Terms And Conditions Pertaining To
SiteSell's "SBI!" Web Services
These are the terms and conditions applicable to the purchase and/or use of SBI! and related products and services on a non-exclusive basis, including but not limited to web hosting, e-mail, domain registration and related support services, (collectively the "Service(s)") between you (the "Customer") and SiteSell Inc. ("SiteSell"). If you do not agree to be legally bound by these terms and conditions, you may notify SiteSell in writing within ten (10) days of your order and the Service will be cancelled with no further obligation by either party. Failure to notify SiteSell of cancellation within such period shall be deemed to indicate that you have read and understood these terms and conditions (the "Agreement") and agree to be bound by them.
Customer may elect to purchase additional products or services from SiteSell, SiteSell's partners and/or other third parties which may have their own terms and conditions and use agreements, aside from this Agreement. Those agreements will be presented to Customer at the time of purchase and/or account login and it is the Customer's obligation to review, accept and abide by those agreements as well as this Agreement. Terms and conditions for SiteSell's products and services can be found on http://www.sitesell.com/ (the specific agreement for the Service is at: http://www.sitesell.com/more-info/tos-sbi.html).
1. SiteSell will provide Customer with its proprietary web site building product, SBI!, which includes an integrated set of business research and building tools, the hosting of the Customer's web site on a network server accessible by the Internet via an assigned Universal Resource Locator ("URL") domain name and the registration of the Customer's web site URL with several World Wide Web Search Engines. A comprehensive list of the SBI! business building tools can be found at http://tools.sitesell.com/. The Service includes but is not limited to access to the SBI tools, the SBI! action guide, web hosting service and domain name registration for the Customer's SBI! site. Customer hereby grants to SiteSell and its subcontractors the necessary rights and licenses with respect to such web site to carry out its undertaking under this Agreement and to make archival or back-up copies as deemed necessary by SiteSell.
2. Web site hosting service commencement is initiated on the basis of a recorded order verification and begins on the date that the Customer's order is placed.
3. Customer shall solely be responsible for its web site, including without limitation:
- Creating and maintaining the web site, using the SBI! tools and methodology;
- Obtaining and maintaining internet connectivity to access the web site, to send and receive e-mail and access and utilize the Internet;
- Not to disseminate or otherwise misuse personal information about visitors to the web site, nor to share any personal information with any third party without first obtaining the visitor's consent;
- acquiring any authorization(s) necessary for hypertext links to third party web sites;
- The accuracy of materials used on the web site, including, without limitation, web site content, descriptive claims, warranties, guarantees, nature of business, and contact information for the Customer;
- Ensuring that the web site content does not infringe or violate the intellectual property rights or any other right of any third party. SiteSell shall have no liability and shall be held harmless for any content used by Customer that infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses, and
- Backing up the content of the web site and related matters.
- Ensuring compliance with the domain name registration agreement (http://www.opensrs.com/docs/contracts/exhibita.htm). Failure to abide by any provision, operating rule or policy of the agreement may be considered to be a material breach and Customer may receive a written notice, describing the breach. If within fifteen (15) calendar days of the date of such notice, Customer fails to provide evidence, which is reasonably satisfactory to SiteSell, that Customer has not breached its obligations under the agreement, then SiteSell may delete the registration or reservation of Customer's domain name. Any such breach by Customer shall not be deemed to be excused simply because SiteSell did not act earlier in response to that, or any other Customer breach.
- Ensuring compliance outlined in ICANN's Registrant's Benefits and Responsibilities and ICANN's Site For Registrant Education.
4. SiteSell reserves the right to monitor the web site and terminate or suspend Service without notice if, in SiteSell's sole discretion, the web site is intended to be used or is used by Customer in a manner that violates or may violate the following:
- Is an infringement of (or a mechanism designed to facilitate the infringement of) a proprietary interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right;
- Violates any federal, state, county, and municipal laws, regulations, governmental agency orders, and court orders;
- Is offensive, including without limitation, bigotry, racism, discrimination, hatred, or profanity; is disparaging, defamatory, libelous, or results in an invasion of privacy; promotes or provides instructional information about illegal activities or physical harm or injury to any group, individual, institution or property; or infringes on a proprietary interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret or patent right; or may violate any federal, state, county, and municipal laws, regulations, governmental agency orders, and court orders;
- No uploading of doorway pages, web spam, content farm pages, link spam, or any automated uploading of pages.
- States or implies that the web site is placed by SiteSell or any party with a contractual relationship with SiteSell, or that such parties endorse the Customer's products or services;
- Is pornographic or obscene. SiteSell neither sanctions nor permits web site content that contains illegal or obscene material or fosters or promotes illegal activity. Further, should Customer violate this policy, SiteSell will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer's web site, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content;
- Is violent or encouraging violence;
- Is disparaging, defamatory, libelous, or resulting in an invasion of privacy;
- Promotes or provides instructional information about illegal activities or physical harm or injury to any group, individual, institution or property, or encouraging illegal or criminal conduct, or
- Promotes or facilitates or engages in, consumer deception or fraud, spamming, drug use, drug dealing, pyramid schemes, gambling, or any other illegal activities.
5. Customer will use the Service in a manner which does not interfere with or disrupt other network users, SBI! Forums users, services, or equipment, and SiteSell reserves the right to terminate or suspend Service without notice if such interference is determined by SiteSell to exist. Such interference or disruption includes, but is not limited to:
- wide-scale distribution of messages, including bulk e-mail or unsolicited spam e-mail, or wide-scale distribution of messages to inappropriate mailing lists, newsgroups, websites, blogs or other public or private forums;
- propagation of computer worms or viruses or
- use of the network to make unauthorized entry to other computational, information, or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission.
This clause survives termination of this Agreement and does not limit SiteSell's legal recourse for damages to it or to its Customers.
6. SiteSell disclaims any responsibility for any content, goods, and services available through Customer's web site, or the quality or accuracy of any information in Customer's web site. SiteSell will not endorse, warrant, or guarantee any product or service offered through Customer's web site, and will not be a party to or in any way monitor any transaction between Customer and third-party purchasers of products or services or use of the web site, including, without limitation, all sales of goods or services, credit card transactions, banking or securities transactions, or any business, service, or merchandise agreements.
7. SiteSell shall use reasonable commercial efforts to deliver Services professionally and on a timely basis. Customer shall inform SiteSell, in writing, of any complaints or problem situations encountered as well as any special or unusual matters affecting the Services being provided.
8. SiteSell's Services are provided on an "as is" basis. SiteSell entire liability and Customer's exclusive remedy against SiteSell for any failure of performance or nonperformance of any obligation under this Agreement shall be limited to a refund of amounts paid to SiteSell for the Service. EXCEPT AS EXPRESSLY STATED HEREIN, CUSTOMER'S USE OF THE WEB SITE IS AT ITS OWN RISK AND SITESELL DISCLAIMS ANY AND ALL WARRANTIES TO CUSTOMER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TRAFFIC, LEADS AND/OR SALES GENERATION, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
9. SiteSell disclaims and shall not be liable for any other loss, injury, cost or damage suffered by Customer or any third party and shall in no event be liable for consequential, special, or indirect or incidental damages, including without limitation, damages for loss of business profits, business interruption, or loss of data, arising out of or in any way connected with the use of the web site and any information available on it, and the delay or inability to use the site or any information, even if SiteSell has been advised of the possibility of such damages. These limitations and exclusions regarding damages apply even if any remedy fails.
10. SiteSell will not be liable to any third parties for any direct, incidental, or consequential losses or damages suffered by such third parties for any reason, whether foreseeable or not, including, without limitation, damages for loss of profits, loss of income or earnings, loss of business opportunities, injury, or other loss or damage resulting directly or indirectly out of or in connection with the Customer's web site. The foregoing shall apply despite any negligence, misconduct, errors, or omissions by SiteSell, including without limitation its employees, representatives, agents, or technical operations.
11. Customer agrees to defend, indemnify, and hold harmless SiteSell and each of SiteSell's officers, directors, employees, agents, or other partners and affiliates from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim against SiteSell in connection with Customer's web site (including, but not limited to, web site content) and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including SiteSell's reasonable legal fees and expenses (whether incident to the foregoing or to SiteSell's enforcement of said rights or defense and indemnity).
12. Notwithstanding any other term or condition of this Agreement, SiteSell reserves the right to immediately suspend or terminate Service with or without notice to Customer if SiteSell determines, in its sole discretion that Customer has failed to comply with any of its obligations in this Agreement.
13. As between Customer and SiteSell, all materials, images, photos, information, and other content used by Customer to build the web site shall remain the sole and exclusive property of Customer. In addition, ownership interest to the web site shall be with the Customer. Such ownership shall be limited to the actual web site and its underlying HTML script or coding, but shall not include any rights to SiteSell's software, trade secrets, methodologies, processes, proprietary functions, know-how, and all intellectual property including, but not limited to, all copyrights, trademarks, patents, and trade secrets related to SiteSell's Services including other products or services, which shall remain the sole and exclusive property of SiteSell and its suppliers, affiliates, partners, and licensors.
14. SiteSell shall receive compensation as set forth in Schedule A which forms part of this Agreement. The compensation may be changed, from time to time, upon thirty (30) days notice. Customer shall pay for Services in advance. SiteSell shall post all such changes on its web site. In addition, for changes to monthly ongoing payments, SiteSell shall notify the Customer in advance. SiteSell shall also notify Customer when yearly renewal fees are due.
15. Customer acknowledges, agrees and authorizes SiteSell to automatically charge its credit card for successive terms of equal length as the initial subscription term, unless terminated or cancelled by either party as provided in section 18 of this agreement. As an exception, in the case of two-year initial subscriptions, the successive renewal terms shall be of one year.
16. It is a violation of this Agreement for the Customer to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, electronic cheques or other similar payment methods. SiteSell shall have the sole discretion to determine if such misuse or fraudulent use has occurred.
17. Subject to termination as provided herein, the initial term of this Agreement shall commence on the date of this Agreement and shall continue in full force and effect for one year. The Agreement shall be automatically renewed for additional one year terms, provided neither party has terminated the Agreement. Customer may also elect to change the frequency of payments from yearly to monthly or vice versa.
18. Either party may terminate the Agreement on thirty (30) days written notice. In the event of termination, SiteSell shall reimburse only the unused portion of the Services, on a pro-rata basis. Notwithstanding this, if Customer terminates the Agreement during the first ninety (90) days, SiteSell shall refund the full purchase amount.
19. SiteSell may amend these terms and conditions at any time by posting a revised version of the Agreement on its web site. The revised version will be effective at the time it is posted. In addition, if the revised version includes a substantial change, SiteSell will provide Customer with thirty (30) days' prior notice of the change.
20. SiteSell agrees that all confidential information ("Customer Confidential Information") communicated by Customer with respect to the Service is confidential. SiteSell shall not disclose any Customer Confidential Information to any other person unless specifically authorized in writing by Customer to do so, except to the extent disclosure is required by law including subpoena or an order from a court of competent jurisdiction. SiteSell shall use its best efforts to prevent inadvertent disclosure of any Customer Confidential Information to any third party.
21. Customer agrees that all documents, specifications, reports, templates, processes, software tools and all other information of whatever kind or nature that are related to the development of the web site (herein the "SiteSell Confidential Information") are trade secrets of and having significant value to SiteSell and are the intellectual property of SiteSell. Customer shall not, at any time during or after the term of this Agreement, without SiteSell's prior written consent, use, exploit, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the SiteSell Confidential Information. Not included in the definition of "SiteSell Confidential Information" is any information that can be observed by the public on the SiteSell web site, prior to logging in.
22. Nothing contained in this Agreement shall be regarded or construed as creating any relationship (whether by way of agency, joint venture, association, or partnership) between the parties other than as an independent contractor.
23. Neither party shall have the right or authority to assume or create any obligations or make any representations, warranties or commitments on behalf of the other party or to bind the other party in any respect whatsoever, nor shall he attempt to do so.
24. Any notification to the other party to this Agreement shall be deemed effective if sent by e-mail to the last known e-mail address of such party, or if faxed to the last known fax number, or if sent by first-class mail with sufficient postage attached addressed to the last known mailing address of such party.
25. Customer represents to SiteSell that Customer is at least eighteen years old and is responsible for supervising the activities of any under-age user and is legally permitted to enter into this Agreement.
26. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labour dispute, accidents, acts of war or terrorism, interruptions of communication, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or service or material required for such party to perform its obligations hereunder.
27. This is the entire agreement between the parties relating to this matter and supersedes any prior agreements whether written or oral. A party may change the address set forth herein by proper notice to the other. If any provision of this Agreement, or application of such provision to any person or in any circumstance, shall be determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement, and the application of such provision to any person or in any circumstance other than that to which it is held to be invalid, illegal or unenforceable, shall not be affected thereby. This Agreement shall not be assignable by the Customer without prior written consent of SiteSell. This Agreement shall be binding upon the Customer's successors and assigns and shall enure to the benefit of any successors and assigns of the Customer. This Agreement shall be governed by the laws of the Province of Quebec and the laws of Canada applicable therein. The parties declare that they have required that this Agreement and any related documents be drawn in the English language only.
28. Customer authorizes SiteSell to communicate with Customer via email and other electronic communication or in any other manner. SiteSell may from time to time send information to Customer that it considers relevant.
Fee Schedule for SBI! Web Services
The fee schedule for the Services shall be as follows:
- SBI! yearly service: US$299.00
- SBI! monthly service: US$29.99
All applicable taxes shall be charged to and paid by the Customer in addition to the said fees, whether billed concurrently with the fee for SiteSell's Service or subsequent to the SiteSell billing. Customer agrees to pay interest at the rate of 1.5% per month (18% per year) on all amounts not paid when due.
All fees are payable in advance prior to the commencement of the Service.
Either party may terminate the Agreement on thirty (30) days written notice. In the event of termination, SiteSell shall reimburse only the unused portion of the Services, on a pro-rata basis. Notwithstanding this, if Customer terminates the Agreement during the first ninety (90) days, SiteSell shall refund the full purchase amount.
There are optional ancillary SBI! services that may be separately purchased by Customer: Domain name change: US$50.00; WordTracker 100-query package: US$20.00; WordTracker 500-query package: US$50.00; Name Park It! yearly service: US$11.99; and Redemption Fee: US$160.00*.
* The domain name post-expiration renewal fee includes the redemption cost and domain name renewal, and has to be requested during the Redemption Period, which begins 45 days following the expiration date and ends 75 days following the expiration date.
The fees and applicable taxes are subject to change from time to time.