Acceptance Of Terms
effortlessE LLC, a California Company ("effortlessE"), is pleased to provide you (or "User") with Web site products and services which will allow you to edit and utilize your own personalized Web site that is hosted on effortlessE's servers. By selecting "Accept", you are indicating your complete and unconditional acceptance of the terms and conditions set forth in this Terms Of Service Agreement ("Agreement"). Before accepting these terms and conditions, please take a moment to carefully read this Agreement, as well as other policies, procedures and guidelines contained on effortlessE's Web site. If there are any terms or conditions that you do not understand, please seek professional advice. This Agreement, together with all other policies, procedures and guidelines posted on effortlessE's Web site, as they may be amended from time to time, shall constitute the entire Agreement between you and effortlessE. effortlessE may change this Agreement at any time, for any reason, without notice to you, and such changes shall be effective immediately. Accordingly, you further agree to periodically review the current version of this Agreement, as it is posted on effortlessE's Web site, to be aware of any changes or updates. Your continued access and use of the Services shall be construed as your conclusive acceptance of this Agreement.
Term and Renewal
This Agreement shall be in effect until it is terminated in accordance with the termination provisions herein.
Description Of Services
effortlessE may provide you with one or more of the following features on your Web site depending on the package that you select: Web site, co-branded corporate Web site pages, personal, family, group and business related Web site pages, effortlessE and third party Content, storage space, Intranet, e-commerce capabilities, domain names, e-mail accounts, chat and messaging services along with Web site hosting, maintenance, support services, and custom software development (collectively, the "Services"). Unless explicitly stated otherwise, any new feature that augments or enhances the Services, shall be considered to be part of the Services. effortlessE reserves the right to modify, suspend or discontinue the Services (or any part thereof), at any time, without notice to you. You expressly agree that you, or any related third party, shall not hold effortlessE liable for any losses, damages or consequences whatsoever from such modification, suspension or discontinuation of the Services.
Use Of The Services
You may utilize the Services for personal or commercial purposes subject to the terms and conditions of this Agreement. If you use the Services for commercial purposes, you expressly agree to be solely responsible for all goods and services offered on your Web site, and represent and warrant that you have full power and authority under all relevant laws, including any necessary licenses and permits from all applicable jurisdictions, to engage in the marketing and sale of said goods and services in connection with the Services. You are solely responsible for obtaining access to the Services and any related third party fees (such as Internet service provider fees or airtime charges) as well as any and all equipment necessary to access the Services. You hereby agree that effortlessE may establish general policies and limits concerning your use of the Services, including without limitation: (i) the use of effortlessE's eCommerce, webPOS or other services for primarily hosting or picture hosting purposes, instead of their intended uses, furthermore upon discovery effortlessE may charge standard fees plus current bandwidth usage rates for any client whose bandwidth usage is less than 80% for intended product; (ii) the maximum number of days that e-mail messages, message board postings or other uploaded Content will be retained by the Services; (iii) the maximum number of e-mail messages that may be sent from, or received by, a User of the Services; (iv) the maximum size of any e-mail message that may be sent from, or received by, a User of the Services; and (iiv) the maximum disk space that will be allotted to a User on effortlessE's servers. Furthermore, you expressly agree that effortlessE has no liability for any losses, damages or consequences whatsoever resulting from deletion or failure to store any messages or communications or other Content or material maintained or transmitted by the Services. effortlessE reserves the right, in its sole and absolute discretion, to change these general policies and limits at any time, without notice to you.
Grant Of Limited License
Your use of the Services requires you to use certain proprietary software, development tools and utilities of effortlessE and its suppliers ("Software"). Accordingly, effortlessE grants you a personal, non-exclusive, non-assignable, non-transferable limited license to use the object code of the Software during the term of this Agreement solely for the purpose of using the Services. Except as expressly permitted by effortlessE, you may not modify, copy, reproduce, republish, transmit, display, license, create derivative works from, transfer, distribute or commercially exploit Content or materials on effortlessE's Web site. You are expressly prohibited, directly or indirectly through any third party, from any of the following: (i) copying, modifying, creating a derivative work of, reverse engineering, reverse assembling or otherwise attempting to discover the source code of the Software; (ii) renting, leasing, selling, assigning, transferring, re-licensing, sublicensing, granting a security interest in, or gaining unauthorized access to the Software or Services; and (iii) accessing the Services by any means other than through the interface that is provided by effortlessE for use in accessing the Services.
effortlessE has no obligation to screen the activity of, or Content provided by, Users of the Services. effortlessE, however, reserves the right to monitor and terminate any User, including deactivation of their site(s), whom it believes, in its sole and absolute discretion, offers goods or services, or uses the Services to transmit, convey, display, post, e-mail, upload, download or otherwise make available Content, or any materials, that: (i) are libelous, defamatory, vulgar, obscene, offensive, indecent, pornographic, of a gambling nature, hateful, abusive, threatening, of a stalking nature, are objectionable or otherwise inappropriate; (ii) could potentially be harmful to minors; (iii) disclose personal private matters about any person, company, organization or entity without the consent of said person, company, organization or entity; (iv) contain viruses, worms, "Trojan horses" or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Services or any computer software, hardware or telecommunications equipment; (v) violate the property rights, including any applicable copyright, patent, trade secrets, or Trademarks, of effortlessE or any third party; (vi) use unsolicited or unauthorized advertising, promotional materials, junk mail, "spam" or any other form of promotional materials that are prohibited by applicable law; (vii) are posted anonymously, misrepresents or falsely states who you are when you are using the Services, such as impersonating any person or entity; (viii) interfere with other Users use of the Services; (ix) are a violation, or potential violation of a contract or fiduciary responsibility (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (x) are a violation, or potential violation of any applicable local, state, national or international laws, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; (xi) could potentially subject effortlessE to any civil or criminal liabilities; or (xii) could potentially harm effortlessE's reputation or good will. Furthermore, you explicitly agree that you shall not use the Services at any time to upload, download, transmit, convey or display any materials that violate, or potentially violate the policies outlined in this section.
You agree to comply with all rules regarding online conduct and acceptable Content in the country in which you reside. Furthermore, you expressly agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you reside.
Protection Of Children
effortlessE is concerned about the safety and security of children. Children under 13 may not submit any personally identifiable information to us, and if we discover that we have inadvertently gathered any such information for a child under 13, we will take appropriate steps to delete it. Children over 13 should only provide us with personally identifiable information if they have explicit permission from a parent or legal guardian. If your child has submitted personal information, and you wish to review, change and/or delete such information as well as refuse to allow any further collection or use of the child’s information, please contact us at the address provided below. effortlessE is proud to stand by the Children’s Online Privacy Protection Act. For more information on COPPA, please visit http://www.ftc.gov/bcp/conline/pubs/buspubs/coppa.htm.
Price Changes & Payment Policy
You will be informed at the time of signup of your setup and ongoing monthly fees. Your specific fees may differ from those on the Web Site, depending on what package you select and when. You expressly understand, acknowledge and agree with the fees being charged for the Services and hereby authorize effortlessE to automatically charge your credit card or debit your bank account, or bill you via e-mail for all charges. You also expressly agree that all setup fees, custom design work and hardware are non-refundable, and that you will not perform a credit card charge back or dispute these fees. All fees for the Services are payable in U.S. dollars. effortlessE may, in its sole and absolute discretion, adjust upward or downward the fees it charges for the Services at any time, for any reason, without prior notice, however your base monthly rate will not increase for the same service level as long as you are and continue to be in good standing, without Service interruption. If effortlessE is unable to process said fees to your credit card, successfully complete a bank draft, or does not receive another form of payment by the due date of your invoice, you will incur additional charges of $25.00 plus 10% of your total monthly recurring charges, and this may result in termination of Services. All accounts that are disconnected for non payment are subject to a reconnect fee of $30 per location not to exceed 20% of your total monthly recurring charges.
You agree that all information, data, text, software, music, sound, photographs, graphics, video, messages and all other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the individual, organization or entity from which said Content originated. Accordingly, you are solely responsible for the accuracy, integrity and quality of any Content that you transmit, convey, display, post, e-mail, upload, download or otherwise make available via the Services. effortlessE does not guarantee the accuracy, integrity or quality of any Content. You further understand, acknowledge and agree that by using the Services, you may be exposed to Content that is offensive, indecent, objectionable, harmful or dangerous. Under no circumstances will effortlessE be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or for any losses, damages or consequences whatsoever incurred as a result of the use of any Content transmitted, conveyed, displayed, posted, e-mailed, uploaded, downloaded or otherwise made available via the Services.
Materials Submitted To effortlessE
effortlessE does not claim ownership rights in any Content that you own, or are owned by a third party, and that you have provided for inclusion in the Services and/or incorporation onto your Web site. Accordingly, you are solely responsible for ensuring that said Content does not violate any of effortlessE's policies or rights, or any third party's rights. With respect to materials that you submit or make available for inclusion on publicly accessible areas of the Services, you hereby grant effortlessE the following world-wide, royalty-free, transferable, assignable and non-exclusive license(s), as applicable: (i) with respect to photos, graphics, audio or video you submit, or make available, for inclusion on publicly accessible areas of the Services, effortlessE shall be granted the license to use, distribute, reproduce, modify, translate, reformat, adapt, publicly perform, prepare derivative works of, publish and publicly display such materials on the Services solely for the purposes for which such materials were submitted or made available. This license exists only for as long as you elect to continue to include such materials on the Services and will terminate at the time you remove, or effortlessE removes, such materials from the Services; and (ii) with respect to materials other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Services, effortlessE shall be granted a perpetual, irrevocable and fully sub-licensable license to use, distribute, reproduce, modify, translate, reformat, adapt, publicly perform, prepare derivative works of, publish and publicly display such materials (in whole or in part) and to incorporate such materials into other works in any format or medium now known or later developed. "Publicly accessible" areas of the Services are those areas that are intended by effortlessE to be available to the general public. This license exists only for as long as you elect to continue to include such materials on the Services and will terminate at the time you remove, or effortlessE removes, such materials from the Services.
An effortlessE Web site may also contain links to other third party Web sites and resources. Since third party Web sites, including their Content, are outside the control of effortlessE, you understand, acknowledge and agree that effortlessE is not liable for any losses, damages or consequences whatsoever resulting from your access or use of third party Web sites or resources.
Communications From effortlessE
You agree to receive all communications from effortlessE, whether via telephone, facsimile, or e-mail, and expressly agree not to consider any such communication(s) as unsolicited. Refusal to receive such communications from effortlessE, will constitute grounds for termination of this Agreement and deactivation of your Web site.
effortlessE recognizes the importance of each User's privacy and agrees to take reasonable steps to ensure their privacy. Accordingly, effortlessE shall not: sell, rent, show, divulge or otherwise share private information about Users with third parties except for the following purposes: (i) providing products or services for each User; (ii) providing information to companies that provide products or services on behalf of effortlessE, provided that these companies do not have the right to use such information beyond what is necessary to provide said products or services to effortlessE; or (iii) responding to any subpoenas, legal processes or court orders.
effortlessE does not tolerate spamming by any User. effortlessE defines spamming as sending unsolicited commercial e-mail that: (i) is addressed to someone with whom you have never had a business or personal relationship or who has not requested or consented to receipt of the e-mail message; (ii) could potentially lead to criticism and complaints of effortlessE or its Services; (iii) is offensive, vulgar, libelous, defamatory, obscene, indecent, pornographic, of a gambling nature, hateful, abusive or otherwise inappropriate; (iv) petitions for signatures; (v) violates, or potentially violates any law or statute in any applicable jurisdiction; (vi) does not provide a clear and easy means to unsubscribe from the mailing list; (vii) conceals the identity of the sender, their return address, or the e-mail address of origin; or (viii) violates any third party's rights. effortlessE reserves the right, in its sole and absolute discretion, to immediately terminate this Agreement and deactivate your Web site if it believes you are: (a) using the Services to spam others for any reason whatsoever, (b) spamming others in an attempt to promote, advertise or market effortlessE, it's products or opportunity; or (c) spamming others in an attempt to solicit or drive business to your effortlessE Web site.
Acquisition Of A Domain Name
If you elect to purchase and register a domain name through effortlessE, you hereby authorize effortlessE to acquire your selected domain name, and to enter into any required agreements, on your behalf, with the applicable suppliers of domain name registration services. effortlessE agrees and acknowledges that you will own all right, title and interest to your selected domain name provided that you pay all costs and fees related to acquisition and registration of said domain name. You further agree that you will be solely responsible for any claim, liability or cause of action arising from, or attendant to, your domain name, and that you will be fully responsible for any claim or demand resulting from your selection and use of the domain name.
Termination At Will
Either Party may immediately terminate this Agreement, for any reason whatsoever, with notice to the other Party. All monies for Services performed or products become due and payable immediately upon termination of this Agreement. Users wishing to terminate this Agreement and cancel the Services should contact Customer Service.
Termination For Cause
effortlessE reserves the right to immediately terminate this Agreement and deactivate your Web site and Services if it believes, in its sole and absolute discretion, that you have: (i) violated, or threaten to violate, the terms of this Agreement; or (ii) created, or are creating, Web sites as a nuisance or in a deliberate attempt to degrade or otherwise interfere with the Services. Any User who is terminated for cause under this section and whose Web site and Services have been deactivated hereby agrees to forfeit any and all rights, claims and/or causes of action against effortlessE, including without limitation their rights to any refunds, or for any losses, expenses, damages or costs incurred as a result of such termination and deactivation.
You will be fully responsible for maintaining the confidentiality of your passwords, and you will notify effortlessE immediately if you believe that the security of your account has been compromised. EFFORTLESSE DOES NOT REPRESENT OR IN ANY WAY WARRANT THAT ACCOUNT INFORMATION WILL REMAIN SECURE AND EFFORTLESSE SHALL NOT BE LIABLE FOR LOSSES OR DAMAGES RESULTING FROM ANY SECURITY BREACHES.
Ownership Of Intellectual Property
effortlessE and its suppliers are the exclusive owners of all right, title and interest in and to the Software and Services along with any and all related Intellectual Property Rights including, without limitation, all associated rights under the laws of copyright (including derivative works), Trademarks and patent. Nothing in this Agreement shall be deemed to limit or restrict effortlessE, or its suppliers and affiliates, from providing its Software, Services or technology to any third party for any purpose whatsoever, or in any way affect the rights granted to such other third parties. The use of any of effortlessE's Software, Services or Intellectual Property Rights shall in no way be construed by any User as granting or conferring any Intellectual Property rights of effortlessE. Furthermore, you expressly agree not to alter or delete any copyright notices or Trademarks included in any Software or Services.
"effortlessE" Domain Names
The name "effortlessE" is a trademark of effortlessE LLC and as such constitutes intellectual property of effortlessE. To protect its rights along with goodwill associated with said name, you expressly agree not to purchase, or otherwise acquire or use any domain name that includes the name "effortlessE" without the prior written consent of an officer of effortlessE LLC. Violation of this policy will result in termination of this Agreement, immediate suspension of your Services and other remedies and legal action(s) that effortlessE may take to enforce its rights in and to the name "effortlessE".
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (I) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EFFORTLESSE EXPRESSLY DISCLAIMS 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; (II) EFFORTLESSE MAKES NO WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (E) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; (III) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE 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 ANY SUCH MATERIAL; AND (IV) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EFFORTLESSE OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT EFFORTLESSE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EFFORTLESSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. EFFORTLESSE'S ENTIRE LIABILITY TO YOU AND YOUR EXCLUSIVE REMEDY FOR ANY AND ALL LOSSES, CLAIMS, DAMAGES OR LIABILITIES OF ANY KIND CAUSED BY THE SERVICES SHALL BE NO MORE THAN THE FEES PAID BY YOU.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EFFORTLESSE AND ITS PARENT, AFFILIATES OR SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, LICENSORS, DIRECTORS, SUPPLIERS FROM, AND AGAINST, ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES, RESULTING FROM: (I) ANY BREACH OF ANY REPRESENTATION OR WARRANTY IN THIS AGREEMENT; (II) CLAIMS RELATING TO THE SERVICES WHICH ARE CAUSED BY YOUR ACT OR OMISSIONS BY YOU OR ANY OF YOUR AUTHORIZED ASSOCIATES; OR (III) ANY THIRD PARTY CLAIMS OF INFRINGEMENT OF COPYRIGHT, PATENT, LITERARY, PRIVACY, PUBLICITY, TRADEMARK, SERVICE MARK OR ANY OTHER PERSONAL, MORAL, CONTRACT, OR PROPERTY RIGHT OF ANY PERSON, OR ANY OTHER ALLEGED INACCURACY, OMISSION, OR DEFICIENCY ALLEGED TO HAVE OCCURRED WHICH RESULTED FROM YOUR CONTENT, THE USE OF YOUR WEB SITE AND ANY PRODUCTS OR SERVICES THAT ARE DISTRIBUTED OR DISPLAYED THROUGH YOUR WEB SITE.
This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions. effortlessE may assign or transfer this Agreement and its rights and obligations herein without notice to you. You may not assign, pledge or otherwise transfer any interest in this Agreement whatsoever. This Agreement supersedes any prior understandings or written or oral agreements between effortlessE and you relative to the subject matter, and there are no other representations, understandings or agreements between the Parties relative to the subject matter. If a court determines that a word, phrase, sentence, paragraph, Section or clause is unenforceable, illegal or void then it shall be severed and all of the other provisions of this Agreement shall remain operative and in full force and effect. No delay or omission by effortlessE to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power of effortlessE. A waiver by effortlessE of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. The headings in this Agreement are for ease of reference and do not affect the construction of this Agreement. All notices and other communications required or permitted hereunder to effortlessE shall be in writing and mailed by certified mail or express air courier, charges prepaid, to the following address: #232 5694 Mission Center Road Suite 602, San Diego CA 92108.
Except for actions related to the payment for Services, the protection of effortlessE's Intellectual Property Rights, confidential information or any other proprietary rights and the enforcement an arbitrator's decision hereunder, all disputes, controversies, and claims arising out of this Agreement shall be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") then in effect. The proceedings shall be held in San Diego, CA under the auspices of the AAA. As a minimum set of rules in the proceeding, the Parties agree as follows: i) any cause of action or claim you may have with respect to the Services must be commenced within one (1) year after such claim or cause of action arose or be forever barred; (ii) the arbitration proceeding shall be held by a single arbitrator mutually acceptable to the Parties; (iii) each Party shall equally bear the costs and fees of the arbitration proceeding, and each Party shall bear its own legal expenses; (iv) any arbitration proceeding hereunder shall be conducted on a confidential basis; (v) the decision of the arbitrator shall be considered as a final and binding resolution of the dispute, and may be entered as a judgment in a court of competent jurisdiction within San Diego County, California. Each Party agrees to submit to the jurisdiction of any such court for purposes of the enforcement of any such decision, award, order, or judgment; and (vi) neither Party shall sue the other where the basis of the suit is a dispute over the express terms of this Agreement except for: (a) injunctive relief for infringement or misappropriation of Intellectual Property Rights, confidential information or any other proprietary rights; or (b) enforcement of the arbitrator's decision in the event the other Party is not performing in accordance with the arbitrator's decision.