce, resell, modify, adapt, translate, or prepare derivative works from, to the Services without Our prior written permission; or (c) reverse engineer, disassemble, or decompile any software or otherwise attempt to discover any source code or trade secrets related to the Services.
You may use Our trade name, trademarks, and service marks that are used in connection with our Volusion platform in advertising and publicity in conjunction with Your use of the Purchased Services, provided that You shall submit a copy to Us for prior written approval. However, You need not obtain Our prior written approval where use of Our Volusion marks is limited to inclusion in a list of services via which Your Content is available.
You may not bid on or purchase search engine or other pay-per-click keywords or domain names that use "Volusion " or any name, mark or other identifier used by Us, or any misspellings or similar alterations of any of the foregoing.
For the term of this Agreement, You hereby grant to Us a non-exclusive right and license to Your name, trade names, trademarks, and service marks as are provided to Us in connection with this Agreement for Our use (a) on Our own websites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing Our Services, and (c) as reasonably necessary and ancillary to the foregoing.
If Your Purchased Services include Services that we offer for a fee (“Paid Services”), You agree to pay Us all such fees when due. These fees may include subscription fees, transaction fees and overage fees, the prices and terms of which are indicated in the applicable Order (or if not indicated in the Order, then as listed on Our website). Only Services and features clearly indicated as "free" or "no charge" are free or without charge.
Recurring Fees; Subscription Term; Renewal of Services: To ensure uninterrupted service, We will automatically bill You for certain Paid Services on a recurring basis unless a cancellation request form is completed. The initial term of Your subscription to any Paid Services is for a term of one month, unless otherwise set forth in the applicable Order or noted in the description of such Paid Services on Our website. Except to the extent otherwise provided in the applicable Order, unless You cancel the subscription for such Paid Services in accordance with these Terms of Service prior to the end of the initial term (or, if applicable, the then current renewal term), the subscription for such Paid Services shall automatically renew for successive periods equal in time to the initial term of such subscription until canceled by You.
Cancellation of Service: Unless otherwise provided in the applicable Order, You may cancel a subscription to any Paid Services effective as of the end of the then current term of such subscription by submitting your notice of cancellation of the particular Paid Services to Us via the “Cancel My Plan” feature found in Your Account. A cancellation of a particular Paid Service may not cancel all Services associated with Your Account. You must provide proper notice of cancellation in order to ensure you cancel all Services desired.
Any payments of fees are due upon purchase, and the applicable Paid Services will not begin until payment is received. Payments for Paid Services that are billed on a recurring basis are due on or before the beginning of each term of such subscription. We offer billing only via credit card or debit card. Credit card and debit card information, including card numbers, should be only submitted to Us through our online checkout feature or the administrative features of Our Services or via phone, and should never be sent to us via email, IM, chat or any other method of communication. If you purchase any Paid Services, You agree to allow Us, or our third party service providers, to store Your payment card information. If the payment card You provide expires and You do not provide new payment card information or cancel Your account, You authorize Us to continue billing You and You agree to remain responsible for any uncollected Fees.
It is Your obligation to review all charges for accuracy. Failure to dispute a charge within 45 days following such charge shall constitute Your agreement that such charges are valid and You agree to waive any claims You may have had regarding such charge.
If a payment of Yours to Us is returned or rejected, or incurs additional costs for Us (e.g., bank fees) for any reason, then You may be charged a service fee of $40 per incident and be required to reimburse all such fees and costs incurred by Us.
All amounts that are past due are subject to a late payment penalty of 1.5% per month, or the maximum amount permitted by law, whichever is greater, until fully paid. We will attempt to automatically charge the card on file for any past due invoice for current, suspended and cancelled accounts. Accounts suspended and reactivated must pay all past due and current amounts as well as a reactivation fee any late payment penalties. Accounts past due over 30 days cannot be reactivated and You must sign up for new Services in addition to paying any outstanding amounts due.
We reserve the right to seek collection of all past due amounts (including by referral to third party collectors), plus all reasonable legal fees (including reasonable attorneys’ fees) and costs associated with such collection.
All fees charged by Us for the Services are exclusive of all taxes, VAT and similar fees imposed on the transaction and/or the delivery of Services, all of which You will be responsible for and must pay in full. If We are required to directly pay any such taxes, You must, upon receipt of Our invoice for such taxes, promptly reimburse Us.
All sales are final and We offer no refunds of any kind unless otherwise expressly noted, even if Your Purchased Services are suspended, terminated or transferred.
We expressly reserve the right to change Our prices and payment terms at any time, and such changes shall be posted online on Our website and effective immediately without need for further notice to You.
Any ideas, questions, opinions, recommendations, feedback or other information related, directly or indirectly, to any of Our products and services ("Your Feedback") communicated to Us, whether by email, Our online forums, interactions with our sales or support representatives, including through chat or IM, or other communication, are considered to be non-confidential and non-proprietary. You hereby grant to Us, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicenseable and transferable right and license to incorporate, use, publish and exploit Your Feedback for any purpose whatsoever, commercial or otherwise, without acknowledgment or compensation to You or to anyone else.
All of the following policies are incorporated into this Agreement.
We encourage you to read Our Privacy Policy, and to use the information it contains to help you make informed decisions.
You agree to abide by Our Acceptable Use Policy ("AUP"). We may modify the AUP at any time, and the then-current AUP will be effective upon posting. You acknowledge that our AUP applies to both You and Your End Users, and that We may terminate access to Your Sites with respect to any of Your End Users for their noncompliance with Our AUP, even if such End User has not violated Your own terms and conditions of use of Your Sites.
We support the protection of intellectual property and ask our customers to do the same. It is our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our customers is infringing their intellectual property rights, they can send a DMCA Notice to Our designated agent for copyright complaints. Please see our DMCA Notice and Takedown Policy for further information.
Our Subpoena Policy describe the guidelines and process for our release of data concerning You or Your Account pursuant to a subpoena issued in a civil legal matter or a criminal legal matter or investigation.
The most recent version of the Uniform Name Dispute Resolution Policy can be found at https://www.icann.org/resources/pages/help/dndr/udrp-en
Our Services provide a framework that is certified under the Payment Card Industry Data Security Standard (“PCI DSS”) under optimal security settings and will maintain compliance with the PCI Data Security Standards ("DSS") for the portions of the Purchased Services that store or process credit card data. If You store or process credit card data using the Purchased Services, You agree to implement and maintain reasonable security measures to protect cardholder data in Your possession and You hereby acknowledge Your responsibilities under the PCI DSS. These guidelines can be found at https://www.pcisecuritystandards.org/document_library. You further agree not to take any action, or fail to take any action that is required of You by PCI DSS, when using the Purchased Services that could cause us to not be in compliance with PCI DSS.
At Our discretion, We reserve the right to change the security settings at any time with or without warning and to suspend or terminate the Services for any customer that is suspected or proven to be in violation of PCI DSS.
We will provide the current PCI-DSS Attestation of Compliance to Volusion customers upon written request.
We warrant that Our network will be available 99.9% of the time in any month. For these purposes, network availability for any month is calculated as a percentage by dividing (x) the total minutes in such month, less the minutes of Network Downtime (as defined below), by (y) the total minutes in such month. "Network Downtime" exists when You are unable to transmit and receive data on the Volusion platform and You notify Us of such downtime. Network Downtime shall exclude performance issues: (1) to the extent caused by factors outside of Our reasonable control; (2) that resulted from any actions or inactions of You or any third parties not affiliated with Us, for example a DDOS attack on Your site or another customer's site hosted on the same server; (3) that resulted from Your equipment and/or third party equipment; (4) that resulted from software related issues; or (5) that are scheduled by Us for purposes of maintaining or updating the Services. Network Downtime is measured from the time the trouble ticket is opened by You to the time the server is once again able to transmit and receive data.
If Our network is not available for 99.9% in any month, upon request We will refund You 5% of the monthly fee for each 30 minutes of Network Downtime (up to and not to exceed 100% of customer's monthly fee) that exceeds the amount of Network Downtime that would result in 99.9% network availability. This is Your sole and exclusive remedy for failure to meet the Service Level Warranty. If You fail to notify Us of Network Downtime as required above, or fail to request a Service Level Warranty credit within 30 days of the end of a month, You shall not be entitled to receive such credit for such event or such month.
You irrevocably agree to indemnify, defend and hold harmless Us, Our affiliates, directors, officers, employees and agents from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys’ fees and fees attributable to in house legal personnel, arising from of or related to (i) Your breach of this Agreement or Your violation of any law or rights of any third party, (ii) Your Content and/or Design or (iii)any claim by, on behalf of or against Your End Users, (iv) Your violation of any law or regulation or the rights, including intellectual property rights, of any third party, and (v) any claims of tax authorities of any country, state, province or other jurisdiction levied on sales to Your End Users. This indemnification is in addition to any indemnification required under the UDRP or any similar policy.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT THE SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". WE 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.
WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF OUR WEBSITE OR ANY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO OUR WEBSITE, OR (II) THE SERVICES, AND WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
EXCEPT AS OTHERWISE PROVIDED HEREIN, WE MAKE NO WARRANTY THAT OUR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY AND ACTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY. WE DO NOT WARRANT THAT OUR WEBSITES, SERVERS OR SERVICES OR ANY E-MAIL SENT FROM OUR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY, APPROPRIATENESS, AND LEGALITY OF ALL DATA, DESIGN AND CONTENT WITHIN YOUR SITE; INCLUDING SALES TAX CALCULATIONS, PRODUCT PRICING, AND PRODUCT DESCRIPTIONS, SHIPPING CHARGES, CONTACT INFORMATION, EMAIL COMMUNICATIONS, AND ELECTRONIC PAYMENT PROCESSING.
NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY US OR OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, WHETHER DIRECTLY OR INDIRECTLY, WILL CREATE A WARRANTY OF ANY KIND NOR WILL IT CONSTITUTE PERSONAL, LEGAL OR FINANCIAL ADVICE. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT TAX, LEGAL OR OTHER PROFESSIONALS. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
FURTHER, WE DO NOT MAKE ANY REPRESENTATION OR WARRANTIES THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. YOU USE OUR SERVICE AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY.
THESE DISCLAIMERS 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 WEBSITE OR THE SERVICES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties, so one or more of the disclaimers set forth above may not apply to You.
WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF OUR WEBSITE, THE SERVICES, YOUR CONTENT, THIRD PARTY SERVICES, THIRD PARTY SITES OR THIRD PARTY CONTENT, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE US AND HOLD US AND EACH OF OUR PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OUR WEBSITE, THE SERVICES, YOUR CONTENT, THIRD PARTY SERVICES, THIRD PARTY SITES OR THIRD PARTY CONTENT. YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE.
IN THE EVENT OF ANY PROBLEM WITH OUR WEBSITE, THE SERVICES OR OUR INTELLECTUAL PROPERTY, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SERVICES.
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.
Certain states and/or jurisdictions do not allow the limitation of liability for incidental or consequential damages. Whether or not the exclusions set forth above apply to You shall be determined in accordance with the Governing Law, Forum Selection, and Jurisdiction clause set forth below and not necessarily whether such exclusions are allowed by the jurisdiction in which You reside, are formed, or operate
Except for disputes governed by the Uniform Domain Name Resolution Policy, this Agreement shall in all respects be governed by, interpreted and construed with, according to, and by the laws of the State of Texas, excluding its conflicts of laws rules, and the United States of America.
You hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) the jurisdiction and venue of the Federal District Court for the Western District of Texas, Austin Division (located in Austin, Texas) and the jurisdiction of Texas state courts generally, and specifically in Travis County, Texas, USA. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement. The United Nations Convention on Contracts for the International Sales of Goods does not apply to this Agreement.
You hereby also unconditionally and irrevocably agree that all actions, suits, and/or proceedings arising out of or relating directly or indirectly to or in any way arising out of this Agreement or any ancillary agreement or any other related obligations must be litigated solely and exclusively in the Federal District Court for the Western District of Texas, Austin Division or in the state court of Texas located in Travis County, City of Austin, in Texas. You further agree that such courts are convenient forums.
If a court of competent jurisdiction rules that one or more of the provisions contained in this Agreement is unenforceable in any respect, then such provisions will be modified as necessary to be enforceable while reflecting the parties' original intentions to the greatest extent possible. All remaining provisions of this Agreement shall remain in full force and effect without modification.
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class actions, class arbitrations, private attorney general actions and consolidation with other arbitrations aren't allowed.
This Agreement will remain in effect until all Services have been terminated by either Your or Us in accordance with these Terms of Service. Unless otherwise provided in the applicable Order with respect to Paid Services, You may terminate the Services in accordance with the provisions set forth in Section 9 (Fees and Payments) “Cancelation of Service”. If You terminate any Paid Services prior to the expiration of a subscription term for Paid Services, You will be obligated to pay all fees associated with such subscription to the end of the term.
We may terminate this Agreement and/or Your right to the Services, in whole or in part, at any time and for any reason, including but not limited to, if You violate or breach the terms of this Agreement.
Upon termination of an Order or particular Services by either party, (a) We will cease providing the affected Services to You, You will no longer be able to access Your Account and Your Sites will be taken offline, (b) You will not be entitled to any refunds of any usage fees or any other fees, pro rata or otherwise, unless We terminate Your Paid Service without cause, and (c) any outstanding balance for Your usage of the Paid Services through the effective date of such termination, together with any fees owed for Paid Services for which You have subscribed having an unexpired term through the end of such term, will be immediately due and payable in full.
Sections 9 Fees and Payment, 14 Indemnification, 15 Disclaimer of Warranties and 16 Limitation of Liability shall survive any termination of this Agreement.
In the event You terminate Your use of the Services, moving Your Content and Sites off of Our servers is Your responsibility. We will not transfer Your Content or Sites to another provider.
Except as otherwise specified in this Agreement, all notices and other required communications hereunder shall be in writing and shall be deemed to have been given upon: (i) immediately upon personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email.
Notices to You will be directed to the address and information of record on Your account with Us. Notices to Us should be directed to:
This Agreement represents the entire understanding of the parties with respect to the Services and supersedes all prior and contemporaneous agreements (including, but not limited to, any prior versions of the Terms of Service), written or oral, concerning its subject matter. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation is void and that any acceptance of such order documents by Us shall be for acknowledgment purposes only.
You may not assign this Agreement without Our prior written consent, which We may refuse in Our sole discretion. Any attempt to assign this Agreement without Our prior written permission is deemed null and void. We may assign this Agreement at any time, which shall be effective upon written notice provided to You.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
You may choose to use use certain of Our Services that require You to agree to additional terms.
If You choose to use Our Merchant Services to enable You to accept a transaction payment through a secure channel by use of Your End User’s credit or debit card, You acknowledge that We are providing such services through a third-party service provider (“Our Merchant Service”). Therefore, use of Our Merchant Services is subject to such providers' acceptance of your application and Your acceptance of the providers' terms and conditions.
If You choose to use Our Fraud Score, You agree to the additional terms and conditions found here.
If You choose to use Our Design Services, You agree to the additional terms and conditions found here.
If You choose to use Our Marketing Services, You agree to the additional terms and conditions found here.
If You access Your Sites or Your Account through Our mobile application, You agree that all the terms of this Agreement shall govern such access. In addition, Your use of any mobile application shall also be governed by a separate End User License Agreement.
When purchasing an SSL Certificate, You are required to provide requested information in a timely manner in order to complete the purchase. If You fail to respond to Our inquiries within 30 days or otherwise delay completion of the SSL Certificate process for 30 days or more, such order will be considered completed and You may incur additional fees for reinstating the order or placing a new order.
Norton SSL
If You are purchasing a Norton branded SSL, you agree to be bound by the contract terms applicable to the Product as specified by Norton and published at http://www.verisign.com/repository/subscriber/index.html, or http://www.thawte.com/repository/index.html and You acknowledge that Norton shall be an express third party beneficiary of the obligations contained in this Agreement. Norton may modify its contract terms from time to time and you agree to flow-down such new terms to your new customers. In order to maintain the trust and integrity of the Norton PKI, Norton in its sole discretion retains the right to revoke a customer's Product for activities that Norton considers harmful to the Norton PKI.
Shippo
We offer shipping solutions from Shippo. If You elect to use Our shipping solutions, You acknowledge that Popout, Inc. (d/b/a Shippo) shall be an express third party beneficiary of the obligations contained in this Agreement. Also, if You elect to use Our shipping solutions, You acknowledge that We will share with Popout, Inc. certain Personally Identifiable Information in accordance with Our Privacy Policy.