1. Acceptance of Terms
This is a legal agreement ("Agreement") between you, the user, together with any company or other business entity you are representing, if any (collectively, the "Member") and SiteCube.com. ("SiteCube"). This Agreement governs the access and use of all products and services, including but not limited to SiteCube Web Sites, for which Member registers and which are provided by or through any web site or co-branded web site owned or controlled by SiteCube, or any successor web sites (collectively, the "Service"). IF MEMBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PURCHASE, USE OR ACCESS THE SERVICE.
The Service is offered to Member conditioned upon Member's acceptance without modification of this Agreement. Member acknowledges that, from time to time, it may be necessary for SiteCube to update or revise certain provisions of the Agreement. By signing up for any SiteCube Service and accepting this Agreement, Member agrees that SiteCube may change the terms of the Agreement in its sole discretion without specific notice to Member. If Member does not agree to the changes proposed by SiteCube, or to any terms in this Agreement, Member's sole and exclusive remedy is to cancel Member's SiteCube Service ("Member's Account"). Notwithstanding the foregoing, SiteCube reserves the right to cancel, suspend or refuse access to the Service to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Agreement.
2. General Use of the Service
Member shall not use the Service, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. Member agrees that Member will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other Web site or product, transfer, or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Service other than for use as contemplated in any Service, including but not limited to the creation or operation of Member created Web sites, (collectively, "Member Site")in accordance with this Agreement. This means, among other activities, that Member agrees not to engage in the practices of "screen scraping", "database scraping", or any other activity with the purpose of obtaining lists of users or other information. Member agrees that Member will not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party's use and enjoyment of the Service. Member may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service. Except with the written permission of SiteCube, Member agrees that Member will not access or attempt to access password protected, secure or non-public areas of the Service. If Member attempts to access prohibited areas of the Service, Member may be subject to prosecution.
3. Charges Billing and Advertisements
SiteCube reserves the right to charge fees for the Service or any portion thereof and any applicable fees will be posted on the SiteCube Web Site. If Member is required to pay a fee for all or any part of the Service for which Member has chosen to register. Member hereby authorizes SiteCube to charge Member's valid and current credit or debit card in advance for all applicable fees incurred by Member in connection with Member's chosen Service and Member's Account. Member's Service and Account will automatically renew at the end of each subscription period, unless the Service or Member Account is terminated in advance of the end of the then-current term. If there are any annual, monthly or similar periodic subscription fees associated with the Member Account, these fees will be billed automatically to the Member's designated valid and current credit or debit card at the start of each renewal period, unless Member terminates the Service before the relevant period begins. If Member registered for the Service using a SiteCube promotional code or discount, after the initial promotional period expires, Member's subscription (base package and any purchased upgrades) will automatically be renewed and billing will continue at the then-current prices for the Service. Member further acknowledges that it is Member's responsibility to notify SiteCube of any changes to Member's credit card and to update Member's credit card number if Member's credit card has expired otherwise Member's access to the Service may be disconnected or interrupted. All fees shall be paid in U.S. dollars. SiteCube shall consider ownership of an account and its constituent site(s) to be the identity of the person providing payment; or for free trial sites, the identity of the person registered for the trial period.
SiteCube reserves the right to change any fees (which includes but is not limited to, increasing prices and charging a fee for upgrades and/or a Service for which SiteCube does not currently charge a fee) at any time, provided, however, that SiteCube will provide Member with reasonable notice prior to making any fee changes. In addition, SiteCube will also give Member reasonable notice before any modification to the Service that could adversely impact Member's Site(s). If Member finds any change to the Service to be unacceptable, Member is free to cancel any part of the Service or Member's Account at any time, but SiteCube will not refund any remaining portion of Member's pre-paid fees when Member cancels any part of the Service or Member's Account and Member may be charged a cancellation fee.
If Member has registered for a trial of a Service ("Trial Period"), Member will have the entire Trial Period within which to purchase the Service Member is using in order to retain any Member Content (as defined below) that is on the Member Site(s) that Member built during the Trial Period. If Member has not purchased the Service by the end of the Trial Period, all of the Member Content will be deleted. SiteCube is not responsible for any damages to Member in the event Member decide not to purchase the Service and SiteCube deletes the Member Content after the Trial Period expires.
SiteCube may show advertisements on any portion of the Service which it provides to Members free of charge, excluding limited timed free trial accounts. Please see section nine (9) of this Agreement for more information regarding third party advertising content.
4. SiteCube Support Services
General Support Services
SiteCube offers email and phone support services. Members in good standing may submit an unlimited amount of support related questions or concerns by email through SiteCube's on-line customer support, available on the SiteCube website. In the event that a customer is eligible for telephone support at no additional charge, such support service is limited to technical questions only. Questions related to, but not limited to, design, search engine optimization, marketing planning or similar services shall not be included in the phone support services offered at no additional charge.
Members may utilize phone support services at no additional charge for the duration of their membership period.
In order for Member to participate in the Service, SiteCube will require Member to provide specific information about Member and/or and Member's business. If Member chooses to become a customer, Member agrees to provide true, accurate and complete information and to refrain from impersonating or falsely representing Member's affiliation with any person or entity. Member shall maintain a valid email address at a all times. Member shall be responsible for maintaining the confidentiality of Member's Account and password and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such account and password. Member shall be responsible for all actions by such users, including without limitation former employees and former partners, and shall indemnify SiteCube for such actions as set forth in Section
6. Member Account Limitations
Member hereby acknowledges that SiteCube may, from time to time, establish general practices and limits concerning the use of the Service, including without limitation, (a) the maximum number of days that email messages, guest book entries, discussion board postings or other content posted on the Member Web Site will be retained by SiteCube, (b) maximum limits on bandwidth usage that will be allotted to Member, (c) maximum limits on storage space, (d) the maximum number of Web sites per Member Account, (e) maximum number of photographs or other data according to the type of Member Account, (f) maximum limits on the number of pages within each Member Web Site, and (g) maximum time limitations for the retention of Member Content following a Trial Period or account cancellation. SiteCube further reserves the right to delete at any time without prior notice duplicate images uploaded for printing. Any of the foregoing limits will be consistent with the Service (including any upgrades) for which Member has registered. Member agrees that SiteCube has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Service. Member further acknowledges and agrees that SiteCube reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
7. Member Account Limitations
Member's right to use the Service is personal to Member and Member's company and its employees (if applicable). Member, and not SiteCube, is entirely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Member Content") posted via the Service. Member, and not SiteCube, is also responsible for compliance with all laws, regulations and ordinances connected with all aspects of Member's use of the Service. Member shall not use the Service for any illegal purpose in violation of any local, state, federal or international law. Member must provide all required and appropriate warnings, information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate actions (collectively, "Information and Actions") in connection with Member's use of the Service. If the Service does not provide adequate facility or features for Member to provide such Information and Actions, then Member shall not use the Service.
SiteCube does not control or monitor the Member Content posted via the Service and as such, does not guarantee the accuracy, integrity or quality of such content. SiteCube reserves the right, but is not obligated to review the Member Content posted via the Service and to refuse or remove any such materials in its sole discretion, without notice at any time. SiteCube also reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or remove any information or materials, in whole or in part, from the Member Content in SiteCube's sole discretion. With respect to the content on the Member Web Site, Member agrees not to:
post, upload or otherwise transmit any content which is misleading to others or impersonate any person or entity or falsely state or otherwise misrepresent Member's affiliation with a person or entity to others, including, but not limited to, consumers;
post, upload or otherwise transmit any content that is pornographic, adult oriented, threatening, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another's privacy, hateful, or racially and ethnically objectionable;
post, upload or otherwise transmit any content that Member does not have a right to post and transmit under any law or under contractual or fiduciary relationships (such as information learned or disclosed as part of employment relationships or under nondisclosure agreements);
post, upload or otherwise transmit any content, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary rights of any party;
post, upload or otherwise transmit any materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment and/or attempt to access the accounts of others, or attempt to penetrate security measures of SiteCube, its vendors or suppliers or other entities' systems ("hacking"), whether or not the intrusion results in corruption or loss of data;
post, upload or otherwise transmit any materials that impose an unreasonable or disproportionately large load on SiteCube's infrastructure that exceed the limits provided by the Service for which Member registered;
post, upload or transmit any unsolicited or unauthorized advertising, promotional materials, "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities Exchange Commission, any rules of 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;
forge any headers or other manipulation of identifiers in order to disguise the origin of any content transmitted through the Service;
promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or
sell, distribute, disseminate or link to any sites for marketing, sales, distribution of: firearms, explosives, ammunition, tobacco products and any other products or services that (i) Member cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via the Member Web Site could cause SiteCube to violate any law, statute or regulation.
post or disclose any personal or private information or images about children or any third party without their consent (or a parent's consent in the case of a minor).
SiteCube may terminate Member's account for failure to comply with the above listed rules of Member Conduct. Additionally, SiteCube may request Member to place all or any portion of the Member Content behind password protection if SiteCube determines that such content is inappropriate for the community at large but does not otherwise violate the terms of this Agreement. If SiteCube has requested Member to place Member Content behind password protection or if Member independently determines that the Member Content appropriately belongs behind password protection, Member may not publish the password in such a way that negates the limited-access nature of the password protected site. If SiteCube requests Member to place any Member Content behind password protection and Member fails to do so promptly, SiteCube reserves the right to terminate Member's Account.
8. Third Party Content
For Member's convenience, the Service may contain products, services, content and information from third party providers (which includes advertisers and affiliates) and/or links to their Web sites ("Third Party Content"). Such Third Party Content is not under the control of SiteCube and SiteCube is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. SiteCube is under no obligation, but does reserve the right to pre-screen Third Part Content available on the Service and does not assume any responsibility or liability for the content provided by others. SiteCube is providing such Third Party Content to Member only as a convenience, and the inclusion of such content does not imply endorsement by SiteCube of such content or the affiliate or advertiser. Member may be subject to additional and/or different terms, conditions, and privacy policies when using third party products, services, content, software, or sites. SiteCube does reserve the right to remove content that, in SiteCube's judgment, does not meet its standards, but SiteCube is not responsible for any failure or delay in removing such material.
SiteCube is not and will not be responsible for (i) the terms and conditions of any transaction between Member and any third party, (ii) any insufficiency of or problems with any such third party's background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that Member has a dispute with any such third party, Member releases SiteCube (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
9. DISCLAIMER OF WARRANTIES.
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT: (A) MEMBER'S USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. SiteCube AND ITS SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND THE MEMBER SITE(S) "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(B) SiteCube AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY MEMBER THROUGH THE SERVICE WILL MEET MEMBER'S EXPECTATIONS.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, OR MEMBER SITES IS DONE AT MEMBER'S OWN DISCRETION AND RISK, AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL SiteCube AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF SiteCube OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION WITH
(A) THE USE OR INABILITY TO USE THE SERVICE,
(B) THE PROVISION OF OR FAILURE TO PROVIDE SERVICES,
(C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE,
(D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR
(E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO MEMBER. IN NO EVENT
SHALL SiteCube'S AGGREGATE LIABILITY TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT MEMBER ACTUALLY PAYS TO TrendyFlash UNDER THIS AGREEMENT DURING THE TWELVE(12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $500.00, WHICHEVER IS LESS.
Without limiting the foregoing, neither SiteCube nor its suppliers is responsible for any of Member's data residing on the Service or SiteCube's suppliers' hardware. Member is responsible for backing-up Member's data and information that may reside on the Service or SiteCube's suppliers' hardware, whether or not such information is produced through the use of the Service. It is Member's responsibility to take the necessary steps to ensure that Member's primary means of business is maintained (if applicable).
11. Additional Representations and Warranties.
You represent, warrant, and covenant that (a) you have the power and authority to enter into this Agreement; (b) you are at least eighteen (18) years of age; and, (c) you will only use the SiteCube Sites in accordance with these Terms of Service.
You further represent that you are and will at all times be, in full compliance with all applicable laws, regulations, rules and ordinances (collectively, "Laws") regarding your business, the sale and use of the Products, and as otherwise related to this Agreement and Customer's performance hereunder;
12. Proprietary Rights to Member Content
SiteCube does not claim ownership of the Member Content that Member provides to SiteCube and/or places on the Member Site. However, Member grants SiteCube a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Member Content on and through the Service and in SiteCube's promotional or advertising materials (only for the limited purpose of promoting the Service), and (ii) sublicense to third parties such Member Content to the extent necessary for the creation and maintenance of, in part or in whole, such Web sites. No compensation will be paid or due Member with respect to SiteCube's or its sublicensee's use of the materials as licensed above. By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through any Member Site, Member warrants and represents that Member owns or otherwise controls the rights necessary to do so and to grant SiteCube the license set forth above, and, pursuant to the terms set forth in Section 14, Member will defend and indemnify SiteCube and its suppliers from any third party claim related to a breach of any of the foregoing representations and warranties.
13. SiteCube Proprietary Rights/Software Licenses
Member acknowledges and hereby agrees that the Service and any software used in connection with the Service (the "Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Member further acknowledges and agrees that content contained in sponsor advertisements or information presented to Member through the Service, advertisers and/or Discussion Boards is protected by applicable copyrights, trademarks, service marks, patents and other proprietary rights and laws.
SiteCube provides Member with a non-exclusive, non-transferable, limited license to use the Software, which Member agrees to use in accordance with this Agreement. Member may not sub-license or charge others to use or access the Software without first obtaining written permission or a written agreement from SiteCube. The Software is owned by SiteCube and/or its suppliers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification, creation of derivative works from or redistribution of the Software is expressly prohibited, and may result in severe civil and criminal penalties. The Software, its structure, sequence and organization and source code are considered trade secrets of SiteCube and its suppliers and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. MEMBER MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
Member agrees to indemnify and hold SiteCube and its suppliers, affiliates, partners, subsidiaries and employees (collectively, the "Indemnified Parties") harmless from any and all claims and demands, losses, liability costs and expenses (including, but not limited to, reasonable attorneys' fees), incurred by an Indemnified Party arising out of or related to (i) Member's breach of this Agreement; (ii) any information (including but not limited to Member Content and Member's publicly posted information) submitted, posted, or otherwise provided by Member at the Member Site and/or to SiteCube and/or its affiliates; (iii) any dispute or litigation between an Indemnified Party and a third party caused by Member's actions; and (iv) Member's negligence or violation or alleged violations of any rights of another; (v) any third party claim against the Indemnified Party for: (1) personal injury or property damage to the extent such Liabilities arise out of or result from the negligence or other tortuous conduct of Customer; or (2) the breach of any representation or warranty made by Customer; or (3) any claim by a customer of Customer against any Indemnified Party to the extent such Liabilities arise out of or result from Customer's business dealings with such Customer, including, without limitation the provision of any products or services to such Customer. These obligations will survive any termination of Member's relationship with SiteCube or Member's use of the Service. To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of SiteCube and/or its suppliers, affiliates, partners, subsidiaries and employees.
15. Copyright and Trademark Notices
All materials of the Service and the Software (as well as the organization and layout of the Service are owned and copyrighted or licensed by SiteCube, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials of the Service, which includes the SiteCube (and any successor Web sites or additional Web sites or any co-branded Web sites), and/or the Software, is permitted without the written permission of SiteCube. Any rights not expressly granted herein are reserved.
SiteCube, sitecube.com, the SiteCube logo, , SiteCube Site Builder, and other SiteCube logos and product and service names are trademarks of SiteCube.com. (the "SiteCube Marks"). Member agrees not to display or use the SiteCube Marks in any manner whatsoever without SiteCube's prior permission. From time to time SiteCube may offer a limited license to Members to display SiteCube award logos or other symbols of merit on Member Web Sites after SiteCube in its sole discretion confers such distinctions to the applicable Members. However, SiteCube reserves the right to withdraw such logos or symbols and delete them in its sole discretion for any reason.
16. Notification of Claims of Copyright Infringement
Any notifications of claimed copyright infringement should be sent to SiteCube. Please see SiteCube's Copyright Policy at SiteCube's Copyright Policy for more information.
17. Modification of the Service
SiteCube reserves the right, at its sole discretion, to, at any time, modify, or discontinue the Service, temporarily or permanently, (or any part thereof), including the imposition of limits on certain features and services or restriction of access to parts or all of the Service, with or without notice. Member agrees that SiteCube shall not be liable to Member or to any third party for any modification, suspension or discontinuance of the Service. Member further agrees that SiteCube shall have the right to remove any feature from the Member Site, with or without notice to Member, at any time at SiteCube's sole discretion, if SiteCube discontinues offering the feature for any reason. If Member does not agree to any such modifications, Member's sole and exclusive remedy is to cancel Member's Account.
18. Termination/Cancellation of Member Account
Either Member or SiteCube may terminate or cancel Member's Account (or any part of the Service) at any time, but SiteCube will not refund any pre-paid fees upon such termination or cancellation.
Termination by Member. Member may cancel your Member Account or any part of the Service at any time. ; or, at SiteCube's sole discretion, on a case by case basis, by submitting a cancellation form. Member will receive a cancellation confirmation via email after SiteCube processes Member's cancellation request. SiteCube reserves the right to collect fees, surcharges or costs incurred before Member cancels Member's Account in addition to the applicable cancellation fee(s).
Member must provide us with the following information in order for us to process the cancellation:
• The exact name of the Service that Member would like to cancel
• Member's username and password
• Member's email address
• Member's reason for canceling the Service
b) Termination by SiteCube. SiteCube may terminate Member's Service or Member's Account if SiteCube determines, in SiteCube's sole discretion, to discontinue offering the Service. Additionally, SiteCube, in its sole discretion, may terminate Member's Site, Member's Account or Member's use of the Service for any reason, including, without limitation, (i) if Member breaches this Agreement, (ii) if SiteCube is unable to verify or authenticate any information that Member provides to SiteCube, or (iii) if SiteCube believes that Member has violated or acted inconsistently with the spirit of this Agreement. If SiteCube terminates Member's Account pursuant to (i), (ii) or (iii) above, Member will forfeit all credits, pre-paid fees, and any other amounts accruing to Member, if any, and SiteCube shall not be required to refund, redeem, or pay amounts to Member upon such termination.
c) Effect of Termination. Upon termination of Member's Account for any reason, SiteCube reserves the right to (a) collect all charges, fees, commitments and obligations incurred or accrued by Member; (b) delete any Member Content, listings, messages or other information in connection with Member's Account; (c) prohibit Member's access to Member's Account, including without limitation by deactivating Member's password; and (d) refuse Member future access to the Service. In no event shall SiteCube be required to refund, redeem, or pay amounts to Member upon termination of Service or return any Member Content.
Products, and as otherwise related to this Agreement and Customer's performance hereunder;
Statements, notices and other communications to Member may be made by mail, email, postings within Member's account or other reasonable means. Member shall be solely responsible for updating the account's registered email and postal address. SiteCube shall not be responsible for any undelivered notices caused by Member's failure to update the account information. SiteCube may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices generally on the SiteCube Web Site. Member should refer to the Member Support page of the Service for information on how to contact and/or provide notice to SiteCube.
20. Arbitration/ Jurisdiction
Member agrees that any dispute or claim arising out of or related to the Service or this Agreement, or the interpretation, making, performance, breach or termination thereof, shall be finally settled by binding arbitration by one arbitrator appointed in accordance with said Rules. The proceedings shall be conducted and all evidence shall be offered in the English language. Member agrees that any claim against SiteCube must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be barred forever.
Notwithstanding the above, SiteCube may apply to any court of competent jurisdiction (i) for a temporary restraining order, preliminary injunction or other interim or conservatory relief as necessary, including without limitation for breach of Section 13 (SiteCube Proprietary Rights/Software License) or (ii) to collect fees due and owing from Member pursuant to this Agreement, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator.
A printed version of this Agreement shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. SiteCube's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Member shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without prior written approval of SiteCube, and any such attempted assignment shall be void. SiteCube shall have the right to freely assign this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent or notice of Member. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and permitted assigns. This Agreement sets forth the entire understanding and agreement between SiteCube and Member with respect to the subject matter hereof. The section and subsection titles in the Agreement are for convenience only and have no legal or contractual effect. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures.
Please report any violations of this Agreement to our Member Violation Report form.
23. Independent Review
MEMBER ACKNOWLEDGES THAT MEMBER HAS READ THIS AGREEMENT AND ALL RELATED SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT MEMBER AGREES TO ALL ITS TERMS AND CONDITIONS. MEMBER HAS INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
Service-Specific Terms: The following terms apply in addition to paragraphs 1-26 if Member has purchased a Service package which includes the particular service described. SiteCube may change service providers or stop providing the following services at any time without notice to Member; and Member shall permit SiteCube to act as its agent with respect to the following services:
24. Internet Domain Names
SiteCube has chosen independent Third Party Domain Name Vendors ("TPDNVs") who are ICANN accredited registrars, to provide domain name registration services. Member hereby authorizes SiteCube if requested, to transfer in or acquire Member's selected domain name from TPDNVs. In order to receive a domain name, Member must agree and remain agreeable through the use of the Domain Name, to the TPDNVs' terms of service which the TPDNVs may change at any time in their sole discretion to the TPDNVs' terms of service. Member understands that Member is creating a separate contractual relationship between Member and the TPDNVs, and that Member, and not SiteCube, is responsible for all liability, and obligations in connection with that relationship.
If, after registering one or more domain names that are included with any SiteCube Service package, because of a customer's incorrect registration of a domain name or otherwise, member chooses to delete a previously registered domain name and subsequently register one or more additional different Domain Names, Customer will be charged the resulting Domain Name registration fees.
Member will be listed as the registrant and administrative contact in connection with Member's domain name; however, SiteCube may temporarily list itself as the registrant and administrative contact in the event that it changes to a different TPDNVs until the TPDNVs change is completed. Member hereby authorizes SiteCube to list itself as the billing contact, technical contact and name servers in connection with Member's domain name and to take any actions SiteCube deems appropriate in those capacities. However, upon termination of the Service, SiteCube will immediately cease acting in those capacities including switching registrars. After such time, SiteCube will not be responsible to forward any notices, emails or other correspondence to Member or to take any other actions in connection with Member's domain name. Additionally, in the event that a Member account is suspended by SiteCube for lack of payment or any other reason, SiteCube shall not renew any domain names that may become due for renewal during the suspension of the account. Member will be solely responsible for all ongoing fees, as well as removing SiteCube as the billing, technical contact and name servers in connection with Member's domain name.
Some SiteCube accounts may have Email services provided by an independent Third Party Email Services Vendor ("TPESV"). SiteCube is not responsible for the actions or inaction of the then current TPESV or the unavailability or malfunction of their network or services. SiteCube is not a party to, and shall not be involved in or responsible for, transactions, agreements, and/or disputes between Member and the TPESV ("TPESV Dispute"). In the event of a the TPESV Dispute, Member hereby releases SiteCube (and its officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes. By using email services, Member agrees to the terms and conditions contained in the "Acceptable Use Policy" and "Mass Mailing Policy" incorporated herein.
26. TrendyFlash Stores
By using SiteCube Store, Member agrees to the following additional terms and conditions:
Hosting Services. SiteCube grants Member the right to develop and operate a SiteCube Store on the Server, subject to and in accordance with the terms of this Agreement and such hosting policies, procedures and specifications as SiteCube may, by written notice to Member, establish from time to time (the "Hosting Policies and Procedures"). The Hosting Policies and Procedures, if any, are incorporated in this Agreement in their entirety.
Prohibited Uses. In addition to all restrictions set forth above, Member shall not use, nor permit any third party to use, the SiteCube Store(s) or the SiteCube Web Site or any part thereof: (i) to violate any federal, state or local law, (ii) to transmit any obscene communication, (iii) to promote any illegal activities, (iv) to violate any intellectual property rights (v) to attempt to overcome or penetrate any security measures on the Server, or (iv) to upload or transmit any virus or harmful agent. Member acknowledges that Member may be subject to civil or criminal liability under the laws of various governmental jurisdictions as a result of any failure to abide by the provisions of this paragraph.
Control. Member will be solely responsible for the development, operation and maintenance of the Store(s) and all content and materials appearing in the Store(s), including without limitation (i) the technical operation of the Store(s), (ii) the accuracy and appropriateness of content and materials appearing in the Store(s), (iii) ensuring that the content and materials appearing in the Store(s) do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights), and (iv) ensuring that the content and materials appearing in the Store(s) are not libelous or otherwise illegal. Member also will be solely responsible for accepting, processing and filling any customer orders generated through the Store(s), and for handling any customer inquiries and complaints arising there from. Member shall inspect and monitor the Store(s) as frequently and extensively as necessary to ensure its proper operation and compliance with the provisions of this Agreement, and to uncover any problems with the Store(s). To the fullest extent permitted by law, the Store(s) will be deemed to be exclusively "under the control" of Member and not "under the control" of SiteCube or its suppliers.
27. Standard Clip-Art and Photos
As part of the Service, SiteCube provides its Members with standard clip-art and photos to incorporate into their Member Web Sites. In using the clip-art and photos, Member is governed by an Image License Agreement with a Third Party Image Vendor ("TPIV"), the supplier of the clip-art and photos, which is incorporated into this Agreement. Member understands that the Image License Agreement is a separate contractual relationship between Member and the TPIV, and that Member, and not SiteCube, is responsible for all liability, and obligations in connection with that relationship. SiteCube is not a party to, and shall not be involved in or responsible for, transactions, agreements, and/or disputes between Member and the TPIV ("TPIV Dispute"). In the event of a TPIV Dispute, Member hereby releases SiteCube (and its officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes.