COMPANY SITE TERMS AND CONDITIONS
Please carefully read this Authorized Use Statement (the “Agreement”) between you and Crexendo® Inc., its subsidiaries, divisions and related entities which are billed herein, and collectively referred to below as the Company. By using our hosting services, you agree to the terms of this Agreement and the limited license granted hereby. You cannot make use of any Company product without this agreement being binding on you and the terms and conditions hereof. If you do not agree to the terms of this license, you should transfer the services to a third party vendor and immediately notify Crexendo®.
1.1 Subject to the terms herein, Company offers to permit you to make use of Company’s web site and your storefronts (collectively, the “Company Site.”) according to the licensing agreement which you signed during the point of purchase, which use is defined as:
1.1.1. Storage of your information on a server owned and maintained by Company; and
1.1.2. Your use, direct and indirect, of certain software proprietary to Company or licensed by Company from third parties, but only for the purpose of using the Company Site.
1.2. Company shall, at its option, have the right at any time to terminate this Agreement if you breach any of its terms or do anything contrary to the laws and regulations by which Company is bound.
1.3. You may not at any time permit your storefronts to be utilized for the provision of any services that compete with any Company services, without Company’s prior written consent.
- License; Payment of Fees
2.1. Subject to the conditions herein, Company hereby grants you a limited, non-exclusive license to Company’s website builder software and to display information through the Company Site.
2.2. Nothing in this Agreement shall be understood to give you anything more than a license to use Company’s software. Company shall remain the sole owner of the software and components that make up the Company Site. You shall not make copies, decompile or alter the software or any other component of Company’s software or the Company Site above and beyond customization of your individual storefronts.
2.3. You understand if you do not use an online processor currently supported in the Company platform and choose to use another processor, additional fees may apply.
2.4. You understand that all changes must be in writing, and that additional fees may apply to changes depending upon type and frequency.
2.5. You understand the Hosting and Support fees as outlined in your Certificate of License.
2.6. In consideration for the granting of a license to store and display information through the Company Site, you agree to pay all fees which are set forth on the Company Site, including but not limited to, recurring monthly fees, and the one-time set-up fee, as applicable. Failure to remit any of these fees on a timely basis shall be a breach of this Agreement, which shall constitute grounds for forfeiture of all payments and the termination of this Agreement.
2.7. You will be fully responsible for any charges, costs, expenses (other than those included in this Agreement), and third party claims that may result from its use of, or access to, the Company Site including, but not limited to, any unauthorized use or any access devices provided by Company hereunder.
- User IDs and Passwords
3.1. You shall be solely responsible for maintaining the security of your Merchant Account User ID and password, and your storefront License IDs and passwords, and for preventing their unauthorized use. Should you become aware that any unauthorized person has obtained or attempted access with your User ID or License ID or password, you shall immediately notify Company and change your password.
3.2. The User ID and License ID shall be used only by you and you shall not transfer or make the User ID or License ID available to any third party.
- User Information and Content
4.1. You shall have the sole responsibility for the preparation and maintenance of the information and data you store or display through the Company Site. Company shall not be responsible for any damages, fault or error in or arising from the incompleteness or inaccuracy of your information.
4.2. You shall have the sole responsibility to periodically review your storefront, whether the site was created by Company or yourself, for accuracy and as to whether it is operating as expected, and either notify Company of an operational issue immediately or take corrective action accordingly. Company shall not be responsible for any damages, fault or error in or arising from any inaccuracy or operability issues of your storefronts.
4.3. You shall have the sole responsibility to periodically maintain your contact information and provide Company with any updates within a reasonable period of time of a change.
4.4. Company shall have the right, in its sole and absolute discretion, to refuse to allow you to utilize the Company Site based upon the nature and content of the information which you intend to store, transmit or sell through the Company Site and which Company determines to be promoting hatred, anything illegal, obscene, “adult material,” pornographic or defamatory in any respect, or deemed inappropriate by Company management, or used or referenced in any unsolicited or inappropriate bulk email effort (the Company does not store nor host email), or in any other unacceptable like manner, but not limited to spamming. While Company does not actively monitor the content of those merchants using the Company Site, Company further reserves the right to terminate your rights hereunder in the event it discovers at any time that you are promoting hatred, anything illegal or storing, transmitting or selling obscene, “adult material,” pornographic or defamatory information, or deemed inappropriate by Company management, or unsolicited or inappropriate bulk email. This also applies if your storefronts were initially approved and have been in production for some time. Acceptance or the allowance of your storefronts’ nature and content is for “suitability” only and does not represent an endorsement by Company for anything presented by or through your storefronts. You accept any and all responsibility arising out of the deactivation of this storefront.
4.5. You agree not to provide Company with any information that would be considered trademark, trade secret, copyright, or patent pending, etc. protected.
4.6. Company acknowledges that all your records, data, files, and other input material are confidential and shall take reasonable steps to protect the confidentiality of such records, data, files, and other materials. Company will provide reasonable safeguards to limit access to merchant’s files and records to you and other authorized parties.
- Interruptions of Service
5.1. You acknowledge that the Internet and related networks may be subject to unscheduled and unannounced outages and breakdowns, which may not be rectified promptly. Additionally, Company reserves the right upon reasonable notice to limit or curtail, late night or early morning, availability when necessary for system upgrades, adjustments, maintenance, or other operational considerations. You assume full responsibility for maintaining a copy of all of your own information and data that you store or display through the Company Site.
- Limitation of Liability
6.1. YOU UNDERSTAND AND AGREE THAT ANY INFORMATION, MATERIAL AND/OR DATA OBTAINED FROM COMPANY OR ANY GOODS OR SERVICES OBTAINED THROUGH COMPANY IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM ANY DOWNLOAD OR OTHER TRANSACTION.
6.2. YOU AGREE THAT COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS AND AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE COMPANY SITE OR FOR COST OR PROCUREMENT OR SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE COMPANY SITE, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA OR ARISING FROM ANY OTHER MATTER RELATING TO THE COMPANY SITE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST OPPORTUNITY OR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU FURTHER AGREE THAT COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS AND AFFILIATES SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICE, INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT. YOU AGREE THAT COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU, OR ANYONE, FOR THE REPRESENTATION OF STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE COMPANY SITE, YOUR STOREFRONT, OR ANY SITE ON THE WORLD-WIDE WEB.
6.3 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6.4 COMPANY’S LIABILITY TO YOU OR ANY OTHER PARTIES IN ANY CIRCUMSTANCES IS LIMITED TO $10 EACH. SOME STATES MAY NOT ALLOW THIS LIMITATION OF LIABILITY, SO THESE LIMITS ON LIABILITY MAY NOT APPLY TO YOU. TO ANY EXTENT THE ULTIMATE LIABLITY IS THE FEES PAID TO CREXENDO FOR THE TWELVE MONTHS PRIOR TO THE INITIATION OF ANY ACTION.
6.5 ANY ARBITRATION ACTION BY YOU AGAINST COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS OR ASSIGNS, BASED UPON ANY ACT OR OMISSION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR SERVICES PERFORMED HEREUNDER, OR ANY ALLEGED BREACH THEREOF, SHALL BE COMMENCED WITHIN SIXTY (60) DAYS OF THE OCCURRENCE GIVING RISE TO SUCH AFFECT THE LIMITATION OF COMPANY’S LIABILITY SET FORTH UNDER SECTION 6 OR ELSEWHERE IN THIS AGREEMENT.
- CONSENT TO BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION: You hereby agree that any and all disputes that arise between them concerning this Agreement or any of the terms of this Agreement, or that concern any aspect of the relationship between Merchant and Company, shall be decided exclusively in binding arbitration conducted by the American Arbitration Association(“AAA”). Merchant and Company further agree that any and all AAA arbitration hearings shall be conducted in one of the following locations as selected by the Merchant: Atlanta, Georgia; Washington, D.C.; Chicago, Illinois; New Orleans, Louisiana; Salt Lake City, Utah; Los Angeles, California; Seattle, Washington; or Dallas, Texas before a single arbitrator. The arbitrator shall be appointed in accordance with the AAA’s Commercial Arbitration Rules. Merchant and Company consent and agree that the AAA shall have exclusive and sole jurisdiction to decide all disputes between Merchant and Company, and Merchant and Company agree that the AAA arbitrator shall exclusively apply Arizona law to the dispute, regardless of and without giving any consideration to any choice of law principles. Merchant and Company agree that the arbitrator shall only have authority to hear individual claims and not representative claims on behalf of a class. The arbitrator further shall not have authority to award damages outside of those detailed in Section 6. Merchant and Company further agree that each party will bear his/her/its own costs and attorneys’ fees incurred in connection with the AAA arbitration proceeding and agree that the AAA arbitrator shall have no power or discretion to make any award of costs or attorneys’ fees. However, in the event that Merchant or Company files any court proceeding in violation of this contractually agreed-upon arbitration requirement, the party who is required to appear in any Court proceeding to defend against such proceeding shall be entitled to an immediate stay and dismissal of such Court proceeding and shall be entitled to an award of all reasonable attorneys’ fees and costs incurred in connection with such Court proceedings. The final decision of the arbitrator shall be furnished in writing and shall constitute a conclusive determination of the issues in question, binding upon the Merchant and Company, and shall not be contested by either of them except as permitted by applicable law. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrators’ award.
7.1 The Company Site (excluding linked sites) is controlled by Company from its Corporate office within the State of Arizona, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Arizona, by accessing this web site, both you and Company agree that the statutes and laws of the state of Arizona, without regard to the conflicts of laws principles thereof, will apply to all matters relating to this Agreement and the use of the Company Site. Company makes no representation that materials on the Company Site are appropriate or available for use in other locations and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Company Site from other locations do so on their own initiative and are responsible for compliance with local laws.
- Negative Covenants and Indemnification
8.1. You shall not obtain or seek to obtain access or interfere with any Company programs or Company Merchants, information or data maintained by other users of the Company Site.
8.2. You shall not use the Company Site to infringe or misappropriate any copyright, patent, trademark, trade secret, or any proprietary rights of a third party; constitute false advertising, unfair competition, invasion of privacy, violate a right of publicity, plagiarism, or transmit or store anything obscene, offensive, or defamatory or for any other unlawful purpose.
8.3. You agree to indemnify, defend and hold harmless Company, its directors, officers, employees, agents, representatives, shareholders and affiliates against any loss, damage or liability (including legal costs on a full indemnity basis) which may be sustained or incurred as a consequence of your breach of or failure to comply with this Agreement, whether the failure is attributable to yourself or to some other person using your account with or without your permission.
8.4. YOU SHALL NOT USE THE COMPANY SITE TO ENGAGE IN INTERNET SPAM. Company does not condone nor support any type of abuse of the Internet, whether through Spam of email, or Usenet, etc. While the Company does not store nor does it actively monitor email this applies to email from other facilities that are in fact used to direct traffic to your storefront. In fact, we tolerate no such abuse.
Company defines Spam as mass email sent to recipients who have not requested mail from you, and/or with a fake return address.
Please note that while we host web sites, and Auto Responders, we DO NOT provide any email services for any of our customers.
It is contrary to Company policy for any Company Merchant to affect or participate in any of the following activities:
8.4.1. To post to any Usenet or other newsgroup, forum, email mailing list or other similar group or list articles that are off-topic according to the charter of that Newsgroup, forum, email mailing list or other similar group.
8.4.2.To send unsolicited email to more than twenty (20) email users, if such unsolicited email could reasonably be expected to provoke complaints.
8.4.3. To falsify user information provided to Company or to other users of the service in connection with use of a Company service; and
8.4.4. To engage in any of the foregoing activities by using the service of another provider, but making reference to a Company Address or channeling such activities through a Company account, Remailer, or otherwise through a Company service or using a Company account as a mail drop for responses or otherwise using the services of another provider for the purpose of facilitating the foregoing activities if such use of another party’s service could reasonably be expected to adversely affect a Company service.
Company considers the above practices to constitute abuse of our service and of the recipients of such unsolicited mailings and/or postings, who often bear the expense. Therefore, Company’s terms and conditions of service prohibit these practices. Engaging in one or more of these practices will result in termination of the offender’s account and/or access to Company services.
In addition, Company reserves the right, where feasible, to implement technical mechanisms which block multiple postings as described above before they are forwarded or otherwise sent to their intended recipients.
8.5. This policy addresses only the kinds of network abuse specifically enumerated above. In addition to these activities, Company’s terms and conditions of service also prohibit other forms of abuse such as harassment and the posting of illegal or unlawful materials, and Company will respond as appropriate to these other activities as well.
Nothing contained in this policy shall be construed to limit Company’s actions or remedies in any way with respect to any of the foregoing activities, and Company reserves the right to take any and all additional actions it may deem appropriate with respect to such activities, including without limitation taking action to recover the costs and expenses of identifying offenders and removing them from the Company service, and levying cancellation charges to cover Company’s costs in the event of disconnection of dedicated access for the causes outlined above. In addition, Company reserves at all times all rights and remedies available to it with respect to such activities at law or in equity.
- Limited Warrant7
9.1. THE COMPANY SITE AND YOUR STOREFRONTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND TITLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9.2. Information on the Company Site may contain technical inaccuracies or typographical errors. Information may be changed or updated without notice. Company may also make improvements and/or changes in the products and/or the programs described in this information at any time without notice. Company recommends that you periodically review the information on the Company Site to ensure that you are current.
9.3. Company makes no representations or warranties whatsoever about any content which you may access through the Company Site. When you access a non-Company web site, you affirm that it is independent from Company, and that Company has no control over the content on that storefront or web site. In addition, a link to a non-Company web site does not mean that Company endorses or accepts any responsibility for the content, or the use, of such web site. It is up to you to take precautions to ensure that whatever you select for your use is free of such items and viruses, worms, trojan horses and other items of a destructive nature.
9.4. Company does not represent or endorse the accuracy or reliability of any of the information, content or advertisements (collectively, the “Materials”) contained on, distributed through, or linked, downloaded or accessed from any of the services contained on your storefronts (the “Service”), nor the quality of any products, information or other materials displayed, purchased, or obtained by you as a result of any advertisement or any other information or offer in or in connection with the Service (the “Products”). You hereby acknowledge that any reliance upon any Materials shall be at your sole risk.
9.5. Company does not and cannot control the flow of data to or from Company’s Site and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided and controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which Company’s Site connections to the Internet (or portions thereof) may be impaired or disrupted. Although Company will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, Company cannot guarantee that they will not occur. Accordingly, Company disclaims any and all liability resulting from or related to such events.
10.1. Company assumes no responsibility for any encrypted data that is sent to, stored on, or retrieved from the Company Site. The technology used to encrypt data being transmitted to or from Company’s server is licensed by Company and Company makes no representations, claims or warranties regarding the viability, integrity or robustness of the encryption used. Further, Company shall not be responsible for the success or failure of the server to properly encrypt data. By using the Company server, you assume the risk that the encryption algorithm may be broken so that the data being transmitted is visible to others.
11.1. In addition to any and all other agreements that you have entered into with Company, this Agreement sets forth the terms hereof shall control notwithstanding any variance with this Agreement of any order submitted by you.
11.2. You understand that the success of your storefronts is dependent upon the salability of your products and services, the amount of time and effort you spend promoting your storefronts, and following the marketing strategies outlined in the Merchants Services section and it is updated from time-to-time. You affirm that you have all rights and authority to direct the representation, offering and sale of the product, service and/or information to be included on your storefront. In addition to the above, you accept any and all conditions governing the use of this website as published. Given the changing nature of the Internet, you understand no guarantees or representations regarding the sales or market suitability of your products/services are offered by Company, nor does Company offer any guarantees associated with this specific advertisement.
11.3. You are fully responsible for any and all transaction-related federal, state, and local taxes.
11.4. You understand that if you have a domain name and choose to have such hosted by Company, that you must contact your domain registration provider and request to have your domain transferred. You understand that the transfer time is dependent upon the registration provider and the propagation time throughout the Internet, and not dependent upon Company.
11.5. You understand that the Company trailer may be added to the end of your storefront.
11.6. If you have Company program your storefront, you agree not to advertise your storefront, either online or in any traditional marketing method, until you have received written confirmation that your storefront is completed and available for Internet traffic, and you have personally confirmed such.
11.7. You understand that if you have Company program your storefronts, that the actual time to program depends on the size and complexity of your storefronts, receipt of all of your information, the amount of other storefronts that are under-development, and your timely review and cooperation working with the Company programmers.
11.8. Company Site information is subject to change without notice. In an effort to provide our customers with the most current information, Company will, from time to time, make changes in the contents and in the products or services described on the Company Site. Company recommends that you periodically review this information to ensure that you are current
11.9. Company Site information is subject to change without notice. Company may revise these terms and conditions of use by updating this posting at any time. By using the Company Site, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current terms and conditions of use to which you are bound. You agree that, in the event any portion of these Company Site Terms and Conditions of use are found to be unenforceable, the remainder of the Company Site terms and conditions shall remain in full force and effect. Company recommends that you periodically review the terms and conditions to ensure that you are current.
11.10. Company does not screen, review or control the listings and items being offered to users in the various storefronts, nor does it screen, review or control any of the merchants or other people who utilize Company storefronts (your “Buyers”). Company does not have any involvement in the completion of your transaction, including but not limited to, any refunds or warranties offered. When you use the Company Site, you and your Buyers are completely responsible for working out the sale and exchange. Company does not have authority to act for either you or your Buyer.
11.11. Because Company is not involved in the transactions between you and your Buyers, you hereby release Company, its directors, officers, employees, representatives, agents, shareholders and affiliates from any and all claims, demands and damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, listings, uncompleted or completed transactions or items offered or actually sold.
11.12. Except for the obligation to pay money, neither you or Company will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause; and (b) uses its reasonable commercial effort to correct promptly such failure or delay in performance.