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WebAura USER AGREEMENT
This User Agreement ("Agreement") is an agreement between WebAura and the party set forth in the related WebAura Design Lease Agreement ("User" or "You" and "Your") incorporated herein by reference (together with any subsequent WebAura Design Lease Agreement or other online signup, acceptance or order form submitted by User, the “Lease Agreement"), and applies to the purchase of all services ordered by User on the (collectively, the "Services"). As used herein the term "User" and "You" shall also include any and all users, customers, subscribers, affiliates (including without limitations Users or non-Users to whom WebAura provides links or banners to promote the services or products of WebAura or any third party the services or products of which are offered by or obtained through or in connection with WebAura), resellers or others (i) who sign up for, use or obtain services or products from WebAura or from any third party services or products of which are offered by or obtained through or in connection with WebAura, or (ii) who visit the Web sites of WebAura or of any such third party.
PLEASE READ THIS AGREEMENT CAREFULLY.
SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING OUR ACCEPTABLE USE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Acceptable Use Policy. Under this Agreement, User shall comply with WebAura's then current Acceptable Use Policy ("AUP"), as amended, modified or updated from time to time by WebAura, and other agreements which currently can be viewed under the Terms of Service section of this Web site (collectively, the "Terms of Service"), and which is incorporated in this Agreement by reference. User hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. WebAura does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by User via the Service (the "User Content"). User Content includes content of User's and/or users of User's Web site. Accordingly, under this Agreement, You will be responsible for Your users content and activities on Your Web site. Notwithstanding anything to the contrary contained in this Agreement, WebAura may immediately take corrective action, including removal of all or a portion of the User Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by User of the AUP. In the event WebAura takes corrective action due to a violation of the AUP, WebAura shall not refund to User any fees paid in advance of such corrective action. User hereby agrees that WebAura shall have no liability to User or any of User's users due to any corrective action that WebAura may take (including, without limitation, suspension, termination or disconnection of Services).
HIPAA Disclaimer. We are not “HIPAA compliant. You are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. WebAura does not control or monitor the information or data you store on, or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to “protected health information,” as defined under HIPAA is a material violation of this User Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that WebAura is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, please contact us.
User's Representations and Warranties.
User hereby represents and warrants to WebAura, and agrees that during the Initial Term and any Term thereafter User will ensure that:
User is the owner or valid licensee of the User Content and each element thereof, and User has secured all necessary licenses, consents, permissions, waivers and releases for the use of the
User Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by WebAura to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
User's use, publication and display of the User Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated;
User will comply with all applicable laws, rules and regulations regarding the User Content and the
User Web site and will use the User Web site only for lawful purposes; and
User has used its best efforts to ensure that the User Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
User shall be solely responsible for the development, operation and maintenance of User's Web site, online store and electronic commerce activities, for all products and services offered by User or appearing online and for all contents and materials appearing online or on User's products, including, without limitation the accuracy and appropriateness of the User Content and content and material appearing in its store or on its products, ensuring that the User Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and ensuring that the User Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. User shall be solely responsible for accepting, processing and filling User orders and for handling User inquiries or complaints. User shall be solely responsible for the payment or satisfaction of any and all taxes associated with its Web site and online store.
User grants WebAura the right to reproduce, copy, use and distribute all and any portion of the User Content to the extent needed to provide and operate the Services
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your agent, and transactions entered into by anyone who uses Your account, whether or not the transactions were on Your behalf.
FOR MASSACHUSETTS RESIDENTS ONLY: User (a) shall at all times be solely responsible for and maintain the confidentiality of personal information of user's in accordance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, 201 CMR 17.00: Standards for the Protection of Personal Information of Residents of the Commonwealth (the "MA Regulation") and (b) maintain appropriate security measures that are in compliance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, the MA Regulation. For the purposes of this section [5.e ], "personal information" means information about an identifiable individual, including the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) Social Security or social insurance number or similar identifier; (ii) driver's license number/state/province-issued identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
FOR CUSTOMERS OTHER THAN MASSACHUSETTS RESIDENTS: User (a) shall at all times be solely responsible for and maintain the confidentiality of personal information of User's customers in accordance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, 201 CMR 17.00: Standards for the Protection of Personal Information of Residents of the Commonwealth (the "MA Regulation") and (b) maintain appropriate security measures that are in compliance with laws and regulations applicable to User and its customers, including, with respect to Massachusetts residents, the MA Regulation. For the purposes of this section [5.f ], "personal information" means information about an identifiable individual, including the first and last name or first initial and last name of an individual together with one or more of the following relating to such individual: (i) Social Security or social insurance number or similar identifier; (ii) driver's license number/state/province-issued identification number; or (iii) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to the account.
digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the User Content; and
make archival or back-up copies of the User Content and the User Web site.
Except for the rights expressly granted above, WebAura is not acquiring any right, title or interest in or to the User Content, all of which shall remain solely with User.
WebAura, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, User Content and/or Web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. User further agrees that WebAura shall not be liable to User for any loss or damages that may result from such conduct.
WebAura Content. Except for User Content, all content available through the Services including without limitation any site builder tools, website templates, themes, designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively, "WebAura Content"), are the proprietary property of WebAura or its licensors. No WebAura Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted by WebAura. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any WebAura Content. Any use of the WebAura Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to use of the Services and the WebAura Content granted herein. All rights of WebAura or its licensors that are not expressly granted in this Agreement are reserved to WebAura and its licensors.
Licenses, Copyright Notices and Photo Credits. Any permitted use of WebAura Content is subject to the terms of any applicable license. Users shall not remove any copyright notices or photo credits appearing on any WebAura Content that Users have been granted the right to use. Any violation of this section will be deemed a breach of this Agreement.
Internet Protocol (IP) Address Ownership. If WebAura assigns User an Internet Protocol ("IP") address for User's use, the right to use that IP address shall belong only to WebAura, and User shall have no right to use that IP address except as permitted by WebAura in its sole and absolute discretion in connection with the Services, during the term of this Agreement. WebAura shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to User by WebAura, and WebAura reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Caching. User expressly grants to WebAura a license to cache the entirety of the User Content and User's Web site, including content supplied by third parties, hosted by WebAura under this Agreement and agrees that such caching is not an infringement of any of User's intellectual property rights or any third party's intellectual property rights.
CPU Usage. User agrees that User shall not use excessive amounts of CPU processing on any of WebAura's servers. Any violation of this policy may result in corrective action by WebAura, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in WebAura's sole and absolute discretion. If WebAura takes any corrective action under this section, User shall not be entitled to a refund of any fees paid in advance prior to such action.
Bandwidth and Disk Usage. WebAura provides Users with bandwidth, disk space and other
resources, such as e-mail and/or file-transfer-protocol ("FTP") accounts, the amount of which is defined in WebAura's web pages describing the package of Services purchased at the time of purchase. In some cases, WebAura may not establish a specific amount of bandwidth, disk space and other resources, and refer to that as "Unlimited". In all cases, the Services are intended for normal use only, and any activity that results in excessive usage that is inconsistent with normal usage patterns is strictly prohibited. WebAura reserves the right to suspend, discontinue or delete the accounts of Users whose use of disk space, bandwidth or other resources results in or presents the risk of degradation of service to other customers, regardless of the amount of disk space, bandwidth or other resources included in the User's plan. User agrees that such usage shall not exceed the amounts set by WebAura for the Services purchased (the "Agreed Usage") and is additionally subject to normal usage guidelines established by WebAura as in effect from time to time. These allotments are optimized and dedicated towards serving the Content and User's active electronic mail services related solely to User's web hosting account(s) with WebAura.
Hosting space is intended for normal use only, and is limited to Web files, active e-mail and content of the hosted Web sites, not for storage (whether of media, e-mails, or other data). Hosting space further may not be used as offsite storage of electronic files, electronic mail or FTP hosts. You are responsible for removing any files, e-mails or other data which do not meet these requirements, and for adhering to any usage requirements or limits allocated to your account(s). Failure to do so may result in removal and deletion of such materials (including without limitation files and e-mails), and/or in discontinuation of your services or account, which actions we may take in our sole discretion.
WebAura will monitor User's use of bandwidth, disk usage and other resources. WebAura, in its sole discretion, shall have the right to take any corrective action if User's utilization of bandwidth, disk usage or other resources exceeds the Agreed Usage, normal usage, or is used for other improper storage or usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, removal or deletion of User's Web site, User Content, User's electronic mail and e-mail services and/or other materials and services or termination the User's account and of this Agreement, which actions may be taken in WebAura's sole and absolute discretion.
If WebAura takes any such corrective action under this section, User shall not be entitled to a refund or credit of any fees paid prior to such action. User will comply with all applicable laws, rules and regulations regarding User's Web site, User Content and/or User's electronic mail services, including use of bandwidth, disk usage and other resources and will use such services and resources only for lawful purposes. User may not utilize: the Services to copy material from third parties (including text, graphics, music, videos or other copyrightable material) without proper authorization; the Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party; the Services to traffic in illegal drugs, gambling, obscene materials or any other products or services that are prohibited under applicable law; the Services to export encryption software to points outside the United States (or, if User is outside the United States, to points outside the User's national jurisdiction) in violation of applicable export control laws; the Services to forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message. If WebAura learns or discovers that User is violating any law related to User's Web site, User Content and/or User's electronic mail services, use of bandwidth, disk usage or other resources or Agreed Usage, WebAura may be obligated to or may in its discretion inform the necessary law enforcement and/or any related agency(ies) of such conduct and may provide such agency(ies) with information related to User, User's Web site, User Content and/or User's electronic mail.
User is responsible for complying with any usage requirements or limits for bandwidth, disk space or other resources, and monitoring such usage to ensure the Web site does not violate such requirements or exceed any such limits allocated for the account(s) and otherwise complies with this Agreement. WebAura will use commercially reasonable efforts to e-mail Users who are at or near their utilization limits, but WebAura does not take responsibility if e-mail notification(s) is not received by the User. WebAura reserves the right to discontinue service through the beginning of the next month for your account in the event that it exceeds the any such allotment.
Parked Domain Services. In addition to the applicable terms and conditions contained herein: If User signs up to register and park a domain name with WebAura, All domain name renewal fees are due at time of invoice, before the renewal date of the domain name. Payments are non-refundable. If for any reason WebAura is unable to charge User's payment method for the full amount owed WebAura for the service provided, or if WebAura is charged a penalty for any fee it previously charged to Your payment method, User agrees that WebAura may pursue all available remedies in order to obtain payment. User agrees that among the remedies WebAura may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to User of User's service. WebAura reserves the right to charge a reasonable service fee for administrative tasks outside the scope of its regular services. These include, but are not limited to, User service issues that cannot be handled over e-mail but require personal service, and disputes that require legal services. These charges will be billed to the payment method we have on file for User.
User agrees to be responsible for notifying WebAura should User desire to terminate use of any of the Parked Page Services, including, but not limited to, those purchased. Notification of User's intent to terminate must be provided to WebAura no earlier than thirty (30) days prior to User's billing date but no later than ten (10) days prior to the billing date. In the absence of notification from User, WebAura will automatically continue the Parked Page Services indefinitely and will charge User's payment method that is on file with WebAura, at WebAura's then current rates. It is User's responsibility to keep their payment method information current, which includes the expiration date if using a credit card. In the event User terminates the Parked Page Services, moving their Web site off of the WebAura hosting servers is User's responsibility. WebAura will not transfer or FTP such Web site to another provider. Any change by User of their name-server is not deemed cancellation of the Parked Page Services.
WebAura will provide User with the Parked Page Services as long as User abides by the terms and conditions set forth herein and in each of WebAura's policies and procedures.
By using any of the Parked Pages Services, User agrees that WebAura may point the domain name or DNS to one of WebAura's or WebAura's affiliates web pages, and that they may place advertising on User's web page and that WebAura specifically reserves this right. User shall have no right to any compensation and shall not be entitled and shall have no right to receive any funds related to the monetization of User's Parked Pages.
User agrees to indemnify and hold harmless WebAura for any complications arising out of use of the Parked Page Services, including, but not limited to, actions WebAura chooses to take to remedy User's improper or illegal use of a Web site hosted by WebAura. User agrees it is not be entitled to a refund of any fees paid to WebAura if, for any reason, WebAura takes corrective action with respect to any improper or illegal use of the Parked Page Services.
If a dispute arises as a result of one or more of User's Parked Pages, User will indemnify, defend and hold WebAura harmless for damages arising out of such dispute. User also agrees that if WebAura is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Web site hosted by WebAura, that WebAura, in its sole discretion, may take whatever action WebAura deems necessary regarding further modification, assignment of and/or control of the Web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
Standard and Private-Label Reseller Programs. In addition to all terms and conditions described in this Agreement, the following shall also be applicable to WebAura Wholesale, Wholesale Plus and Private-Label Resellers;
The Reseller agrees, on behalf of both the Reseller and each User signed up by the Reseller, to comply with these Terms of Service.
- In the event that a Reseller or a Reseller's User is determined to be in violation of the Terms of Service, the Reseller shall, upon receipt of notice of the violation, take prompt action to ensure that the account in question is updated to be in full compliance with the Terms of Service.
- WebAura is not responsible for the actions or misrepresentations of Resellers. The Reseller hereby agrees to indemnify WebAura from and against any and all claims made by any User that result from the Reseller's misrepresentation, breach of the Terms of Service or other improper actions by the Reseller.
- WebAura reserves the right to revise its Wholesale, Wholesale Plus and Private-Label Reseller Programs, AUP and the Terms of Service at any time. Changes shall take effect when posted online or on any subsequent date as may be set forth in any required notice provided by us in connection therewith.
- Users who have been signed up by Resellers agree to operate their Web sites in accordance with the Terms of Service.
- Resellers cannot make any modifications to the WebAura Terms of Service. Any such alterations shall be deemed a violation of the Terms of Service and could result in a cancellation of a Reseller's account(s). WebAura is not responsible for any modifications made to the Terms of Service by Resellers.
- Resellers in the Wholesale Reseller Program assume all responsibility for billing and technical support for each of their Users. WebAura reserves the right to refuse inquiries made to the Support Team from the Customers of Resellers in the Wholesale Reseller Program.
Obligations of Resellers of Domain Registrar Services. If you are a Reseller of Domain Registrar Services, these Terms of Service, including without limitation the following provisions, constitute the agreement by which you would provide Registrar Services ("Registrar Reseller"):
Registrar Reseller agrees to comply with any and all policies, terms and conditions of WebAura, or such other lease agreement as WebAura shall post on their website from time to time, but only those portions that are applicable to all registrars, including, but not limited to, those that will prohibit the registration of certain domain names (those not allowed to be registered by statute or regulation).
Virtual Private Servers (VPS). VPS sometimes also referred to as Virtual Dedicated Server. When creating a VPS account, we split dedicated servers into independent areas, referred to as containers. The customer is responsible for providing the firewalls, software, web files, content and Operating systems for the customer's container, independent of other containers on the server. Each container is allotted its own disk space, CPU power, bandwidth, and memory. This isolation of server space allows for independent server customization for which the customer is responsible
VPS is different from shared hosting, and VPS customers should be technically advanced and prepared to use and operate a server, various Operating Systems, Linux and root access.
- In addition to all terms and conditions described in this Agreement, the following shall also be applicable to WebAura VPS customers;
- The Customer assumes all responsibility for installation and maintenance of the Operating System (OS) used within the customer's container, as well as any reinstalls and changes.
- Customer assumes all responsibility for their VPS environment, firewalls, protections from bugs, viruses or other intrusions, content applications and resources used.
- Customer agrees to take full responsibility for installation, storage, back-up, maintenance, and other aspects of its files, software, data and other content or items transferred to or used in the container and the VPS account.
- The Customer is solely responsible for all files contained in their VPS whether the Customer had knowledge of the files or not and for assuring that the container is used and operated in compliance with this Agreement.
- It is the responsibility of the customer to ensure their system is secured and safe from compromise at all time. If a container is found to be compromised or in violation of this Agreement, WebAura has the right to suspend and terminate service immediately.
- Resource Usage Limits. Misuse of system resources, including but not limited to, employing programs that consume excessive CPU time (outside of reserved for user's container), network capacity, disk IO or storage space, may result in account suspension and termination.
- Mail Policy. VPS accounts will be governed by our shared-hosting mail policy (See Acceptable Use Policy section 4.a). Furthermore, anyone hosting websites or services on their server or container that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server immediately removed from our network.
- Third-Party Software. In the event You elect to install any third-party software, the following terms shall apply;
i. You represent and warrant You have the right to use and install the third-party software.
- You have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity.
- You agree to defend, indemnify and hold harmless WebAura and its employees, officers and directors for, from and against any and all claims brought against WebAura and its employees, officers and directors by a third-party alleging the software infringes:
- the third-party's rights; or
- a third party's patent, trademark, copyright or other intellectual property right. You agree that in such an event You shall pay all resulting costs, damages, expenses and reasonable attorneys' fees that a court awards and settlements incurred by WebAura in connection with any such claims.
Disclaimer of Warranty. User agrees to use all Services and any information obtained through or from WebAura, at User's own risk. User acknowledges and agrees that WebAura exercises no control over, and accepts no responsibility for, the content of the information passing through WebAura'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 WE NOR ANY OF OUR PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, A "RELATED PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT WE PROVIDE. NO RELATED PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED 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. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USER OR STORED BY USER OR ANY OF USER'S USERS VIA THE SERVICES PROVIDED BY US NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY RELATED PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
Limited Warranty. WebAura represents and warrants to User that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by WebAura generally to its other Users for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. User will be deemed to have accepted such Services unless User notifies WebAura, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. User's sole and exclusive remedy, and WebAura's sole obligation, for breach of the foregoing warranties shall be for WebAura, at its option, to re-perform the defective Services at no cost to User, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue User a credit in an amount equal to the current monthly service fees pro rated by the number of hours in which the Services have been interrupted. WebAura may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of WebAura's reasonable control; (b) that resulted from any actions or inactions of User or any third parties; or (c) that resulted from User's equipment or any third-party equipment not within the sole control of WebAura. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WE HEREBY EXPRESSLY DISCLAIM THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY PRODUCT OR SERVICE PROVIDED TO USER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability.
IN NO EVENT WILL OUR LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO US BY YOU DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
WE CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. WE WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other Terms of Service theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 18 shall not apply to User's indemnification obligations.
Notwithstanding anything to the contrary in this Agreement, WebAura's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by User for the Services which gave rise to such damages, losses and causes of actions during the 3-month period prior to the date the damage or loss occurred or the cause of action arose.
User understands, acknowledges and agrees that if WebAura takes any corrective action under this Agreement because of an action of User or one if its Users or a reseller, that corrective action may adversely affect other Users of User or other reseller Users, and User agrees that WebAura shall have no liability to User, any of its Users or any Reseller User due to such corrective action by WebAura.
This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
Indemnification. User agrees to indemnify, defend and hold harmless WebAura and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys 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 User's use of the Services, (ii) any violation by User of the AUP, (iii) any breach of any representation, warranty or covenant of User contained in this Agreement or (iv) any acts or omissions of User. The terms of this section shall survive any termination of this Agreement.
Waiver of Jury Trial Both You and WebAura hereby agree to waive all respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement.
The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims.
You and WebAura each acknowledge that the waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings.
Each party further warrants and represents that each has had the opportunity to have counsel review this Agreement and this waiver.
The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement. In the event of litigation, this Agreement may be filed as written consent to a trial by court.
Independent Contractor. WebAura and User are independent contractors and nothing contained in this Agreement places WebAura and User in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Wisconsin. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this agreement must be brought in a state or federal court located in Brown County, Wisconsin. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Headings. The headings herein are for convenience only and are not part of this Agreement.
Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of User or WebAura, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of User and WebAura. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by WebAura in its sole discretion, which modifications will be effective when posting to WebAura's Web site or on any subsequent date as may be set forth in any required notice provided by us in connection therewith. Upon renewal of any services or products, User agrees to all Terms of Service in effect on date of renewal and any amendments which take effect pursuant to the terms hereof.
Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. WebAura may give written notice to User via electronic mail to the User's electronic mail address as maintained in WebAura's billing records.
Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
Assignment; Successors. User may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of WebAura. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. WebAura may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of User. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, WebAura's records of such execution shall be presumed accurate unless proven otherwise.
Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) 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, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, Terms of Service or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, User acknowledges and agrees that any supplier of third-party product or service that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against User as if it were a party to this Agreement.
Jurisdiction and Venue. For the purposes of establishing jurisdiction, this User Agreement shall be deemed to have been made, executed, and performed in Brown County, Wisconsin, and it shall be governed by the laws of the State of Wisconsin. Proper venue for any cause of action or controversy arising out of the terms of this User Agreement shall be established in Brown County, Wisconsin or the United States District Court for the Eastern District of the State of Wisconsin.
Government Regulations. User may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States (or, if User is outside of the United States, to anyone outside of User's national jurisdiction) in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction User operates or does business.
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