TERMS OF SERVICE
This Website Agreement ("Agreement") is a valid legal agreement between
Open Sky Media ("Publisher") and you,
the individual or business entity ordering Publisher's web services ("Services")
either via an on-line order form or via Publisher's sales person ("Sign-up Process").
This Agreement governs your purchase and use of Publisher's Services ordered by
you during the Sign-up Process.
Individuals, organizations, and businesses
located in countries subject to United States embargoes as well as any person,
listed on the U.S. Treasury Department's list of Specially Designated Nationals,
or listed on U.S. Commerce Department's Table of Denial Order or Entities List
may not enter into agreements associated with the Products or Services available
from Publisher. Restricted countries currently include (and are subject to change
per guidance from the United States government) Cuba, Iran, North Korea and Syria.
By placing your order with Publisher, you acknowledge that you are not such a
person, organization or business.
You must complete the acceptance process
below before Publisher will activate the Services. By selecting the "ACCEPT"
button below, you agree to be bound by the terms and conditions of this
Agreement ("Terms of Service"). If you do not agree to be bound by these
Terms of Service, you should select the "DECLINE" button below. Publisher
reserves the right to reject this Agreement for any reason prior to acceptance.
Activation of the Services will indicate Publisher's acceptance of this Agreement.
Publisher may amend or otherwise modify this Agreement at any time and
from time to time without notice. You will be bound by the amended Agreement
upon your continued use of the Services after the revised Agreement is posted
on Publisher’s website. You may identify whether Publisher has revised this
Agreement by referring to the Effective Date in Section 8.9 below.
Publisher offers various website, web marketing and advertising plans which are published on Publisher web properties. Subject to these Terms of Service and during the term of this Agreement, Publisher agrees to provide to you the Services you select during the Sign-up Process. Publisher reserves the right to amend its Services offerings and to add, delete, suspend or modify the terms and conditions of the Services, at any time, and to determine whether and when any such changes apply to both existing and future customers.
2. Fees and Payment Terms
2.1 Publisher may charge set up fees, recurring service fees, and other one-time fees for the services you have ordered (collectively "Service Fees"). The rate you will be billed for the Services is determined during the sign up process and will not change during the term of this agreement.
2.2 All Service Fees are due on the first day of the billing cycle. All Service Fees and other monetary payments must be made in U.S. Dollars. If you are not billed by invoice, you authorize Publisher to charge the credit card (your "Payment Process") that you provide to Publisher for payment of the Service Fees for Services you order before Publisher activates the Services. You further authorize Publisher to charge you according to your Payment Process for the amount of all subsequent periodic Service Fees (at Publisher's then-current rates) prior to the commencement of any renewal period for such Services as described in Section 3 of this Agreement and for the amount of all other fees and charges (at Publisher's then-current rates) as they become payable pursuant to this Agreement. Services Fees and all other fees and charges that become due during any renewal period will be charged according to your previous payment option and/or Payment Process. All Payment Process payments are deemed authorized by you and will be assessed in real time.
2.3 If Publisher does not receive payment from your Payment Processor (i.e., credit or debit card issuer or other financial institution), you agree to pay Publisher all amounts due upon demand. Publisher may charge you for a late payment fee equal to one percent (1.0%) on any overdue balance, or the maximum amount allowed by law if less, for as long as the overdue amount remains unpaid. Publisher may also charge you for a reasonable administrative fee for any returned checks or if your Payment Processor declines payment. You agree to pay Publisher's collection costs, including reasonable attorneys' fees, if Publisher is required to take action to collect any amounts that you fail to pay when due pursuant to this Agreement.
2.4 Publisher may, in its sole and exclusive discretion, immediately suspend or terminate your Services without notice to you if you fail to provide valid Payment Processor information or authorization or fail to pay for any Services when due. Publisher may charge a Fifty Dollar ($100.00) fee to reinstate any Service that has been suspended or terminated.
3. Term and Termination
3.1 The Agreement will continue for the term stated during the Sign-up Process or, if no term is stated, on a month-to-month basis. The Agreement will automatically renew for successive terms, each equal in length to that of the initial term. Each renewal will be governed by the Agreement in effect (posted on our website) at the time of the renewal. Either party may terminate this Agreement effective at the end of the then current term, whether annual, month-to-month or some other fixed term, upon at least thirty (30) days notice prior to the end of the then current term and such termination will be effective upon expiration on the last day of the then current term. The termination of this Agreement will constitute the termination of all of your Services.
3.2 If you breach any term of this Agreement Publisher may, in its sole and exclusive discretion, suspend or terminate your Services immediately and without notice to you.
3.3 IF THIS AGREEMENT IS TERMINATED FOR ANY REASON PRIOR TO THE EXPIRATION OF THE INITIAL TERM, PUBLISHER WILL NOT PROVIDE ANY REFUND OR CREDIT TO YOU FOR ANY SERVICE FEES THAT YOU PAID IN ADVANCE, BY CREDIT CARD OR OTHERWISE
4. Warranty Disclaimers and Limitations of Liability
YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 4 ARE REASONABLE AND ARE FUNDAMENTAL ELEMENTS OF THE AGREEMENT BETWEEN YOU AND PUBLISHER.
4.1 PUBLISHER PROVIDES THE SERVICES AND THE LICENSED MATERIAL TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. PUBLISHER MAKES NO EXPRESS WARRANTIES OF ANY KIND AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT REGARDING ANY SERVICES OR ANY EQUIPMENT THAT PUBLISHER MAY PROVIDE TO YOU OR REGARDING THE LICENSED MATERIAL. PUBLISHER DOES NOT WARRANT THAT THE SERVICES, THE LICENSED MATERIAL OR THE USE OF EITHER WILL BE WITHOUT INTERRUPTION, ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. PUBLISHER MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE LICENSED MATERIAL OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES, THE LICENSED MATERIAL OR THE INTERNET. PUBLISHER 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 PUBLISHER. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY PUBLISHER, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, AFFILLIATES OR CONTRACTORS WILL CREATE A WARRANTY, EXPRESS OR IMPLIED, NOR MAY YOU RELY ON ANY SUCH ADVICE OR INFORMATION.
4.2 Customer shall indemnify, defend and hold harmless Publisher and its affiliates from and against any claims, causes of action, losses, damages, costs or expenses (collectively, "Claims") arising out of or relating to use by or through Customer of the Services in any way, including any breach of our Acceptable Use Policy.
4.3 Information obtained by you from the Internet may be inaccurate, offensive or in some cases illegal. Publisher has no control over information contained on the Internet and accepts no responsibility for any information that you may receive via the Internet.
4.4 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 Services or obtain from the Internet.
4.5 You agree that if Publisher 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 Publisher shall have no liability to you or your end users due to any corrective action taken by Publisher.
4.6 Publisher strongly encourages you to back-up your data regularly. You agree that Publisher has no obligation to back-up any data related to your website unless Publisher expressly agrees otherwise in writing and you have currently paid for such back-up Services. Customer acknowledges and agrees that while Publisher may perform certain backups as part of its internal operations with respect to the Services, such backups are not meant to be a complete disaster recovery solution for Customer and, as such, Customer is solely responsible for backup of its data residing on Publisher's servers.
4.7 YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD PUBLISHER OR ITS LICENSORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS PUBLISHER'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
4.8 YOU AGREE THAT YOU WILL NOT HOLD PUBLISHER OR ITS LICENSORS LIABLE UNDER ANY CIRCUMSTANCE FOR ANY DAMAGES THAT YOU SUFFER THAT RESULT FROM (I) THE USE OF OR INABILITY TO USE THE SERVICES OR LICENSED MATERIAL, (II) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, LOSS OR CORRUPTION OF DATA AND/OR BACK-UP DATA, FAILURE TO PERFORM DATA BACK-UP FUNCTIONS (OTHER THAN THOSE EXPRESSLY AGREED TO BY PUBLISHER AND CURRENTLY PAID FOR BY YOU), ERRORS, VIRUSES, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, NON-DELIVERIES, MISDELIVERIES OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT CAUSED BY PUBLISHER'S NEGLIGENCE, ACTS OF GOD, ANY FAILURE OF PUBLISHER'S NETWORK OR SYSTEMS, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PUBLISHER'S RECORDS, PROGRAMS, EQUIPMENT OR SERVICES; (III) YOUR ACTS OR OMISSIONS; OR (IV) THE ACTS OR OMISSIONS OF THIRD PARTIES.
4.9 YOU AGREE THAT PUBLISHER'S MAXIMUM LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, COSTS AND CAUSES OF ACTIONS FROM ANY AND ALL CLAIMS (WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY) SHALL BE LIMITED TO THE LESSER OF (A) THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY YOU TO PUBLISHER FOR THE THREE MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE, (B) PROVEN DIRECT DAMAGES, AND (C) ONE HUNDRED DOLLARS ($100.00).
4.10 The terms of Section 4 shall survive any termination of this Agreement.
5. Restrictions on Use
5.1 You shall not (and you agree not to allow any third party to):
- modify, adapt, translate, or reverse engineer any portion of the Publisher website;
- remove any copyright, trademark or other proprietary rights notices contained in or on the Publisher website;
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Publisher website;
- collect any information about other users or members (including usernames and/or email addresses) for any purpose other than to solicit and share reviews with other Publisher users or members;
- reformat or frame any portion of the web pages that are part of the Publisher website;
- create user accounts by automated means or under false or fraudulent pretenses;
- create or transmit unwanted electronic communications such as "spam" to other users or members of the Publisher website or otherwise interfere with other user's or member's enjoyment of the Publisher website;
- submit any third party materials or Content without such third party's prior written consent;
- submit any Content or material that falsely express or imply that such Content or material is sponsored or endorsed by Publisher;
- submit any Content or material that infringes, misappropriates or violates the intellectual property, publicity, privacy or other rights of any party;
- transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature;
- use of the Publisher website to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene;
- copy or store any Content offered on the Publisher website for other than your own use;
- submit Content or materials that are unlawful or promote or encourage illegal activity;
- submit false or misleading information to Publisher;
- take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure;
- use the Publisher website, intentionally or unintentionally, to violate any applicable local, state, national or international law; or
- collect or store personal data about other users in connection with the prohibited activities described in this paragraph.
Content Posted By You on the Publisher website.
- You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights.
- You understand and agree that Publisher may review and delete any Content, business listings (including business name, address, phone, fax, distance, reviews, rating, reviews) that in the sole judgment of Publisher violates these Terms of Service or which might be offensive, illegal, or that might violate the rights of, harm, or threaten the safety of other users or members of the Publisher website and/or other website users.
- You are solely responsible for any Content that you publish or display on the Publisher website or transmit to other members and/or other website users.
- You agree that you will only post Content that you believe to be true and you will not purposely provide false or misleading information.
- The following is a partial list of the kind of Content and communications that are illegal or prohibited on/through the Publisher website. Publisher reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Publisher website and terminating the Account of such violators or blocking your use of the Publisher website. You may not post Content that:
- is false or intentionally misleading;
- is patently offensive to users of the Publisher website, such as Content or messages that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- involves the transmission of unsolicited mass mailing or "spamming";
- promotes illegal activities or conduct that is abusive;
- is threatening, obscene, defamatory or libelous;
- is pornographic or sexually explicit in nature; and
- seeks or recommends providers of material that exploits people under the age of 18 in a sexual or violent manner, or seeks or recommends providers that solicit personal information from anyone under 18.
5.2 Publisher does not intend to systematically monitor the content that is submitted, stored, distributed or disseminated by you via the Services (the "Your 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. Publisher, 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 Services, in the event of notice of any possible violation of the Terms of Service by you or your end users. You agree that Publisher will have no liability to you or any of your end users due to any corrective action that Publisher may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
5.3 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.
5.4 Your use of networks or computing resources provided to Publisher by third party providers and made available to you as part of the Services is subject to the respective permission and usage policies of such third parties.
5.5 You expressly (i) grant to Publisher a license to cache the entirety of Your Content and your web site, including content supplied by third parties, hosted by Publisher 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.
6. Trademarks and Proprietary Rights
6.1 Publisher and other pending and/or registered trademarks and service marks, and other graphics, logos, and service names used by Publisher in connection with the Services or other products or services offered by Publisher and its subsidiaries and affiliates, to identify the products or Services of Publisher or its subsidiaries and affiliates (collectively the "Publisher Trademarks") are the trademarks of Publisher and its subsidiaries and affiliates. You agree not to use the Publisher Trademarks in connection with your products or services, or any third-party's products or services, or in any manner that disparages or discredits Publisher. All other brands and names (including third-party product names) used in connection with the Services or other products or services offered by Publisher and its subsidiaries and affiliates are the property of their respective owners.
6.2 Publisher acknowledges that it claims no proprietary rights in Your Content or any intellectual property right contained therein. You acknowledge and agree that Publisher and its licensors own all right, title, and interest in: (a) the Services and any other products or services offered by Publisher and its subsidiaries and affiliates; (b) the technology available to you as part of the Services; (c) and all content, including but not limited to text, software, music, sound, photographs, video, graphics, or other material contained or maintained on the websites maintained by Publisher and its subsidiaries and affiliates (collectively "Publisher Content"), excluding Your Content.
It is your responsibility to provide accurate and complete account and contact information, including a valid e-mail address, to Publisher during the Sign-up Process. It is also your responsibility to inform Publisher promptly of any changes to your account or contact information. Publisher has no responsibility for communications that are misdirected as a result of your failure to provide Publisher with updated contact information or as a result of the suspension or termination of your Services.
Publisher may provide notice to you required by this Agreement via e-mail at the address provided by you. You agree that notice to you at this address is deemed sufficient regardless of your receipt of such email. You must provide all notices to Publisher required in writing to our email or mailing address as posted on our website.
8.2 Publisher will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquakes, hurricanes, tropical storms and depressions, inclement weather, labor disputes and strikes, riots, war and governmental requirements.
8.3 The validity, interpretation, enforceability and performance of this agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts or choice of laws.
8.4 If any provision(s) of this Agreement is held to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with all other provisions of this Agreement remaining in full force and effect.
8.5 Publisher's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Publisher in writing.
8.7 This Agreement shall be binding upon and inure to the benefit of Customer, Publisher and Publisher's successors and assigns. Customer may not assign this Agreement without the prior written consent of Publisher, which consent will not be unreasonably withheld or delayed.
8.8 You represent and warrant that, if you are an individual, you are at least 18 years of age, that you have read this Agreement, including Publisher's Terms of Service, and that you agree to be bound by the terms and conditions of the Agreement. You acknowledge and agree that Publisher can and will rely on all representations, warranties, covenants and agreements that you make herein.
8.9 Effective date: this version of the Services Agreement was last updated on February 3, 2007.