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SERVICE AGREEMENT
Version 1.2
1. INTRODUCTION. In this Service Agreement ("Agreement"), "you"
and "your" refer to each customer ("Customer") and its agents,
including each person listed in your account information as being associated
with your account, and "we", "us" and "our" refer
collectively to our company, Moxie.com, a division of S. H. Pierce & Co.
This Agreement explains our obligations to you, and your obligations to us in
relation to the S. H. Pierce & Co. service(s) you purchase. By purchasing
or otherwise applying for S. H. Pierce & Co. service(s), you agree to establish
an account with us for such services. When you use your account or permit someone
else to use your account to purchase or otherwise acquire access to additional
S. H. Pierce & Co. service(s) or to modify or cancel your S. H. Pierce & Co. service(s) (even if we were not notified of such authorization), this Agreement
as amended covers any such service or actions. Additionally, you agree that
each person listed in your account information as being associated with your
account for any services provided to you is your agent with full authority to
act on your behalf with respect to such services in accordance with the permissions
granted, and that the agent shall have the authority, without limitation, to
terminate, transfer (where transfer is permitted by the Agreement), or modify
such services or your account information, or purchase additional services.
Any acceptance of your application(s) or requests for our services and the performance
of our services will occur at our offices in Boston, MA, the location of our
principal places of business. Except as otherwise expressly set forth in this
Agreement, you agree that if you list, directly or by default, S. H. Pierce & Co. as a contact for your account and/or any of the services in your account,
we have the right, without notice, to remove our name and/or information from
any such account or service and to replace the same with the name and/or information
2. VARIOUS SERVICES. Sections 1 through 30 apply to any and all S. H. Pierce & Co. services that you purchase. The terms and conditions set forth
in the Schedules of this Agreement apply only to customers who have purchased
the S. H. Pierce & Co. services referenced in those Schedules. In the event
of any inconsistency between the terms of Sections 1 through 30 and the terms
of the Schedules, the terms of the Schedules shall control with regard to the
applicable S. H. Pierce & Co. service. IMPORTANT NOTICE CONCERNING BUNDLED
SERVICES: If you purchase S. H. Pierce & Co. services that are sold together
as a "bundled" package (e.g., you select a website package that includes
both a domain name and a S. H. Pierce & Co. website, as opposed to your
purchasing such services separately), termination of any part of the services
will result in termination of all S. H. Pierce & Co. services provided as
part of the bundled package. Please see Section 10 of this Agreement for more
information. You acknowledge and agree that some or all of the services you
purchase or receive from us may be provided by one or more vendors, contractors
or affiliates selected by S. H. Pierce & Co. in its sole discretion.
3. FEES, PAYMENT AND TERM OF SERVICE. As consideration for the
services you purchased, you agree to pay S. H. Pierce & Co. the applicable
service(s) fees set forth on our Website at the time of your selection, or,
if applicable, upon receipt of your invoice from S. H. Pierce & Co. All
fees are due immediately and are non-refundable, except as otherwise expressly
noted in one or more of the Schedules to this Agreement or as such fees are
billed by S. H. Pierce & Co. under an invoice to a Customer that expressly
permits payment for Services by a Customer within thirty (30) days after S. H. Pierce & Co. has sent the Customer such invoice ("Net-30 Customers").
S. H. Pierce & Co. may require a Customer to successfully complete a credit
application prior to such Customer qualifying to become a Net-30 Customer. Customers
who purchase Service(s) through outbound telemarketing and request cancellation
of Service(s) within ten (10) days of purchase are entitled to a refund of all
fees. If you qualify, we may extend payment terms to you under our Business
Account Credit Program. S. H. Pierce & Co. will charge you a processing
fee if you terminate or cancel any package prior to the completion of any limited
money-back guarantee time period for that package or service (the "Processing
Fee"). A Processing Fee may be charged for the cancellation of any one-year
annual package to cover our unrecoverable expenses including but not limited
to domain registrations and/or website hosting services purchased by us on your
behalf. The Processing Fees for cancellation of multi-year packages will not
to exceed the purchase price of the package(s). Unless otherwise specified herein
or on our Website, each S. H. Pierce & Co. service is for a one-year initial
term and renewable thereafter for successive one to ten-year terms, as set forth
during the renewal process. Any renewal of your services with us is subject
to our then current terms and conditions, including, but not limited to, successful
completion of any applicable authentication procedure, and payment of all applicable
service fees at the time of renewal and in the case of domain name re-registration,
the domain name registry´s acceptance of the domain name registration.
Except with respect to service to which you subscribe on a monthly basis, we
will endeavor to, at a courtesy and without obligation or requirement, provide
you an electronic or written reminder prior to the renewal of your services
in advance of the renewal date. Additional payment terms may apply to the S. H. Pierce & Co. services you purchase, as set forth in the applicable Schedules
to this Agreement. Pricing for services, renewals, and product upgrades and
add-ons may vary based upon the date of your purchase. We may provide you with
an opportunity to "opt in" to our automatic renewal process in accordance
with the instructions (and subject to your agreement to the terms and conditions
pertaining to that process) on our Website. You agree that if you use of our
auto-renew service, we will attempt to renew your service approximately thirty
(30) days prior to its expiration , for the same term then-currently in place
for the service, and at the then-current price for the service. You acknowledge
and agree that the renewal price may be higher or lower than the price you paid
for the then-current term of the service, and that we are authorized to charge
your credit card or other payment method (such as PayPalÂ) on file for the renewal
of the service(s). In any event, you are solely responsible for the credit card
or payment information you provide to S. H. Pierce & Co. and must promptly
inform S. H. Pierce & Co. of any changes thereto (e.g., change of expiration
date or account number). In addition, you are solely responsible for ensuring
the services are renewed. Rush orders requiring our timely service and/or approval
may require payment of a Priority Fee. S. H. Pierce & Co. shall have no
liability to you or any third party in connection with the renewal as described
herein, including, but not limited to, any failure or errors in renewing the
services. In order to process a renewal under our auto-renew service, we may
use third-party vendors for the purpose of updating the expiration date and
account number of your credit card or payment method on file. Such third-party
vendors maintain relationships with various credit card issuers and may be able
to provide us with the updated expiration date and account number for your credit
card by comparing the information we have on file with the information the third-party
has on file. By selecting our auto-renew service, you acknowledge and agree
that we may share your credit card or other payment method information with
such a third-party vendor for the purpose of obtaining any update to your credit
card expiration date, account number, or payment account. You agree to pay all
value added, sales and other taxes (other than taxes based on S. H. Pierce & Co. income) related to S. H. Pierce & Co. services or payments made by you
hereunder. All payments of fees for S. H. Pierce & Co. services s hall be
made in U.S. dollars. Set up fees, if any, will become payable on the applicable
effective date for the applicable S. H. Pierce & Co. services. All sums
due and payable that remain unpaid after any applicable cure period herein will
accrue interest as a late charge of 1.5% per month or the maximum amount allowed
by law, whichever is less. In the event of non-payment by a Net-30 Customer
on any amount of any invoice, S. H. Pierce & Co. reserves the right to refer
such invoice and Net-30 Customer to a collection agency in order for S. H. Pierce & Co. to secure payment on the invoice. S. H. Pierce & Co. may terminate
any or all of the Services of a Net-30 Customer who fails to pay an invoice
in a timely fashion. S. H. Pierce & Co. may charge a late fee(s) to Net-30
Customers for late payment of an invoice or a reinstatement fee(s) to Net-30
Customers who wish to reinstate Service(s) that have been terminated due to
non-payment.
4. ACCURATE INFORMATION. You agree to: (1) provide certain true, current,
complete and accurate information about you as required by the application process;
and (2) maintain and update according to our modification procedures the information
you provided to us when purchasing our services as needed to keep it current,
complete and accurate. We rely on this information to send you important information
and notices regarding your account and our services. You agree that S. H. Pierce & Co. (itself or through its third party service providers) is authorized,
but not obligated, to use Coding Accuracy Support System (CASS) certified software
and/or the National Change of Address program (and/or such other systems or
programs as may be recognized by the United States Postal Service or other international
postal authority for updating and/or standardizing address information) to change
any address information associated with your account (e.g., registrant address,
billing contact address, etc.), and you agree that S. H. Pierce & Co. may
use and rely upon any such changed address information for all purposes in connection
with your account (including the sending of invoices and other important account
information) as though such changes had been made directly by you.
5. PRIVACY. Our Privacy Policy for Websites and/or value added services, located on our Website and incorporated
herein by reference, sets forth your and our rights and responsibilities with
regard to your personal information. You agree that we, in our sole discretion,
may modify our privacy policy. We will post such revised statement on our Website
at least thirty (30) calendar days before it becomes effective. You agree that,
by using our services after modifications to the privacy policy become effective,
you have agreed to these modifications. You acknowledge that if you do not agree
to any such modification, you may terminate this Agreement. We will not refund
any fees paid by you if you terminate your Agreement with us except as otherwise
expressly provided in one or more of the Schedules attached hereto. We will
not process the personal data that we collect from you in a way incompatible
with the purposes and other limitations described in our Privacy Policy. You
represent and warrant that you have provided notice to, and obtained consent
from, any third party individuals whose personal data you supply to us as part
of our services with regard to: (i) the purposes for which such third party´s
personal data has been collected, (ii) the intended recipients or categories
of recipients of the third party´s personal data, (iii) which parts of
the third party´s data are obligatory and which parts, if any, are voluntary;
and (iv) how the third party can access and, if necessary, rectify the data
held about them. You further agree to provide such notice and obtain such consent
with regard to any third party personal data you supply to us in the future.
We are not responsible for any consequences resulting from your failure to provide
notice or receive consent from such individuals nor for your providing outdated,
incomplete or inaccurate information.
6. OWNERSHIP. Except as otherwise set forth herein, all right, title
and interest in and to all, (i) registered and unregistered trademarks, service
marks and logos; (ii) patents, patent applications, and patentable ideas, inventions,
and/or improvements; (iii) trade secrets, proprietary information, and know-how;
(iv) all divisions, continuations, reissues, renewals, and extensions thereof
now existing or hereafter filed, issued, or acquired; (v) registered and unregistered
copyrights including, without limitation, any website templates, images, graphics
incorporated into website templates, forms, audiovisual displays, text, software
and (vi) all other intellectual property, proprietary rights or other rights
related to intangible property which are used, developed, comprising, embodied
in, or practiced in connection with any of the S. H. Pierce & Co. services
identified herein ("S. H. Pierce & Co. Intellectual Property Rights")
are owned by S. H. Pierce & Co. or its licensors, and you agree to make
no claim of interest in or ownership of any such S. H. Pierce & Co. Intellectual
Property Rights. You acknowledge that no title to the S. H. Pierce & Co.
Intellectual Property Rights is transferred to you, and that you do not obtain
any rights, express or implied, in the S. H. Pierce & Co. or its licensors´
service, other than the rights expressly granted in this Agreement. To the extent
that you create any Derivative Work (any work that is based upon one or more
preexisting versions of a work provided to you, such as an enhancement or modification,
revision, translation, abridgement, condensation, expansion, collection, compilation
or any other form in which such preexisting works may be recast, transformed
or adapted) such Derivative Work shall be owned by S. H. Pierce & Co. and
all right, title and interest in and to each such Derivative Work shall automatically
vest in S. H. Pierce & Co. S. H. Pierce & Co. shall have no obligation
to grant you any right in any such Derivative Work.
7. EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM. YOU
AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY,
OR OTHERWISE, WITH RESPECT TO ANY S. H. PIERCE & CO. SERVICE(S) PROVIDED
UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED
TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT.
IN NO EVENT SHALL S. H. PIERCE & CO., ITS LICENSORS AND CONTRACTORS (INCLUDING,
BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION
SERVICE FOR WEBSITES FROM S. H. PIERCE & CO.) BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF S. H. PIERCE & CO.
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE
DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN
S. H. PIERCE & CO.´S LIABILITY IS LIMITED TO THE EXTENT PERMITTED
BY LAW IN SUCH STATES. S. H. Pierce & Co. and its licensors and contractors
disclaim any and all loss or liability resulting from, but not limited to: (1)
loss or liability resulting from access delays or access interruptions; (2)
loss or liability resulting from data non-delivery or data mis-delivery; (3)
loss or liability resulting from acts of god; (4) loss or liability resulting
from the unauthorized use or misuse of your account number, password or security
authentication option; (5) loss or liability resulting from errors, omissions,
or misstatements in any and all information or service(s) provided under this
agreement; (6) loss or liability relating to the deletion of or failure to store
e-mail messages; (7) loss or liability resulting from the development or interruption
of your website or your S. H. Pierce & Co. website; (8) loss or liability
from your inability to use our e-mail service, order form, website manager service
or any component of the subscription service (for websites from S. H. Pierce & Co.); (9) loss or liability that you may incur in connection with our
processing of your application for our services, our processing of any authorized
modification to the domain name record or your agent´s failure to pay
any fees, including the initial registration fee or re-registration fee; (10)
loss or liability that you may incur due to our inability, for any reason and
without notice provided to you, to renew a domain name upon expiration (11)
loss or liability that you may incur due to our inability, for any reason and
without notice provided to you, to renew your website hosting plan upon expiration
(12) loss or liability relating to limitations, incompatibilities, defects,
or other problems with compatibility between your website and other software
including but not limited to Internet browser applications (13) loss or liability
due that you may incur due to changes required by S. H. Pierce & Co. to
cure third-party claims including but not limited to third-party copyright,
trademark or patent disputes (14) loss or liability as a result of the application
of our dispute policy; or (15) loss or liability relating to limitations, incompatibilities,
defects, or other problems associated with products purchased from S. H. Pierce & Co., whether or not under S. H. Pierce & Co. sole control. YOU AGREE
THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF
ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST
BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH
CLAIM SHALL BE FOREVER BARRED.
8. DISCLAIMER OF WARRANTIES. YOU AGREE THAT YOUR USE OF OUR SERVICE(S)
OR OUR LICENSORS´ SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT
ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE"
BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. WE AND OUR LICENSORS EXPRESSLY
DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. NEITHER S. H. PIERCE & CO. NOR OUR LICENSORS
MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET YOUR REQUIREMENTS,
OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE;
NOR DO WE OR OUR LICENSORS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION
OBTAINED THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR
DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE
AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR
ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD
OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES
PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED
INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO
THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME
OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND
SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED
BY YOU FROM A THIRD PARTY.
9. INDEMNITY. You agree to release, indemnify, defend and hold harmless
S. H. Pierce & Co. and any of our (or their) contractors, agents, employees,
officers, directors, shareholders, affiliates and assigns from all liabilities,
claims, damages, costs and expenses, including reasonable attorneys´ fees
and expenses, relating to or arising out of (a) this Agreement or the breach
of your warranties, representations and obligations under this Agreement, (b)
the S. H. Pierce & Co. services or your use of such services, including
without limitation infringement or dilution by you, or someone else using our
service(s) from your computer, (c) any intellectual property or other proprietary
right of any person or entity, (d) a violation of any of our operating rules
or policies relating to the service(s) provided, (e) any information or data
you supplied to S. H. Pierce & Co., including, without limitation, any misrepresentation
in your application, if applicable, (f) the inclusion of meta-tags or other
elements in any website created for you or by you via the S. H. Pierce & Co. services, or (g) any information, material, or services available on your
licensed S. H. Pierce & Co. Website . When we are threatened with suit or
sued by a third party, we may seek written assurances from you concerning your
promise to indemnify us; your failure to provide those assurances may be considered
by us to be a material breach of this Agreement. We shall have the right to
participate in any defense by you of a third-party claim related to your use
of any of the S. H. Pierce & Co. services, with counsel of our choice at
our own expense. We shall reasonably cooperate in the defense at your request
and expense. You shall have sole responsibility to defend us against any claim,
but you must receive our prior written consent regarding any related settlement.
The terms of this paragraph will survive any termination or cancellation of
this Agreement.
10. TERMINATION.
a. By You. You may terminate this Agreement for any and all of our services
upon at least thirty (30) days written notice to S. H. Pierce & Co. for
any reason. You may terminate this Agreement for any packaged service, at any
time during the purchased term and for any reason, by initiating a termination
of service for the package through your Account page on our website.
b. By Us. We may terminate this Agreement or any part of the S. H. Pierce & Co. services at any time in the event you breach any obligation hereunder, fail
to respond within ten (10) calendar days to an inquiry from us concerning the
accuracy or completeness of the information referred to in Section 4 of this
Agreement, if we determine in our sole discretion that you have violated the
S. H. Pierce & Co. Acceptable Use Policy
incorporated herein and made part of this Agreement by reference, if we are
unable to provide a renewal service under paragraph 6 of Schedule R of this
Agreement, or upon thirty (30) days prior written notice if we terminate or
significantly alter a product or service offering.
c. Effect of Termination. Except as otherwise expressly set forth herein or
on our Website, S. H. Pierce & Co. will cease charging your credit card,
if applicable, for any renewable service fees associated with packages that
you have purchased, as of the expiration of the billing cycle in which the termination
is effective. Unless otherwise specified in writing by S. H. Pierce & Co.
or in paragraph 6 of Schedule R of this Agreement, you will not receive any
refund for payments already made by you as of the date of termination. If termination
of this Agreement is due to your default hereunder, you shall bear all costs
of such termination, including any reasonable costs S. H. Pierce & Co. incurs
in closing your account. You agree to pay any and all costs incurred by S. H. Pierce & Co. in enforcing your compliance with this Section. Upon termination,
you shall destroy any copy of the materials licensed to you hereunder and referenced
herein. You agree that upon termination or discontinuance for any reason, we
may delete all information related to you on the S. H. Pierce & Co. service,
if applicable.
d. In addition to the terms set forth in subsection 10(c) above, if you purchase
S. H. Pierce & Co. services which are sold together as part of a "bundled"
or website package of services, any termination relating to such bundle or website
solutions will terminate all S. H. Pierce & Co. services included in such
bundle or website solutions. For instance, without limiting the generality of
the foregoing, any domain name registered by S. H. Pierce & Co. under this
Agreement will be cancelled and may thereafter be available for registration
by another party. Upon the effective date of termination, S. H. Pierce & Co. will no longer provide the bundled services or website solutions to you,
any licenses granted you shall immediately terminate, and you shall cease using
such services immediately; provided, however, that we may, in our sole discretion
and subject to your agreeing to be bound by the applicable agreement(s) and
to pay the applicable fees, if any, allow you to convert certain services included
in the bundled services or website solutions to stand alone services. Should
you or we cancel or terminate your website solutions services at any time prior
to the completion of the one-year term, such cancellation or termination may
result in an early termination fee charged to your account if said fee is expressed
to you prior to your purchase, or if said fee is approved by you after termination.
e. Post-termination services. S. H. Pierce & Co. may provide assistance
to you subsequent to termination of a purchased packaged service. We may, for
example, unbundle a website package or facilitate your transfer of a domain
name registered by us to a domain name registrar of your choosing. Such services
and offers of post-termination services are provided by S. H. Pierce & Co.
as a courtesy without obligation. Termination under Section 10(a) must be initiated
by you no fewer than thirty (30) days prior to the pre-existing renewal date
of the S. H. Pierce & Co. package plan associated with the domain name and
subject to reasonable transfer schedule restrictions of Schedule A, in order
for us to complete our internal approvals, third-party authorizations and effective
notice to you. Post-termination services, if any, are provided at no expense
to you under this Agreement and may be denied by us for any reason. You accept
responsibiliy for all costs associated with termination of service under section
10(a) and post-termination services, including domain name transfer fee(s) or
other fees of your third-party agents, assigns, registrars and providers. Post-termination
services do not apply to packages not purchased by you, or purchases for which
you have received a full or partial refund of the purchase price, or for services
terminated within 30 days of activation of service.
11. REPRESENTATIONS AND WARRANTIES. You agree and warrant that: (i) neither
your registration nor use of the any of the S. H. Pierce & Co. services
nor the manner in which you intend to use such S. H. Pierce & Co. services
will directly or indirectly infringe the legal rights of a third party, (ii)
you have all requisite power and authority to execute this Agreement and to
perform your obligations hereunder, (iii) you have selected the necessary security
and password option(s) for your records, (iv) you are of legal age to enter
into this Agreement (or you are at least 13 years of age and have your parents´
permission to apply for services hereunder); and (vi) you agree to comply with
all applicable laws and regulations.
12. MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this
Agreement, you agree, during the term of this Agreement, that we may: (1) revise
the terms and conditions of this Agreement; and/or (2) change part of the services
provided under this Agreement at any time. Any such revision or change will
be binding and effective 30 days after posting of the revised Agreement or change
to the service(s) on S. H. Pierce & Co. Websites, or upon notification to
you by e-mail or United States mail. You agree to periodically review our Websites,
including the current version of this Agreement available on our Websites, to
be aware of any such revisions. If you do not agree with any revision to the
Agreement, you may terminate this Agreement at any time by providing us with
notice. Notice of your termination will be effective on receipt and processing
by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable,
except as expressly noted otherwise in one or more of the Schedules to this
Agreement, but you will not incur any additional fees. By continuing to use
S. H. Pierce & Co. services after any revision to this Agreement or change
in service(s), you agree to abide by and be bound by any such revisions or changes.
We are not bound by nor should you rely on any representation by (i) any agent,
representative or employee of any third party that you may use to apply for
our services; or in (ii) information posted on our Website of a general informational
nature. No employee, contractor, agent or representative of S. H. Pierce & Co. is authorized to alter or amend the terms and conditions of this Agreement.
13. ACCOUNT ACCESS. To access or use the S. H. Pierce & Co. services
or to modify your account, you may be required to establish an account and obtain
a login name, account number, password and/or passphrase. You authorize us to
process any and all account transactions initiated through the use of your password
and/or passphrase. You are solely responsible for maintaining the confidentiality
of your password and passphrase. You must immediately notify us of any unauthorized
use of your password or passphrase, and you are responsible for any unauthorized
activities, charges and/or liabilities made through your password or passphrase.
In no event will we be liable for the unauthorized use or misuse of your login
name, account number, password or passphrase. You agree that we may log off
any account that is inactive for an extended period of time.
14. AGENTS. You agree that, if your agent, (e.g., your primary contact
as registered with your account) purchased our service(s) on your behalf, you
are nonetheless bound as a principal by all terms and conditions herein, including
the domain name dispute policy. Your continued use of our services ratifies
any unauthorized actions of your agent. By using your login name, account number
or password, or otherwise purporting to act on your behalf, your agent certifies
that he or she is authorized to apply for our services on your behalf, that
he or she is authorized to bind you to the terms and conditions of this Agreement,
that he or she has apprised you of the terms and conditions of this Agreement,
and that he or she is otherwise authorized to act on your behalf. In addition,
you are responsible for any errors made by your agent.
15. OTHER POLICIES. In addition to the terms and conditions set forth
in this Agreement, the purchase of services may make other S. H. Pierce & Co. Policies applicable to you and the use of our services. In making a purchase
of our services, you agree to the terms set forth in these policies. S. H. Pierce & Co. reserves the right to make changes to these policies. You agree to
periodically review the policies in our Terms of Use to be aware of any such
revisions.
16. RIGHT OF REFUSAL. We, in our sole discretion, reserve the right to
refuse to register your chosen domain name, issue you a digital certificate,
or register you for other S. H. Pierce & Co. service(s), or to facilitate
the deletion of your chosen domain name within the first thirty (30) calendar
days from receipt of your payment for such services. In the event we do not
register your chosen domain name, issue you a digital certificate, or register
you for other S. H. Pierce & Co. service(s), or we facilitate the deletion
of your chosen domain name or other S. H. Pierce & Co. service(s) within
such thirty (30) calendar day period, we agree to refund any applicable fee(s)
you have paid. You agree that we shall not be liable to you for loss or damages
that may result from our refusal to register your chosen domain name, refusal
to issue a digital certificate, the deletion of your chosen domain name or refusal
to register you for other S. H. Pierce & Co. service(s).
17. NOTICES AND ANNOUNCEMENTS. (a) Except as expressly provided otherwise
herein, all notices to S. H. Pierce & Co. shall be in writing and delivered
via overnight courier or certified mail, return receipt requested to S. H. Pierce & Co., 21 Wormwood St. #215, Boston, MA, 02210. All
notices to you shall be delivered to your mailing address or e-mail address
(if provided) as provided in your account information (as updated by you pursuant
to this Agreement) or to any e-mail address associated with your account(s)
with S. H. Pierce & Co. (b) You authorize us to contact you as our customer
via telephone, at the number provided by you in your account information (as
updated by you pursuant to this Agreement), which telephone number is incorporated
herein by reference, e-mail or postal mail regarding information that we deem
is of potential interest to you. Notices and announcements may include commercial
e-mails, telephone solicitations and other notices describing changes, upgrades,
new products and services or other information pertaining to Internet security
or to enhance your identity on the Internet and/or other relevant matters.
18. SEVERABILITY. You agree that the terms of this Agreement are severable.
If any term or provision is declared invalid or unenforceable, in whole or in
part, that term or provision will not affect the remainder of this Agreement;
this Agreement will be deemed amended to the extent necessary to make this Agreement
enforceable, valid and, to the maximum extent possible consistent with applicable
law, consistent with the original intentions of the parties; and the remaining
terms and provisions will remain in full force and effect.
19. ENTIRE AGREEMENT. You agree that this Agreement, the rules and policies
incorporated by reference in this Agreement (including, without limitation,
the dispute policy and the Privacy Policy) are the entire, complete and exclusive
agreement between you and us regarding our services and supersede all prior
agreements and understandings, whether written or oral, or whether established
by custom, practice, policy or precedent, with respect to the subject matter
of this Agreement, including, without limitation, any purchase order provided
by you for the services.
20. ASSIGNMENT AND RESALE. Except as otherwise set forth herein, your
rights under this Agreement are not assignable or transferable. Any attempt
by your creditors to obtain an interest in your rights under this Agreement,
whether by attachment, levy, garnishment or otherwise, renders this Agreement
voidable at our option. You agree not to reproduce, duplicate, copy, sell, resell
or otherwise exploit for any commercial purposes any of the services (or portion
thereof) without S. H. Pierce & Co. prior express written consent.
21. GOVERNING LAW.
a. You and S. H. Pierce & Co. agree that this Agreement and any disputes
hereunder shall be governed in all respects by and construed in accordance with
the laws of the Commonwealth of Massachusetts, United States of America, excluding
its conflict of laws rules. You and we each agree to submit to exclusive subject
matter jurisdiction, personal jurisdiction and venue of the appropriate District
Court for the address within Massachusetts for the offices of S. H. Pierce & Co., any disputes between you and S. H. Pierce & Co. under, arising out
of, or related in any way to this Agreement (whether or not such disputes also
involve other parties in addition to you and S. H. Pierce & Co.). If there
is no jurisdiction for any such disputes, you and we agree that exclusive jurisdiction
and venue shall be in the courts of Suffolk and/or Middlesex County, Massachusetts.
b. Reserved.
c. The parties hereby waive any right to jury trial with respect to any action
brought in connection with this Agreement.
d. The application of the United Nations Convention of Contracts for the International
Sale of Goods is expressly excluded.
22. AGREEMENT TO BE BOUND. By applying for a S. H. Pierce & Co. service(s)
through our online application process or otherwise, or by using the service(s)
provided by S. H. Pierce & Co. under this Agreement, you acknowledge that
you have read and agree to be bound by all terms and conditions of this Agreement
and documents incorporated by reference.
23. INDEPENDENT PARTIES. Neither party nor their employees, consultants,
contractors or agents are agents, employees or joint ventures of the other party,
and they do not have any authority to bind the other party by contract or otherwise
to any obligation. Each party shall ensure that the foregoing persons shall
not represent to the contrary, either expressly, implicitly, by appearance or
otherwise.
24. WAIVER. No waiver of any provision of this Agreement shall be effective
unless it is in writing and signed by an authorized representative of S. H. Pierce & Co. The remedies of S. H. Pierce & Co. under this Agreement
shall be cumulative and not alternative, and the election of one remedy for
a breach shall not preclude pursuit of other remedies. The failure of a party,
at any time or from time to time, to require performance of any obligations
of the other party hereunder shall not affect its right to enforce any provision
of this Agreement at a subsequent time, and the waiver of any rights arising
out of any breach shall not be construed as a waiver of any rights arising out
of any prior or subsequent breach.
25. EXPORT RESTRICTIONS. You acknowledge and agree that you shall not
import, export, or re-export directly or indirectly, any commodity, including
your products incorporating or using any S. H. Pierce & Co. services in
violation of the laws and regulations of any applicable jurisdiction.
26. U.S. Government Users. In the event any software is provided
by S. H. Pierce & Co. to a U.S. Government User, the software and accompanying
documentation which are used as part of the S. H. Pierce & Co. service are
"commercial items," as such terms are defined at 48 C.F.R. 2.101 (Oct
1995), consisting of "commercial computer software" and "commercial
computer software documentation," as such terms are used in 48 C.F.R. 12.212
(Sep 1995) and is provided to the U.S. Government only as a commercial end item.
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4
(Jun 1995), all U.S. Government entities acquiring the use of the Service and
accompanying documentation shall have only those rights set forth herein.
27. FORCE MAJEURE. Neither party shall be deemed in default hereunder,
nor shall it hold the other party responsible for, any cessation, interruption
or delay in the performance of its obligations hereunder due to causes beyond
its control including, but not limited to: earthquake; flood; fire; storm; natural
disaster; act of God; war; terrorism; armed conflict; labor strike; lockout;
boycott; supplier failures, shortages, breaches, or delays; or any law, order
regulation, direction, action or request of the government, including any federal,
state and local governments having or claiming jurisdiction over S. H. Pierce & Co., or of any department, agency, commission, bureau, corporation or
other instrumentality of any federal, state, or local government, or of any
civil or military authority; or any other cause or circumstance, whether of
a similar or dissimilar nature to the foregoing, beyond the reasonable control
of the affected party, provided that the party relying upon this section (i)
shall have given the other party written notice thereof promptly and, in any
event, within five (5) days of discovery thereof and (ii) shall take all steps
reasonably necessary under the circumstances to mitigate the effects of the
force majeure event upon which such notice is based; provided further, that
in the event a force majeure event described in this Section extends for a period
in excess of thirty (30) days in the aggregate, S. H. Pierce & Co. may immediately
terminate this Agreement.
28. HEADINGS. The section headings appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or describe
the scope or extent of such section or in any way affect such section.
29. COURTESY SERVICES. As a courtesy to our customers, S. H. Pierce & Co. may take additional steps to ensure customer satisfaction. Steps taken by
S. H. Pierce & Co. may include the provision for a customer approval period
prior to billing, the processing of partial or full refunds for disatisfied
customers, the provision of a customer approval period prior to the customer's
confirmation of a purchase, or other improvised solutions based on a mutual
agreement between us and a customer. Such steps may be expressed on our website,
in our advertising, in written or oral communications between you and our employees
or agents. Such steps may be unique to a particular customer concern. No actions,
guarantees, warrantees, offers or cures that are expressed or provided to you
will supercede the provisions of this service agreement unless stated in writing
by an officer of S. H. Pierce & Co.
30. SURVIVAL. In the event this Agreement terminates as provided herein,
Sections 1, 2, 3, 6, 7, 8, 9, 10(c), 10(d), 10(e), 14, and 17 through 30 of
this Agreement shall survive such expiration or termination.
SERVICE SPECIFIC TERMS: The following terms apply in addition to Sections 1
through 30 only if you have purchased the particular service described:
SCHEDULE A TO S. H. PIERCE & CO. SERVICE AGREEMENT
ADDITIONAL TERMS APPLICABLE TO CUSTOMERS PURCHASING PACKAGES WHICH INCLUDE
DOMAIN NAME REGISTRATION(S)
S. H. Pierce & Co. exclusively uses ICANN approved registrars (e.g. GoDaddy,
Network Solutions, et. al.) to register domain names purchased with our products
and services. Your acceptance of the terms of this agreement upon purchase of
any package that includes a domain name authorizes S. H. Pierce & Co. to
register domain name(s) with third-party ICANN approved registrars. S. H. Pierce & Co. may register you, according to information you provide, as the Administrative,
Technical and/or Registration contact (e.g. registrant) with an ICANN registrar
for any domain name purchased as a part of a package by you. Such domain registrations
may be configured as "Private Registrations" to protect your privacy
within the WHOIS listing system and may be subject to legal restrictions and
the terms of our designated third-party ICANN registrar. Alternatively, S. H. Pierce & Co. may register itself as the Administrative, Technical and/or
Registration contact (e.g. registrant) and WHOIS listed contact with an ICANN
registrar for any domain name purchased as a part of a package by our customers.
Such domain registrations may be configured as "Private Registrations"
to protect our privacy within the WHOIS listing system and may be subject to
legal restrictions and the terms of our designated third-party ICANN registrar.
S. H. Pierce & Co. may use third-party website hosting services to provide an array of services and resources for the creation of websites
(e.g. hosting the "Stakeholder" package) and the hosting of our copyright
content. Your acceptance of the terms of this agreement upon purchase of any
package that requires website hosting authorizes S. H. Pierce & Co. to create
an account with third-party website hosting services. S. H. Pierce & Co.
may at our discretion register you, according to information you provide, as the Administrative,
Technical and/or Registration contact (e.g. account owner) with a website hosting
service for any domain name purchased as a part of a website publishing package.
S. H. Pierce & Co. may register itself as the Administrative, Technical
and/or Registration contact (e.g. account owner) and sole contact with the website
hosting service for any website purchased as a part of a package by our customers.
Such registrations may be subject to legal restrictions and the terms of the
third-party registrar. S. H. Pierce & Co. is under no obligation to transfer
access, content or use related to the customer´s website hosting account.
For information regarding termination of license to use copyrighted website
templates refer to provisions of termination of service.
1. Security. S. H. Pierce & Co. does not guarantee the security of your
records, and you assume all risks that the password and/or passphrase you select
may be compromised as a result of fraudulent, unauthorized or illegal activity.
2. Fees and Payment. Initial domain name registrations, and domain name registrations
that have passed the registration agreement´s anniversary date, must be
in a paid status to transfer, delete, modify, or otherwise to request S. H. Pierce & Co. to affect the domain name record or to provide domain name
services. Domain name registrations in an unpaid status are routinely deleted
by our third-party registrars on a regular basis.
3. Transfers. You agree that you may not initiate a transfer of a domain name registration
associated with a package that you have purchased from us to a domain name registrar
designated by you during the first sixty (60) days from the effective date of
your initial order with us. In addition, you agree that you may not transfer
a domain registration associated with a package that you have purchased from
us to a domain name registrar designated by you for sixty (60) days after there
has been a change in your account contact information.
4. S. H. Pierce & Co.´s Disclosure of Certain Information. Subject
to the requirements of our Privacy Policy, in order for us to comply the current
rules and policies for the domain name system, you hereby grant to S. H. Pierce & Co. the right to disclose to third parties through an interactive publicly
accessible registration database the following mandatory information that we
may be required to provide when registering or reserving a domain name through
our providers: (i) the domain name(s) requested by you; (ii) your name and postal
address; (iii) the name(s), postal address(es), e-mail address(es), voice telephone
number. You consent to allow us to transmit this registration data, at our discretion,
to a third-party registrar or ICANN approved or designated escrow agent who
stores this information pursuant to ICANN requirements. You also grant to S. H. Pierce & Co. the right to make this information available in bulk form
to third parties who agree not to use it to (a) allow, enable or otherwise support
the transmission of mass unsolicited, commercial advertising or solicitations
via telephone, facsimile, or e-mail (spam) or (b) enable high volume, automated,
electronic processes that apply to our systems to facilitate the registration
of domain names through third-party registrars.
5. Domain Name Dispute Policy. If you purchased a package that requires registration
of a domain name, and that domain is subject to a dispute, you agree to be bound
by an existing ICANN dispute policy at http://www.icann.org/dndr/udrp/policy.htm.
In the event of any inconsistency between the provisions in this Agreement and
those in the domain name dispute policy, the provisions of this Agreement shall
prevail.
6. Domain Name Dispute Policy Modifications. You agree that we, in our sole
discretion, may modify our dispute policy. We will post any such revised policy
on our Website at least thirty (30) calendar days before it becomes effective.
You agree that, by maintaining the reservation or registration of a domain name
after modifications to the dispute policy become effective, you have agreed
to these modifications. You acknowledge that if you do not agree to any such
modification, you may terminate this Agreement. We will not refund any fees
paid by you if you terminate your Agreement with us.
7. Domain Name Disputes Brought by Third Parties. You agree that, if a domain
name that we have registered as part of a package that you purchased from us
is challenged by a third party, you will be subject to the provisions specified
in our dispute policy in effect at the time of the dispute. For the adjudication
of any disputes brought by a third party against you concerning or arising from
your use of a domain name registered by us, you (but not S. H. Pierce & Co.) agree to submit to subject matter jurisdiction, personal jurisdiction and
venue of the Commonwealth of Massachusetts and the courts of your domicile.
You agree that in the event a domain name dispute arises with any third party,
you will indemnify and hold us harmless pursuant to the terms and conditions
set forth below in this Agreement. If we are notified that a complaint has been
filed with a judicial or administrative body regarding a domain name associated
with your account, you agree not to make any changes to your account record
without our prior approval. We may not allow you to make changes to such account
record until (i) we are directed to do so by the judicial or administrative
body, or (ii) we receive notification by you and the other party contesting
your registration and use of our domain name registration services that the
dispute has been settled. Furthermore, you agree that if you are subject to
litigation regarding your use of our services, we may deposit control of the
disputed domain name record into the registry of the judicial body by supplying
a party with a registrar certificate from us. You agree that we will comply
with all court orders, domestic or international, directed against you and/or
the domain name registration.
8. No Guarantee. You agree that, by registration of your chosen domain name,
such registration does not confer immunity from objection to either the registration
or use of the domain name.
9. Revocation. You agree that we may suspend, cancel or transfer your services
in order to: (i) correct mistakes made by us, a third-party registrar or the
registry in registering your chosen domain name: (ii) to resolve a dispute under
our domain name dispute policy: or (iii) to remedy an unauthorized change in
the domain name account.
10. Survival. In the event the Agreement or this Schedule terminates, Sections
3, 4, 5, 6, 7, 9, 10, 12, 13, and 14 of this Schedule shall survive such expiration
or termination.
11. Under Construction Page. You acknowledge and agree that any or all domain
names that are (i) registered by S. H. Pierce & Co. as part of a package
that you purchase, (ii) hosted on a third-party domain name server, and (iii)
do not otherwise resolve to an active Website, may resolve to an Under Construction
Page, or promotions and advertisements for, and links to, S. H. Pierce & Co.´s Website, S. H. Pierce & Co. product and service offerings, third-party
Websites, third-party product and service offerings, and/or Internet search
engines. You agree that S. H. Pierce & Co. may change the content and/or
appearance of, or disable, any Under Construction Page at any time, in its sole
discretion, and without prior notice. You also agree that any domain name directory,
sub-directory, file name or path (e.g. ) that does not resolve to an active
web page on your Website being hosted by S. H. Pierce & Co., may be used
by S. H. Pierce & Co. to place a "parking" page, "under construction"
page, or other temporary page that may include promotions and advertisements
for, and links to, S. H. Pierce & Co.´s Website, S. H. Pierce & Co. product and service offerings, third-party Websites, third-party product
and service offerings, and/or Internet search engines. You agree that S. H. Pierce & Co. may change the content and/or appearance of, or disable any
of these temporary pages at any time, in its sole discretion, and without prior
notice.
12. Requests to Change Registrar; Transfers Generally. You agree that S. H. Pierce & Co. may deny any request to transfer a domain name registration
that is otherwise capable of transfer to a registrar of your choosing due to
a denial of transfer by a third-party registrar. You agree that S. H. Pierce & Co. may deny any request to transfer a domain name registration that is
otherwise capable of transfer to a registrar of your choosing where you fail
to respond appropriately to a transfer confirmation request from S. H. Pierce & Co. Furthermore, you acknowledge and agree that pursuant to applicable
policies adopted by the Internet Corporation for Assigned Names and Numbers
("ICANN") related to the transfer of domain names it is possible for
a domain name to be transferred to an ICANN approved registrar even though the
transfer has not actually been approved by you, and you agree that we shall
not be liable to you for any such unauthorized transfers. You also acknowledge
and agree that we cannot control and shall not be liable to you for the actions
of third parties, including but not limited to registry operators, in connection
with a domain name transfer, or a reversal of or refusal to reverse a domain
name transfer, whether or not the transfer was approved by you.
13. Domain Protect. You agree that we may, but are not obligated to, place domain
name registrations in a Domain Protect status to prevent unauthorized transfers
of a domain name registration associated with a package that you purchased from
us, as described on our Website. You acknowledge and agree that in order to
transfer a domain name registration that is in a Domain Protect status, we may
remove the domain name registration from Domain Protect status.
14. Expedited Domain Registration. S. H. Pierce & Co. is under no obligation to effect an immediate, emergency or expedited domain name registration on your behalf. If you require immediate registration of a domain name, it would be advisable for you to contact an ICANN approved registrar such as Network Solutions or GoDaddy Inc. directly. If you need immediate assurance of a domain registration, before or after you have placed an order with us, you may choose to register the domain yourself with an ICANN approved registrar. If you place an order with us after you have already purchased a domain name independent of our services, we can assist you in having the domain name that you registered with a third party changed so the domain's "nameservers" point to your website on our servers. Any domain name that you have registered independent of our services must be registered for a term greater than one year, to ensure that the domain name registration does not expire before the expiration date of your website package.
15. Domain Transfer Request conflicts with Domain Lock Status. In rare circumstances, S. H. Pierce & Co. may be temporarily unable to effect the transfer of a domain name. For example, our ICANN approved domain name registrar may place all domains in a 60-day locked status pending approval of an address change or account change facilitated by us. S. H. Pierce & Co. may be able to inform you prior to your own initiation of a domain transfer request to prevent loss of domain transfer fees assessed by your registrar despite a failed transfer. In no event is S. H. Pierce & Co. liable for costs associated with a failed domain transfer, however, in such rare circumstances where we failed to inform you of Domain Lock Status during the course of an approved transfer, we will, upon your request and at our expense: a) set the nameservers on the domain to point to a server of your choosing during the 60-day delay period so as to activate your website with your new website host, and b) add a one-year extension on to the domain registration and Moxie website package (if any) to ensure that the domain remain available for transfer to you for 10 additional months following the domain lock period. Months added on to the domain registration are transferrable and will be applicable to your subsequent registration of the domain name should you re-attempt a transfer after the domain lock period has expired.
16. Blank.
SCHEDULE L TO S. H. PIERCE & CO. SERVICE AGREEMENT
E- MAIL SERVICES
1 Description of Service. S. H. Pierce & Co. and/or its third-party providers
may provide you with the capability of sending and receiving electronic mail
via the Internet. You must: (a) provide all equipment, including a computer
and modem, necessary to establish a connection to the Internet; and (b) provide
for your own connection to the Internet and pay any telephone service fees associated
with such connection. In order to maintain the quality of our services to other
customers and to protect our computer systems S. H. Pierce & Co. and/or
its third-party providers may limit the number of recipients of any e-mail message
transmitted or received by you per any 24 hour period. S. H. Pierce & Co.
may also restrict the number of recipients receiving an individual message.
We, in our sole discretion, will determine whether or not your conduct is consistent
with this Agreement and any S. H. Pierce & Co. operating rules or policies
and may suspend or terminate your e-mail service if your conduct is found to
be inconsistent with this Agreement or such rules or policies. The e-mail service
of S. H. Pierce & Co. and our third-party providers is subject to scheduled
and unscheduled outages that will impact your ability to use the service. We
will ensure that commercially reasonable efforts are made to restore the service
after any unscheduled outages. Moreover, in order to receive the e-mail service
our third party provider must host the associated domain name record. If you
transfer a domain name associated with a package that you purchased from us
to a third party in conjunction with a live website, or for any other reason,
or allow your service to expire, you will no longer be able to use the e-mail
service. We will not refund the fees you paid for our e-mail service if you
elect to initiate the transfer of a domain name to a third party. You may not
exceed the storage [megabytes] applicable to the particular e-mail services
purchased by you as specified on our Website or its provider at the time of
your purchase (or as subsequently modified by us pursuant to this Agreement).
If you exceed the applicable storage limitations, S. H. Pierce & Co. reserves
the right, in its sole discretion, to either (A) charge, and you agree to pay,
an additional fee as described on our Website for each Megabyte of usage that
exceeds the bandwidth limitations set forth above, or (B) terminate or suspend
your email services and this Agreement. Additionally, you acknowledge and agree
that we may delete any or all messages in your "trash" folder at any
time in our sole discretion.
2 Your acceptance of the terms of this agreement constitutes acceptance of any
policy of our third party e-mail providers.
3 You acknowledge and agree that S. H. Pierce & Co. shall have no liability
to you or any third party with respect to SPAM protection, your failure to receive
any e-mail as a result thereof, or your receipt of SPAM.
4 Virus Protection. S. H. Pierce & Co.´s e-mail service or the service
provided to you by our third-party providers may include virus protection that
scans your email, and attachments thereto, to assist in the prevention of the
transmission of viruses to your computer system and/or e-mail program. E-mail
sent to your e-mail address(es) may be scanned for viruses. If a virus is detected,
the e-mail message and/or attachment, as applicable, may be cleaned if possible
and the header of the e-mail will be tagged to inform you that a virus was detected
and that the e-mail message and/or attachment has been cleaned and the virus
removed. If a virus is detected, and the virus cannot be removed from the e-mail
message and/or attachment, the e-mail message and/or attachment may be deleted
and the e-mail may be tagged to inform you that portions of the e-mail have
been deleted because a virus was detected. All e-mail box(es) automatically
may include virus protection and this feature cannot be disabled or configured
by you. You acknowledge and agree that any virus protection feature is not guaranteed
to be one hundred percent (100%) effective or error free and may delete e-mail
messages and/or attachments that you may desire to view, or allow the transmission
of viruses to your computer system and/or e-mail program. You acknowledge and
agree that S. H. Pierce & Co. shall have no liability to you or any third
party with respect to a virus protection feature, your failure to receive any
e-mail and/or e-mail attachments as a result thereof, or the transmission of
viruses to your computer system and/or e-mail program.
5 Safeguarding Passwords. You are responsible for maintaining the confidentiality
of your password and e-mail account and are fully responsible for all activities
that occur using your password. Please notify us immediately of any unauthorized
use of your password or e-mail account or any other breach of security. S. H. Pierce & Co. is not liable for any losses that you may incur as a result
of any third-party´s use of your password.
6 Billing for E-mail Service. Billing for annual e-mail services shall be by
valid credit card (acceptable to S. H. Pierce & Co.) at the time of purchase.
If you elect to subscribe to e-mail services or they are included with your
purchased package, your payments for the same will be automatically charged
to the credit card provided by you (and acceptable to S. H. Pierce & Co.)
at the time of your purchase and you hereby agree that S. H. Pierce & Co.
is authorized to so charge your credit card. S. H. Pierce & Co., in its
sole discretion, shall determine the prices it will charge for the e-mail services,
and the terms and conditions applicable to the same, and S. H. Pierce & Co. may, upon providing thirty (30) days´ notice to you, amend such pricing
and/or terms and conditions. If you do not agree with any such change(s), you
may terminate this Agreement or cancel your e-mail service subscription, as
applicable, as provided herein, within such thirty (30) day period; otherwise
all such changes shall thereafter be effective with respect to your account,
and you agree that we are authorized to charge your credit card for any new
e-mail service fee.
7 Privacy. S. H. Pierce & Co. will not monitor, edit or disclose the contents
of your private communications with third parties unless required to do so by
law or in the good faith belief that such action is necessary to: (a) conform
to the law or comply with legal process served on S. H. Pierce & Co.; (b)
protect and defend the rights or property of S. H. Pierce & Co.; or (c)
act under exigent circumstances to protect the personal safety of our customers
or the public. S. H. Pierce & Co. will endeavor to use third-party vendors
with a similar privacy policy, and you acknowledge the policies may differ.
You acknowledge and agree that S. H. Pierce & Co. neither endorses the contents
of any of your communications nor assumes responsibility for such content, including
but not limited to any threatening, libelous, obscene, harassing or offensive
material contained therein, or any infringement of third party intellectual
property rights arising therefrom or any crime facilitated thereby. You acknowledge
and agree that certain technical processing of e-mail messages and their content
may be required to: (a) send and receive messages; (b) conform to connecting
networks´ technical requirements; (c) conform to the limitations of the
e-mail service; or (d) conform to other similar requirements.
8 Customer Conduct. You agree to be bound by the applicable provisions of the
S. H. Pierce & Co. Acceptable Use Policy, incorporated herein and made part
of this Agreement by reference, in connection with your use of the services
described in this Schedule. S. H. Pierce & Co.´s outsourcing contractors
for the e-mail services shall be intended third party beneficiaries of the e-mail
service customer´s obligations under this Agreement and thus shall be
entitled to enforce those obligations against you as if a party to this Agreement.
SCHEDULE M TO SERVICE AGREEMENT
WEB FORWARDING SERVICE (NAMELINKER)
1. S. H. Pierce & Co. is providing you with the capability to forward users
or visitors who type in a specific domain name to another domain name designated
by you through the Web Forwarding service. You represent and warrant that you
have the necessary rights to forward, point, alias or resolve the domain name
registration(s) associated with your purchased package to the other domain name
designated by you in ordering such services. You agree that we, in responding
to a third party complaint or for any other reason, have the right, in our sole
discretion, to suspend or terminate your Web Forwarding service without notice
and with no obligation to refund fees paid if we determine the Web Forwarding
service is forwarding users to a Website or URL that is unsuitable or being
used for any unlawful or harmful purpose, as determined in our sole discretion.
2. You acknowledge and understand that the Web Forwarding service may, at our
discretion, include a Domain Masking feature that will make your site visitors
see the domain name associated with the Web Forwarding service in the window
of their browser throughout your entire Website and on all Websites linked to
from your Website while the window session remains open. The Domain Masking
feature may not work will all Websites depending on how they are configured
and their ability to be viewed within a browser frame.
3. You agree to be bound by the applicable provisions of the S. H. Pierce & Co. Acceptable Use Policy, incorporated herein and made part of this Agreement
by reference, in connection with your use of the services described in this
Schedule.
SCHEDULE O TO SERVICE AGREEMENT
STAKEHOLDER WEBSITE
1. Definitions. For purposes of this Schedule, the following capitalized terms
shall have the meanings ascribed to them below:
(a) "Web Site Template" means any pre-designed, customizable S. H. Pierce & Co. Website template licensed by S. H. Pierce & Co. to end
users.
(b) "Homepage" means a one-page Website and, if provided, one e-mail
box.
(c) "Website Publishing Service" means any of the S. H. Pierce & Co. Website publishing packages including the "Stakeholder" package
that are available for purchase by end users on a monthly or annual basis, for
a monthly or annual fee (respectively), that combine a Domain Name, a Website
Template, access to a Website Editing Tool, the Web Hosting Service provided
by S.H. Pierce & Co. or a third-party provider, and/or such other services
as may, from time to time, be included in the package by S. H. Pierce & Co. as of the time of your purchase.
(d) "Web Site Editing Tool" means the S. H. Pierce & Co. on-line
design and editing tool that allows customers to access their Website Templates,
change the selection of Template, add/modify content, upload images and make
generic changes to their Website Templates for any type of websites including
mobile websites.
(e) "Web Hosting Service" means the Web hosting services provided
by S. H. Pierce & Co. or a third party through S. H. Pierce & Co. as
part of a monthly or annual Website Template Website Publishing Service or Hosting
Services as defined in Schedule T of this Agreement.
2. Payment. In addition to the payment terms in Section 3 of the Agreement,
the following provisions shall also apply solely with respect to the Website
Publishing Service:
(a) Billing for the Website Publishing Service shall be by valid credit card
(acceptable to S. H. Pierce & Co.) or PayPal at the time of purchase at
the fee set forth on our website. Your payment(s) for a Website Publishing Service
shall be automatically charged to the credit card provided by you (and acceptable
to S. H. Pierce & Co.) at the time of your purchase (with such payments
being charged in advance on a monthly or annual basis, as applicable) each month
or annually, as applicable ("Website Publishing Service Fee"), and
you hereby agree that S. H. Pierce & Co. is authorized to so charge your
credit card. S. H. Pierce & Co., in its sole discretion, shall determine
the prices it will charge for the Website Publishing Service, and the terms
and conditions applicable to the same, and S. H. Pierce & Co. may, upon
providing thirty (30) days notice to you by email, amend such pricing and/or
terms and conditions. If you do not agree to the change(s), you may terminate
this Agreement (by terminating your Website Publishing Service, as applicable)
as provided herein within such thirty (30) day period; otherwise all such changes
shall thereafter be effective with respect to your account, and you agree that
we are authorized to charge your credit card for any new Website Publishing
Service or renewal ordered.
3. File Size, Storage, Bandwidth and Design-matching Limitations. The following
file size and bandwidth limitations apply to the Stakeholder package offered
by S. H. Pierce & Co.:
(a) File Size and Storage. If upload services are provided, you may be subject
to file size and storage limitations. You may not publish content that exceeds
the Published Storage Limit for the Website you have selected.
(b) Text Fields. Each template may presents a size and bandwidth limitation
on text fields, including but not limited to the number of fields available
for display, the number of characters available per field, the set of available
characters, the typeface available for display, and the position of text within
the template. Any URL´s, forwarding addresses, e-mail addresses or any
other text field may be automatically parsed, error-checked or re-formatted
by S. H. Pierce & Co. for suitability with a template prior to publication.
Links and e-mail addresses included within templates that direct visitors to
external locations or applications may, upon parsing by S. H. Pierce & Co.,
be made active or passive (read-only) as determined by our format parsing system.
(c) Template Design Matching. S. H. Pierce & Co. will endeavor to match
the design of a your published website to the template that you selected during
the order process. You acknowledge that minor inconsistencies may exist between
your published website and the original template or examples shown during the
order process. These minor inconsistencies include but are not limited to kerning
differences between characters, minor distinctions between displayed typefaces,
minor color variations, extra line-breaks, word-wrapping differences, display
differences between Internet browsers and operating systems, size differences
due to varying screen resolutions, limitations on the use of certain text characters,
and loading time differences. The remedy for any disatisfaction due to an inconsistency
between a selected template as displayed during the order process and the final
published template display is, upon our confirmation of the discrepancy, our
provision to you of a free "Stakeholder Design Update" by which you
can select an alternate template and/or change the content of your current web
page.
4. Conduct. You agree to be bound by the applicable provisions of the S. H. Pierce & Co. Acceptable Use Policy, incorporated
herein and made part of this Agreement by reference, in connection with your
use of the services described in this Schedule. S. H. Pierce & Co. neither
sanctions nor permits any website content or the transmission of data that contains
illegal or obscene material or fosters or promotes illegal activity. S. H. Pierce & Co. reserves the right to immediately suspend or terminate any site or
transmission that violates this policy, without prior notice. In the event of
such termination, Customer agrees that the unused portion of any fees Customer
may have paid for any services rendered to Customer by S. H. Pierce & Co.
are an appropriate recompense to S. H. Pierce & Co. for the time required
to respond to and address issues created by Customer´s illegal or obscene
site/content, and Customer agrees not to seek recovery of those fees. Further,
should Customer violate this Agreement or the Acceptable Use Policy, S. H. Pierce & Co. will actively assist and cooperate with law enforcement agencies and
government authorities in collecting and tendering information about Customer,
Customer´s website, the illegal or obscene content, and those persons
that may have inappropriately accessed, acquired, or used the illegal or obscene
content.
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6. Use of Images. Your use of any content, images or pictures that are made
available by S. H. Pierce & Co. as a part of a website hosting package or
any other S. H. Pierce & Co. service is governed by the terms of this agreement.
You agree that you will not modify, alter, change, reproduce, reengineer, recreate,
deface, sell, distribute, lease, license, sublicense or rent any content, image
or picture that is made available to you by S. H. Pierce & Co. or that is
part of a website hosting service or associated website template. You expressly
agree that you will not use any content, images or pictures in any way that
may infringe the rights of S. H. Pierce & Co. or any third parties. S. H. Pierce & Co. and its partners retain all rights, title and ownership to
the intellectual property, software, tools, content, images and pictures that
are made available to you. Your agree that your use of the content, images or
pictures made available by S. H. Pierce & Co. do not give you any rights
in such content, images or pictures.
7. Limitation of Liability/Disclaimer of Warranty for Password Protection Feature.
In addition to your acknowledgement and agreement to the limitation of liabilities
and disclaimer of warranties contained in the agreement, you acknowledge and
agree that S. H. Pierce & Co. shall have no liability to you or any third
party with respect to your use of the password protection feature or the unauthorized
access to your website. You agree that your use of S. H. Pierce & Co.´s
password protection feature is solely at your own risk. You agree that all of
such services are provided on an "as is," and "as available"
basis. S. H. Pierce & Co. and its licensors expressly disclaim all warranties
of any kind, whether express or implied, including but not limited to the implied
warranties of merchantability, fitness for a particular purpose and non-infringement.
Neither S. H. Pierce & Co. nor its licensors make any warranty that the
password protection feature will meet your requirements, or that the password
protection feature will be uninterrupted, timely, secure, or error free. You
acknowledge and agree that S. H. Pierce & Co.´s entire liability,
and your exclusive remedy, in law, in equity, or otherwise, with respect to
the password protection feature provided under this agreement and/or for any
breach of this agreement is solely limited to the amount you paid for the service
during the term of this agreement.
8. Cancellation. You may cancel your service at any time, either online or in
writing. To cancel your service online, you must log in, select 'my account',
select 'View my active websites...' and select 'Termination'. To submit your written
notice of cancellation to S. H. Pierce & Co., include the following information:
(i) Your S. H. Pierce & Co. username and password; (ii) the registered Domain
Name associated with your Stakeholder package; and (iii) your reason for requesting
cancellation.
9. Term and Termination.
(a) Term. Your Subscription Service shall be annual, on a year-to-year basis
for successive yearly periods, or (iii) if you have not selected our auto-renew
feature, for a one-time annual period, all unless either party notifies the
other of termination or cancellation in accordance with this Agreement, and
subject to the then-current terms and conditions of this Agreement at the time
of any renewal of your package.
(b) Notice of Service Cancellation by You. Unless terminated earlier as provided
herein, this Schedule, and the Agreement if you have no other services with
S. H. Pierce & Co., will be terminated as of the automatic cancellation
of your package.
(c) Survival. In the event of expiration or termination of this Schedule or
the Agreement for any reason, Sections 1 and 10 of this Schedule shall survive.
10. Guarantee. S. H. Pierce & Co. may offer a satisfaction guarantee for
your purchase of a Stakeholder website publishing package. Our guarantee, if
offered to you, provides for an approval period of no more than 30 days after
activation of a new website, during which you may terminate service to receive
a full refund of your purchase price excluding a Service Fee to cover our unrecoverable
expenses. The terms of the guarantee and the amount of non-refundable Service
Fee is specified in a Stakeholder Satisfaction Guarantee, published on our website
and incorporated herein by reference, and expressly approved by you with your
Stakeholder order. The Stakeholder Satisfaction Guarantee is applicable only
to new Stakeholder purchases, not renewals, updates or other packages. Under
no conditions do the terms of the Stakeholder Satisfaction Guarantee survive
beyond the approval period, or provide for a refund greater than your original
purchase price less the non-refundable Service Fee, or supercede any other terms
of this Agreement.
11. Third Party Licenses and Offerings. You expressly agree that any third party
products, services or offerings that are available to you as a part of any of
the S. H. Pierce & Co. product or services under this Schedule O shall be
used by you in accordance with the terms of any relevant third party licenses.
Your failure to abide by any third party license may result in the immediate
termination of your services by S. H. Pierce & Co.
12. Blank
13. Blank
SCHEDULE R TO S. H. PIERCE & CO. SERVICE AGREEMENT
EXTENDED YEARS (ADVANCE RENEWALS)
1. Extended Years Domain Service. When you purchase an extension of service
to one of our packages (for example, for 5 years, 100 years or another year
period), and upon our acceptance of the renewal order, we will renew the registration
of the relevant domain name and hosting service, if any, for no less than one
annual term with our third-party providers. We will then automatically renew
these associated services with our third-party providers on an annual basis
until you have received the number of years of services offered from us from
the date of your purchase of the extension.
2. Non-Transferable; Non-Refundable. You acknowledge and agree that the an extension
of service will terminate if you initiate a transfer of the domain name for
which you purchased the service. You acknowledge and agree that extensions and
renewals, like all other services we provide, is non-refundable upon termination.
3. Other Services Affecting this Service. You acknowledge and agree that our
ability to provide extentions of service is dependent upon, among other things,
our ability to facilitate the continued registration of the relevant domain
name, and that any termination of that registration (for whatever reason) will
result in the termination of the extension.
4. Renewal Schedule. To provide satisfactory service to you, we use third-party
service providers including ICANN-approved domain name registrars and website
hosting services. If you do not opt-in for an automatic renewal service, your
renewal of service for any package must occur no fewer than (30) days prior
to the expiration date of the relevant package in order for us to complete our
own internal approvals, third-party authorizations with these service providers,
and effective notice to you. You acknowledge and agree that our ability to provide
effective renewal service requires your purchase of a renewal no fewer than
(30) days prior to the expiration date of the relevant package, and that S. H. Pierce & Co. may or may not fulfill a renewal purchase made within (30)
days or after the expiration date of the relevant package.
5. Late renewals. Renewals offered by S. H. Pierce & Co. subsequent to the
renewal deadline for a particular package under Section 4 of this Schedule,
and the services with such offers, are provided as a courtesy and are not required
for fulfillment of our obligations under this agreement the original package.
Payment of a late renewal fee may be required by you in order to fulfill late
requests for renewals. S. H. Pierce & Co. will refund late fees, if any,
if we or our third-party providers are unsuccessful in fulfilling a late renewal
request.
6. Conditions of operation of Internet services are subject to pricing and regulatory
factors outside of our control. You acknowledge and agree that we are under
no obligation to offer or provide services to you beyond the current year purchased
as part of a multi-year renewal package. We may change or withdraw renewal offerings
and services for any of our packages as they pertain to years following the
current year without notice. Any advance payments made by you toward fulfillment
of a multi-year renewal package that is longer offered will at our discretion,
be A) fulfilled according to the terms of your original multi-year renewal purchase
and terminated thereafter or B) either fulfilled according to revised terms
provided to you and requesting your acceptance within thirty (30) days, if you
do not approve of such revised terms, terminated at the end of the current year
of the multi-year package with payment refunded by us to you on a pro-rated
basis according to each unfulfilled full year of the multi-year renewal that
you originally purchased, plus one additional year if the remaining unfulfilled
months includes six or more months, divided by the number of years of the multi-year
renewal that you originally purchased.
SCHEDULE T TO SERVICE AGREEMENT
HOSTING SERVICES
In addition to the terms and conditions in the General Provisions and other
applicable Schedules in the Agreement, the following additional terms and conditions
shall apply to any and all purchases of Hosting Services (as defined below).
1. Description of Service
S. H. Pierce & Co. may make available for purchase, from time to time, a
variety of hosting packages, stand-alone hosting services and optional add-on
services, as published on the S. H. Pierce & Co. website (collectively,
"Hosting Services"). Subject to the terms and conditions of this Agreement
(which includes this and all other applicable Schedules) and during the term
of this Agreement, S. H. Pierce & Co. agrees to provide to you the Hosting
Services you purchase during the sign-up process. S. H. Pierce & Co. reserves
the right to amend its Hosting Services offerings and to add, delete, suspend
or modify the terms and conditions of the Hosting Services, at any time and
from time to time, and to determine whether and when any such changes apply
to both existing and future customers.
2. Fees and Payment Terms
2.1 Billing for Hosting Services shall be by valid credit card (acceptable to
S. H. Pierce & Co.) at the time of purchase at the fee set forth on our
website. Your monthly and, if you´ve selected our "auto-renew"
feature, annual payments for Hosting Services shall be automatically charged
to the credit card provided by you (and acceptable to S. H. Pierce & Co.)
at the time of your purchase (with such payments being charged in advance on
a monthly or annual basis, as applicable) each month or annually, as applicable
("Hosting Services Fee"), and you hereby agree that S. H. Pierce & Co. is authorized to so charge your credit card. S. H. Pierce & Co., in
its sole discretion, shall determine the prices it will charge for the Hosting
Services, and the terms and conditions applicable to the same, and S. H. Pierce & Co. may, upon providing thirty (30) days´ prior written notice to
you by email, amend such pricing and/or terms and conditions. If you do not
agree to any such pricing and/or terms and conditions change(s), you may terminate
this Agreement (or cancel your Hosting Services, as applicable) as provided
herein within such thirty (30) day period; otherwise all such changes shall
thereafter be effective with respect to your account, and you agree that we
are authorized to charge your credit card for any new Hosting Services Fee,
on the next monthly or annual (as applicable) payment cycle.
2.2 In addition to recurring service fees, S. H. Pierce & Co. may charge
set up fees and other one-time fees for any optional services as set forth on
our Website and/or described in this Schedule (collectively "One-time Fees").
Billing for One-time Fees shall be by valid credit card (acceptable to S. H. Pierce & Co.) at the time of purchase at the price set forth on our website.
Your One-time Fees shall be automatically charged to the credit card provided
by you (and acceptable to S. H. Pierce & Co.) at the time of your purchase,
and you hereby agree that S. H. Pierce & Co. is authorized to so charge
your credit card. S. H. Pierce & Co., in its sole discretion, shall determine
the prices it will charge for all One-time Fees.
2.3 S. H. Pierce & Co. will charge you a Processing Fee if you terminate
or cancel any package prior to the completion of any limited money-back guarantee
time period for that package. You authorize S. H. Pierce & Co., in its sole
discretion, to charge the credit card provided by you at the time of your purchase
or forward an invoice to you immediately upon any such termination or cancellation
of an annual Hosting Services package for the amount of the Processing Fee.
2.4. S. H. Pierce & Co. will suspend your account if you request a chargeback
on your credit card for automatic charges to your credit card for excess data
transfer usage (see Section 6 below).
3. Term and Termination
3.1 Term. Your Hosting Services shall be either (i) annual, (ii) on a month-to-month
basis for successive monthly periods, (iii) if you have selected our auto-renew
feature, on a year-to-year basis for successive yearly periods, or (iv) if you
have not selected our auto-renew feature, for a one-time annual period, all
unless either party notifies the other of termination or cancellation in accordance
with this Agreement, and subject to the then-current terms and conditions of
this Agreement at the time of any renewal of your Hosting Services.
3.2 Cancellation. Subject to your obligation to pay any applicable Processing
Fees, you may cancel your Hosting Services at any time. To cancel your Hosting
Services you must submit your written notice of cancellation to S. H. Pierce & Co. (as provided herein) and include the following information: (i) Your
S. H. Pierce & Co. customer username and password; (ii) the registered domain
name, if any, associated with your Hosting Services; and (iii) your reason for
requesting cancellation. Unless otherwise agreed to in writing (in either paper
or electronic form), your Hosting Services will be canceled as of the expiration
of the monthly billing cycle in which your notice was received. Unless terminated
earlier as provided herein, this Schedule, and the Agreement if you have no
other services with S. H. Pierce & Co., will be terminated as of the cancellation
of your Hosting Services.
3.3 If you breach any term of this Agreement including, but not limited to,
this terms of this Schedule or the Acceptable Use Policy, S. H. Pierce & Co. may, in its sole and exclusive discretion, suspend or terminate your
Hosting Services immediately and without notice to you. Hosting Service Fees
may continue to accrue on suspended accounts and you will continue to remain
responsible for the payment of any Service Fees that accrue during the period
of suspension.
3.4 Upon any termination of this Schedule or the Agreement for any reason, Sections
2, 3.4, 4, 5 and 6 shall survive termination.
4. Additional Warranty Disclaimers and Limitations of Liability
4.1 ADDITIONAL DISCLAIMER. S. H. PIERCE & CO. IS NOT LIABLE, AND EXPRESSLY
DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR
FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED
BY S. H. PIERCE & Co.
4.2 Information obtained by you from the Internet may be inaccurate, offensive
or in some cases illegal. S. H. Pierce & Co. has no control over information
contained on the Internet and accepts no responsibility for any information
that you may receive or transmit via the Internet.
4.3 You accept full responsibility to verify the truth and accuracy, legality
and ownership of the information that you disseminate or display in connection
with your use of the Hosting Services or obtain from the Internet.
4.4 You agree that if S. H. Pierce & Co. takes any corrective action under
this Agreement in response to your or your end users´ actions or failures
to act, that corrective action may adversely affect you or your end users and
you agree that S. H. Pierce & Co. shall have no liability to you or your
end users due to any corrective action taken by S. H. Pierce & Co.
4.5 You agree that S. H. Pierce & Co. and its third party providers have
no obligation to back-up any data related to your website unless S. H. Pierce & Co. expressly agrees otherwise in writing (or has expressly stated so
on our Website). You agree that you will regularly back-up your data whether
or not S. H. Pierce & Co. agrees to or actually does back-up any data.
5. Restrictions on Use
5.1 S. H. Pierce & Co. does not intend to and shall have no obligation to
systematically monitor the content that is submitted, stored, distributed or
disseminated by you via the Hosting Services (the "Content"). Your
Content includes content of your end users and/or users of your website. Accordingly,
you are responsible for your end users´ content and all activities on
your website. S. H. Pierce & Co., in its sole and exclusive discretion,
may immediately take corrective action, including, but not limited to, removal
of all or a portion of your Content and suspension and/or termination of your
Hosting Services, in the event of notice of any possible violation of this Agreement
or the Acceptable Use Policy by you or your end users. You agree that S. H. Pierce & Co. will
have no liability to you or any of your end users due to any corrective action
that S. H. Pierce & Co. may take and that you will not be entitled to a
refund of any fees paid in advance prior to the corrective action. You agree
to the additional restrictions of use for the ancillary services provided by
S. H. Pierce & Co. in conjunction with the Hosting Services that are found
in other schedules to this Agreement.
5.2 You warrant that your Content does not violate or infringe any copyright,
trademark, patent or intellectual or other proprietary property right of any
third party or contain any obscene or libelous material or otherwise violate
any law or regulation.
5.3 Your use of networks or computing resources provided to S. H. Pierce & Co. by third party providers and made available to you as part of the Hosting
Services is subject to the respective permission and usage policies of such
third parties. If you purchase a package that uses a third-party server, you
agree to be bound by the terms of the End User License Agreement of the server´s
provider. S. H. Pierce & Co. will endeavor to provide information to you
with your account that directs you to any third-party providers associated with
your package.
5.4 You expressly (i) grant to S. H. Pierce & Co. a license to cache the
entirety of your Content and your website, including content supplied by third
parties, hosted by S. H. Pierce & Co. under this Agreement, and (ii) agree
that such caching is not an infringement of any of your intellectual property
rights or any third party´s intellectual property rights.
5.5 You agree that you will not exceed the bandwidth or storage space limits
applicable to the Hosting Services purchased, as set forth on our Website. You
agree that if you do exceed either of such limits, S. H. Pierce & Co., in
its sole and exclusive discretion, may immediately take corrective action, including,
but not limited to, assessment of additional fees and/or suspension and/or termination
of your Hosting Services. You agree that S. H. Pierce & Co. will have no
liability to you or any of your end users due to any corrective action that
S. H. Pierce & Co. may take and that you will not be entitled to a refund
of any fees paid in advance prior to the corrective action.
6. Data Transfer Overage Charges
6.1 You agree that you will not exceed the reasonable data transfer (bandwidth)
or storage space limits applicable to the Hosting Services purchased. You agree
that if you do exceed either of such limits, S. H. Pierce & Co., in its
sole and exclusive discretion, may immediately take corrective action, including,
but not limited to, assessment of additional fees and/or suspension and/or termination
of your Hosting Services. You agree that S. H. Pierce & Co. will have no
liability to you or any of your end users due to any corrective action that
S. H. Pierce & Co. may take and that you will not be entitled to a refund
of any fees paid in advance prior to the corrective action.
6.2. Excess bandwidth usage cannot be purchased by you in advance.
7. Other Terms and Conditions
7.1 The Hosting Services we provide under this Agreement may incorporate other
products or services that we provide, or products or services provided by third
parties with whom we have a business relationship ("Additional Services").
Your use of these Additional Services may be subject to a separate application
and/or approval process and you reaching separate agreements with us or with
third parties. (For example, if you desire to accept credit card payments through
a website you establish via the Hosting Services, your relationship with the
third-party merchant account provider may be subject to an application and approval
process and you reaching a separate agreement with such provider.) Some of these
separate agreements may require you to pay fees in addition to the fees that
you pay us for the Hosting Services. We will strive to let you know when your
receipt of Additional Services will require you to enter into a separate agreement,
whether with us or with a third-party, and whether such separate agreement will
require you to pay additional fees. Additionally, depending on the services
you elect to receive, you may be responsible for establishing and maintaining
a commercial banking relationship with a financial institution. The terms of
any such relationship shall be between you and the financial institution and
will not necessarily reflect or incorporate terms of any agreements we may have
with the institution. Further, you agree that our third party vendors providing
any services as part of the Hosting Services, and their successors, are intended
third-party beneficiaries under this Agreement and will be entitled to enforce
your obligations under this Agreement. Finally, you acknowledge and agree that
other Schedules in this Agreement may apply to the various services included
in your Hosting Services package (for example, Schedules related to domain name
registration, email, Private Registration, etc.), and that you have read and
you agree to be bound by the additional terms and conditions in those Schedules.
7.2 You agree that any domain name directory, sub-directory, file name or path
that does not resolve to an active web page on your Website being hosted by S. H. Pierce & Co., may be used by S. H. Pierce & Co. to place a "parking"
page, "under construction" page, or other temporary page that may include
promotions and advertisements for, and links to, S. H. Pierce & Co.´s
Website, S. H. Pierce & Co. product and service offerings, third-party Websites,
third-party product and service offerings, and/or Internet search engines. You
agree that S. H. Pierce & Co. may change the content and/or appearance of,
or disable any of these temporary pages at any time, in its sole discretion, and
without prior notice.
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