PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON ON THE ORDER FORM REFERENCED HEREIN, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING GLOBAT'S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. Introduction
This User Agreement ("Agreement") is an agreement between Semibase, Inc. a California Company, and the party set forth in the related order form incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services (collectively, the "Services") ordered by Customer on the Order Form. Such party is referred to in this Agreement as "Customer" or "you". Semibase reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Semibase. Activation of the Services shall indicate Semibase's acceptance of this Agreement. Subject to the terms and conditions of this Agreement, Semibase will provide to Customer the Services selected by Customer set forth on the Order Form.
2. Amendment of Agreement.
Semibase may amend or otherwise modify this Agreement. Customer agrees that Semibase's posting of any amendments or modifications to this website (http://www.Semibase.com/agreement.asp) shall constitute adequate notice to Customer and that Customer shall periodically consult this website for any changes or amendments to this Agreement. Semibase may, but is under no obligation to, provide additional notice of any amendment, modification or update of this Agreement via e-mail to Customer. If any material modification to this Agreement is unacceptable to Customer it shall be Customer's responsibility to terminate their subscription as provided in Section 3 of this Agreement. If Customer does not terminate the Agreement then Customer's continued use will mean that Customer has accepted the amended or modified Agreement.
3. Duration of Agreement and Cancellation Policy.
This Agreement may be terminated by either party by giving the other party providing written notice at least 30 days prior to the cancellation date, or by Semibase in the event of nonpayment by Customer or by Semibase, at any time, without notice if in Semibase's judgment Customer has in any way breached this Agreement.
If Semibase cancels this Agreement pursuant to any of the terms outlined in this agreement Semibase shall not refund to Customer any fees paid in advance of such cancellation and Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation.
4. Billing and Payment.
All fees for web hosting or other Services shall be in accordance with Semibase's fee schedule, which is incorporated herein by reference and may be amended from time to time. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of Semibase) shall be paid by Customer.
5. No Unauthorized Scripts or Executables.
Customer agrees not to run any scripts, executables or other programs or processes on Semibase's servers or other equipment that will in any way adversely affect the performance of said equipment.
6. Intellectual Property Rights.
Customer acknowledges that Semibase owns all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the Services and their provision. Customer further acknowledges and agrees that nothing in this Agreement shall constitute a license to Customer to resell or trade under any of Semibase's intellectual property.
7. Web Site, E-Commerce and Customer Warranties.
Customer shall assume sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party web sites, (b) the accuracy of materials on Customer Web Site(s), including, without limitation, Customer Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Semibase reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Customer Content on the Web Site, or other content not supplied by Semibase which, in Semibase's sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Semibase to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Semibase to monitor or exert editorial control over the Web Site. Semibase shall in no way be responsible for Customer's conduct or actions including but not limited to Customer's handling of third party information such as credit card numbers and any liabilities incurred by Customer including but not limited to tax liabilities for the conduct of Customer's on-line business.
Customer shall be solely responsible for the development, operation and maintenance of Customer's web site and any online store and e-commerce activities.
8. Disclaimer of Warranty.
Customer agrees that its use of Services and its reliance upon information provided by Semibase are entirely at Customer's own risk. Customer acknowledges and agrees that Semibase exercises no control over, and accepts no responsibility for, the content of data, scripts, or other information passing through Semibase's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER SEMIBASE, ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR THE SERVICES OR ANY EQUIPMENT PROVIDED IN CONJUNCTION THEREWITH. NEITHER SEMIBASE NOR ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. SEMIBASE IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY SEMIBASE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY SEMIBASE EMPLOYEE, OWNER, OR AGENT WILL CREATE A WARRANTY; NOR MAY CUSTOMER OR ANY OF CUSTOMER'S OWNERS, EMPLOYEES, OR AGENTS RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
9. Indemnification.
Customer agrees to indemnify, defend and hold harmless Semibase and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer's use of the Services, any violation by Customer of this agreement, any breach of any representation, warranty or covenant of Customer contained in this Agreement or any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
10. Limitation of Liability.
Customer agrees neither Semibase nor any of its employees, owners, or agents shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or otherwise unauthorized means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Semibase at the time) which may exist in the Services or Semibase's equipment used to provide the Services.
Under no circumstances, including negligence, shall Semibase or any of its employees, owners, or agents be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Semibase has been advised of the possibility of such damages. No Semibase Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Semibase's records, programs, equipment or services.
Notwithstanding anything to the contrary in this Agreement, Semibase's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims regardless of the legal theory or the nature of the cause of action shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the twelve (12) month period prior to the date the cause of action arose or the injury or loss occurred.
Customer understands, acknowledges and agrees that if Semibase takes any corrective action under this Agreement because of an action of Customer or one its customers that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Semibase shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Semibase.
This limitation of liability reflects an informed and voluntary allocation of risks between the parties and applies to risks both know and unknown that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
11. Prohibited Uses and Activities
Semibase may immediately take corrective action, including removal of all or a portion of the Customer's content, disconnection or discontinuance of any Services if Customer, or anyone accessing Customer's account or server space, engages in any of the prohibited Uses or Activities set forth in Section 16 of this agreement. Customer hereby agrees that Semibase shall have no liability to Customer or any of Customer's customers due to any corrective action that Semibase may take (including, without limitation, disconnection of Services).
A. Violations of Intellectual Property Rights
Customer agrees that it shall not violate any intellectual property rights and that it shall not resell services to any party which violates intellectual property rights. Any violation of any individual or entity's intellectual property rights including, rights of privacy and rights of publicity are prohibited. Semibase is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see "Copyright Infringement Notice Information" below).
B. Spamming
Customer agrees not to send spam or resell its services to anyone who sends spam. The term "spam" includes, but is not limited to, the sending of unsolicited bulk and/or commercial e-mail messages over the Internet or maintaining an open SMTP policy. In the event of of a dispute Semibase reserves the right to determine, in its sole and discretion, whether e-mail recipients were from an opt-in email list.
C. Misrepresentation of Transmission Information
Customer agrees not to forge, misrepresent, omit, or delete message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of any message or to resell services to anyone who engages in said conduct.
D. Viruses and Other Destructive Activities
Use of the Services for creating or sending malicious, destructive or nuisance code, examples of which include but are not limited to, viruses, worms and Trojan horses, or for pinging, flooding or mail-bombing, or engaging in denial of service attacks is prohibited and is a breach of this agreement. Customer also agrees not to engage in any other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment).
E. Malicious or Unauthorized Hacking
Customer agrees not conduct any "Hacking" activity and agrees that "Hacking" as herein defined includes but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in malicious or unauthorized hacking. Any such activity on the part of Customer is a breach of this Agreement.
D. Export Control Violations
The exportation of encryption software outside of the United States and/or violations of United States law relating to the exportation of software is prohibited.
F. Child Pornography
The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Semibase will as required by law, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
G. Other Illegal Activities
The use of the Services to engage in any activities that are determined by Semibase, in its sole and absolute discretion, to be illegal or which in Semibase's opinion are likely to be found to be illegal is prohibited. Such illegal or potentially illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available ponzi or pyramid schemes, fraudulently charging credit cards or displaying credit card information of third parties without their consent, and failure to comply with applicable on-line privacy laws. Semibase will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
H. Obscene, Defamatory, Abusive or Threatening Language
Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited.
I. Other Prohibited Activities
Engaging in any activity that, in Semibase's sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, Semibase's business, operations, reputation, goodwill, customers and/or customer relations, or the ability of Semibase's customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate this Agreement. In addition, the failure by a Customer to cooperate with Semibase in correcting or preventing violations of this Agreement by, or that result from the activity of, a customer of the Subscriber is a violation of this Agreement.
12. Copyright Notice Infringement Information
Pursuant to the Digital Millennium Copyright Act, Semibase has adopted a policy that provides for termination of websites hosted by Semibase that are found to infringe on copyrights of third parties. Customer expressly acknowledges that they are aware of this provision and Customer waives any claims it may have should it be injured by the enforcement of this provision. If a copyright holder believes that there has been a violation of their copyright on a website that is hosted by Semibase and the copyright holder demands that Semibase remove the website or disable the material in question, Semibase will remove the website or disable the material if the copyright holder provides Semibase with all of the following information:
A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
1. Identification of the copyrighted work that is claimed to have been or being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.
2. Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material. Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.
3. A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
4. A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
13. Disclosure of Customer Information and Legal Process
Although Semibase will ordinarily maintain strict Customer confidentiality there are certain exceptions where Semibase may disclose any information in its possession, including, without limitation, information about Subscribers, Internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or official governmental request, to protect Semibase or others from harm, and/or to ensure the proper operation of the Services. Semibase has no obligation to notify any person, including the Subscriber about whom information is sought, that Semibase has provided the information. Customer acknowledges the above exceptions and agrees to them without reservation.
14. Force Majeure.
Semibase shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
15. Governing Law; Jurisdiction; Arbitration.
This Agreement shall be governed in all respects by California law without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in California. Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the American Arbitration Association ("AAA") in accordance with its then existing Commercial Arbitration Rules (collectively, the "AAA Rules") and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Studio City, California, or any other place selected by mutual agreement of the parties. An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in personam jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. The terms of this section shall survive any termination of this Agreement.
16. Assignment.
Customer shall not have the right to assign this Agreement without the prior written consent of Semibase. This Agreement shall be binding upon and inure to the benefit of Customer and Semibase and their successors and permitted assigns.
17. Entire Agreement; Severability.
This Agreement, together with the Order Form and any other documents or agreements identified in this Agreement, represents the entire agreement between the parties, and supersedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the parties agree that the remainder of this Agreement shall remain in full force and effect.
Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.
