Updated on 1/1/2010
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 Ciao Websites LLC. ("CiaoWebsites"). This Agreement governs the access and use of all products and services, including but not limited to CiaoWebsites 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 CiaoWebsites, 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 CiaoWebsites to update or revise certain provisions of the Agreement. By signing up for any CiaoWebsites Service and accepting this Agreement, Member agrees that CiaoWebsites 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 CiaoWebsites, or to any terms in this Agreement, Member's sole and exclusive remedy is to cancel Member's CiaoWebsites Service ("Member's Account"). Notwithstanding the foregoing, CiaoWebsites 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 CiaoWebsites, 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
CiaoWebsites reserves the right to charge fees for the Service or any portion thereof and any applicable fees will be posted on the CiaoWebsites 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 CiaoWebsites 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 CiaoWebsites 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 CiaoWebsites 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. CiaoWebsites 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.
CiaoWebsites 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 CiaoWebsites does not currently charge a fee) at any time, provided, however, that CiaoWebsites will provide Member with reasonable notice prior to making any fee changes. In addition, CiaoWebsites 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 CiaoWebsites 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. CiaoWebsites is not responsible for any damages to Member in the event Member decide not to purchase the Service and CiaoWebsites deletes the Member Content after the Trial Period expires.
CiaoWebsites 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. CiaoWebsites Support Services
General Support Services
In order for Member to participate in the Service, CiaoWebsites 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 CiaoWebsites for such actions as set forth in Section
6. Member Account Limitations
Member hereby acknowledges that CiaoWebsites 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 CiaoWebsites, (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. CiaoWebsites 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 CiaoWebsites 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 CiaoWebsites 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 CiaoWebsites, 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 CiaoWebsites, 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.
CiaoWebsites may terminate Member's account for failure to comply with the above listed rules of Member Conduct. Additionally, CiaoWebsites may request Member to place all or any portion of the Member Content behind password protection if CiaoWebsites determines that such content is inappropriate for the community at large but does not otherwise violate the terms of this Agreement. If CiaoWebsites 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 CiaoWebsites requests Member to place any Member Content behind password protection and Member fails to do so promptly, CiaoWebsites 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 CiaoWebsites and CiaoWebsites is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. CiaoWebsites 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. CiaoWebsites is providing such Third Party Content to Member only as a convenience, and the inclusion of such content does not imply endorsement by CiaoWebsites 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. CiaoWebsites does reserve the right to remove content that, in CiaoWebsites's judgment, does not meet its standards, but CiaoWebsites is not responsible for any failure or delay in removing such material.
9. DISCLAIMER OF WARRANTIES.
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT:
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL CiaoWebsites 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 CiaoWebsites 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 CiaoWebsites'S AGGREGATE LIABILITY TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT MEMBER ACTUALLY PAYS TO CiaoWebsites 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 CiaoWebsites nor its suppliers is responsible for any of Member's data residing on the Service or CiaoWebsites's suppliers' hardware. Member is responsible for backing-up Member's data and information that may reside on the Service or CiaoWebsites'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 CiaoWebsites Sites in accordance with these Terms of Service.
12. Proprietary Rights to Member Content
CiaoWebsites does not claim ownership of the Member Content that Member provides to CiaoWebsites and/or places on the Member Site. However, Member grants CiaoWebsites 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 CiaoWebsites'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 CiaoWebsites'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 CiaoWebsites the license set forth above, and, pursuant to the terms set forth in Section 14, Member will defend and indemnify CiaoWebsites and its suppliers from any third party claim related to a breach of any of the foregoing representations and warranties.
13. CiaoWebsites 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.
Member agrees to indemnify and hold CiaoWebsites 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 CiaoWebsites 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 CiaoWebsites 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 CiaoWebsites 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 CiaoWebsites, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials of the Service, which includes the CiaoWebsites (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 CiaoWebsites. Any rights not expressly granted herein are reserved.
16. Notification of Claims of Copyright Infringement
Any notifications of claimed copyright infringement should be sent to CiaoWebsites. Please see CiaoWebsites's Copyright Policy at CiaoWebsites's Copyright Policy for more information.
17. Modification of the Service
CiaoWebsites 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 CiaoWebsites shall not be liable to Member or to any third party for any modification, suspension or discontinuance of the Service. Member further agrees that CiaoWebsites shall have the right to remove any feature from the Member Site, with or without notice to Member, at any time at CiaoWebsites's sole discretion, if CiaoWebsites 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 CiaoWebsites may terminate or cancel Member's Account (or any part of the Service) at any time, but CiaoWebsites will not refund any pre-paid fees upon such termination or cancellation.
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. CiaoWebsites shall not be responsible for any undelivered notices caused by Member's failure to update the account information. CiaoWebsites may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices generally on the CiaoWebsites Web Site. Member should refer to the Member Support page of the Service for information on how to contact and/or provide notice to CiaoWebsites.
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 CiaoWebsites 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.
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. CiaoWebsites'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 CiaoWebsites, and any such attempted assignment shall be void. CiaoWebsites 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 CiaoWebsites 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. CiaoWebsites may change service providers or stop providing the following services at any time without notice to Member; and Member shall permit CiaoWebsites to act as its agent with respect to the following services:
24. Internet Domain Names
CiaoWebsites has chosen independent Third Party Domain Name Vendors ("TPDNVs") who are ICANN accredited registrars, to provide domain name registration services. Member hereby authorizes CiaoWebsites 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 CiaoWebsites, is responsible for all liability, and obligations in connection with that relationship.
Some CiaoWebsites accounts may have Email services provided by an independent Third Party Email Services Vendor ("TPESV"). CiaoWebsites is not responsible for the actions or inaction of the then current TPESV or the unavailability or malfunction of their network or services. CiaoWebsites 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 CiaoWebsites (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. CiaoWebsites Stores
By using CiaoWebsites Store, Member agrees to the following additional terms and conditions:
27. Standard Clip-Art and Photos
As part of the Service, CiaoWebsites 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 CiaoWebsites, is responsible for all liability, and obligations in connection with that relationship. CiaoWebsites 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 CiaoWebsites (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.