AGREEMENT BETWEEN ApplauZ.com AND USER
The following TERMS OF SERVICE AGREEMENT (the "TOS Agreement" or "Agreement") details the terms and conditions for Web site hosting and e-commerce services (the "Services") provided and administered by Web-Machine.com, an ApplauZ.com company (collectively referred to hereafter as "ApplauZ.com", "ApplauZ", "ApplauZ Online" or "we"). This document constitutes a binding agreement between ApplauZ.com and the ApplauZ.com Member ("Member" or "you"). The TOS Agreement must be accepted prior to the provision of the Services you order through submission of the registration form (the "Registration"). By ordering the Services, you agree to be bound by the terms and conditions set forth below without modification.
2. Fees and Payment
You shall pay the fees and other charges for each Service as provided in the Registration and this Agreement. All fees are due immediately and are non-refundable. ApplauZ.com reserves the right to change rates by notifying Member by email thirty (30) days prior to the effective date of the change. You shall make all payments in U.S. currency. Your credit card will be billed in advance for any and all monthly fees. ApplauZ.com reserves the right to suspend or terminate your Account if credit card charges are denied. Such suspension or termination shall not relieve you of the obligation to pay the fees due. You agree to pay ApplauZ.com its reasonable expenses, including attorney's and collection agency fees, incurred in enforcing its rights under this Agreement.
3. Term and Termination
3.1 In the event you choose to fully register for any of the Services, this Agreement shall become effective upon your completion of the Registration and submission of all necessary and valid payment information for the applicable Services, and shall continue on a month-to-month or other contracted time-based payment basis unless terminated as provided below.
3.3 You may terminate the Services at any time by making the appropriate selections on the Account Area of the Member's Home Page; provided, however that should you elect to terminate Services after the first day of the applicable thirty-day billing cycle, ApplauZ.com has no obligation to refund your fees for that that billing cycle.
3.4 ApplauZ.com requires a valid and active billing subscription to provide you hosting service. Thus, cancelling your subscription billing service will result in the immediate suspension and/or termination of your hosting service and ApplauZ.com has no obligation to refund your fees for that billing cycle.
4. Responsibility for Member Site Development, Operation and Maintenance.
4.1 Member will be solely responsible for the development, operation and maintenance of Member's Site, i.e., of Member's online store and products and all contents and materials appearing online or on Member's products, including without limitation:
4.1.1 the accuracy and appropriateness of content and materials appearing within the store or related to Member's products;
4.1.2 ensuring that the content and materials appearing within the store or related to Member's products do not violate or infringe upon the rights of any third party;
4.1.3 ensuring that the content and materials appearing within the store or related to Member's products are not libelous or otherwise illegal;
4.1.4 the final calculation and application of shipping and sales tax and for accepting, processing, filling and shipping any customer orders;
4.1.5 handling any customer inquiries or complaints arising from customer orders, including, but not limited to, returns, credits and exchanges;
4.1.6 the security of any customer credit card numbers and related customer information that you obtain or access as a result of conducting electronic commerce via the Member Site and to keep all such information confidential and to exercise the same degree of care and security standard in the industry.
5. Disk Space and Data Transfer
You agree that Data Transfer and Disk Space usage shall not exceed the number of megabytes per month for the Services ordered by you through the Registration. This usage shall be monitored and measured by ApplauZ.com. Any Disk Space or Data Transfer usage in excess of the agreed upon number of megabytes per month may result in corrective action by ApplauZ.com, in its sole discretion, including assessment of additional charges (click here for current fee schedule), disconnection or discontinuance of any and all Services, or termination of this Agreement. In the event that ApplauZ.com elects to take any corrective action, you shall not be entitled to a refund of any fees paid in advance prior to such corrective action.
6. Registration E-mail
ApplauZ.com reserves the right to require submission of an e-mail address from a commercial account (such as AOL, Prodigy, MindSpring, Earthlink, MSN, etc.), an education account, or a corporate account for initial ApplauZ.com registration, and to otherwise limit the use of free email account addresses.
7. Member Communication
ApplauZ.com reserves the right to send Members service e-mails notifying the Member of operational or other changes that may affect or significantly change the current services offered. Please note that Members cannot opt out of such service e-mails because these service e-mails provide information critical for the operation of Members' ApplauZ.com Accounts. ApplauZ.com also reserves the right to communicate with its Members regarding, but not limited to, special promotions, and new services ("Non-Service Communications"), if the Member has previously elected to receive such notifications in the ApplauZ.com registration process. Communications may be in the form of e-mail, direct mail or telephone contact (the latter during normal business hours of 9:00 a.m. - 5:00 p.m. Pacific Time). If at any time after registering, a Member elects to discontinue receiving these Non-Service Communications, please follow these steps: a) go to Account Information - you must actually log in to your account; and b) you will be able to review and update any information at this point.
ApplauZ.com reserves the right to amend the Service offerings and add, delete, suspend or modify the terms and conditions of the Services set forth in this Agreement, at any time, and to determine whether and when, at its sole discretion, any such changes apply to both existing or future Members.
9.1 This service is provided for BUSINESSES only. No personal home pages are allowed. ApplauZ.com is not responsible for the content of any Web page hosted by ApplauZ.com. The opinions and views expressed in the ApplauZ.comed Web pages do not necessarily reflect those of ApplauZ.com. The contents of the Web pages hosted on ApplauZ.com are not reviewed in any way before they appear on the Web page. As the author of Web pages hosted on ApplauZ.com, you take full responsibility for their contents. Do not use the Web space provided by ApplauZ.com to provide material that is grossly offensive to the Web community, including, but not limited to, blatant expressions of bigotry, racism, hatred, profanity or for promoting or providing instructional information about illegal activities or promoting physical harm or injury against any group or individual.
9.2 ApplauZ.com services shall only be used for lawful purposes. Transmission or solicitation of any material that violates United States federal, state or other laws that may apply in this jurisdiction or your local area is prohibited.
9.3 ApplauZ.com pages cannot contain, or provide links to, materials that ApplauZ.com, in its sole discretion, may consider illegal or offensive, including, but not limited to:
9.3.1 Copyrighted material not belonging to you--for example, music, images, software or video -- unless you have the prior consent of the copyright owner;
9.3.2 Trademarked material not belonging to you--for example, wordmarks, design marks or a combination thereof -- without prior consent of the trademark owner;
9.3.3 Adult material--pornography, nudity, sex or any other material that would commonly be considered "indecent" or "appealing to the prurient interest;"
9.3.5 Foul language;
9.3.6 Hate-group propaganda;
9.3.7 Mpeg layer two or three ("MP2 or MP3") files;
9.3.8 Mail fraud;
9.3.9 Pyramid or Ponzi schemes;
9.3.10 Insults to other persons or companies, including but not limited to: material that is obscene, threatening, harassing, libelous or in any way a violation of intellectual property laws.
9.4 Members shall not use their ApplauZ.com Web pages to conduct the following activities:
9.4.1 Sell weapons or promote the use thereof;
9.4.2 Send bulk/spam e-mail from a ApplauZ.com server, or sending such e-mail with a ApplauZ.com Web site listed as the contact address. Read more about our Spam Policy.
9.4.3 Send mass/spam news postings;
9.4.4 Advertise or distribute software or services that may contribute to news or e-mail spamming;
9.4.5 Host a banner exchange;
9.4.6 Disclose the trade secrets of any other entity or individual;
9.4.7 Use patented materials without the prior consent of the patent owner;
9.4.8 Rent, sell or otherwise distribute ApplauZ.com Web space to third parties;
9.4.9 Host WAREZ, CRACKS and/or SERIALZ on ApplauZ.com systems or accounts; or
9.4.10 Conduct any other activities, that ApplauZ.com determines, in its sole discretion, to be illegal or an unreasonable drain on system resources.
9.5 It is impermissible to use ApplauZ.com servers for the following purposes:
9.5.1 To act as proxies to access other servers including, but not limited to: File Transfer Protocol (FTP) or Hypertext Transfer Protocol (HTTP);
9.5.2 To run any type of server or daemon including, but not limited to, ICQ or FTP;
9.5.3 To launch malicious attacks on other servers including, but not limited to, denial of service attacks, mail bombs, hack attacks, spamming, port scanning or port probing;
9.5.4 To connect directly to external servers using, for example, Internet Relay Chat (IRC), port scanning or any other unauthorized connection;
9.5.5 To open sockets of any kind including but not limited to, ICQ, IRC or FTP;
9.5.6 To provide CGI for any third party;
9.5.7 To act as a file repository or to serve files for other sites; or
9.5.8 To conduct any other activity that ApplauZ.com determines, in its sole discretion, to be an improper use of the ApplauZ.com servers.
9.6 ApplauZ.com reserves the right to terminate your ApplauZ.com account or remove any page it determines, in its sole judgment, is in violation of any provision of this TOS Agreement.
10.1 It is illegal to attempt to compromise the security on the ApplauZ.com servers by any means, including, but not limited to:
10.1.1 Attempting to gain access to restricted information on ApplauZ.com servers;
10.1.2 Attempting to disable, cripple or modify ApplauZ.com servers or any service running on a ApplauZ.com server; or
10.1.3 Attempting to access information in other ApplauZ.com accounts.
10.2 ApplauZ.com reserves the right to prosecute any individual attempting to compromise the security of the ApplauZ.com servers to the fullest extent allowable by federal, state or local law.
11. Domain Name Registration
11.1 ApplauZ.com may provide Members with free subdomain name registrations, e.g. http://mycompany.ApplauZ.com.
11.2 Any fees, charges or penalties imposed by a Domain Registration Service Provider (e.g., Network Solutions or Register.com) for domain registration and/or maintenance are not included in this contract and will be billed directly to you by the Domain Registration Service Provider.
11.3 The International Corporation for Assigned Names and Numbers ("ICANN") is a nonprofit organization responsible for global Internet domain name registration and policy. Member acknowledges that ICANN may establish guidelines, limits and/or requirements that relate to the amount of information that any Domain Name Registration Service Provider may or must make available to public or private entities, and the manner in which such information is made available. Member consents to any and all such guidelines, limits, requirements and disclosures in connection with the registration of a domain name, including any updates to such information, whether during or after the term of Member's registration of the domain name.
12. Disclaimer of Warranties
12.1 Member understands that the Internet and other various networking communication mediums are not secure, unless explicitly specified as such, and may be subject to interception or loss. ApplauZ.com makes no warranties of any kind, either express, implied or statutory, concerning the data or information available through the ApplauZ.com hosting network or the Internet. ApplauZ.com SERVICES ARE PROVIDED ON AN "AS IS" BASIS. ApplauZ.com MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
12.1.1 THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT;
12.1.2 THAT THE HOSTING SERVICES WILL MEET YOUR REQUIREMENTS OR WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR;
12.1.3 ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE; AND
12.1.4 ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF ApplauZ.com.
12.2 TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ApplauZ.com DISCLAIMS ANY AND ALL SUCH WARRANTIES.
13. Limitation of Liabilities
13.1 IN NO EVENT SHALL ApplauZ.com BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS TOS AGREEMENT, THE HOSTING SERVICES, OR THE INABILITY TO USE THE HOSTED SITE. ApplauZ.com's liability to the Member for actual damages for any cause whatsoever, regardless of the form of the action, will be strictly limited to a maximum of the Fees paid, if any, for the services which gave rise to the cause of action during the twelve (12) month period prior to the date the cause of action arose.
13.2 ApplauZ.com, ITS OFFICERS, DIRECTORS, OWNERS, AGENTS AND EMPLOYEES, SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY RESULTING FROM THE USE OF THE HOSTING SERVICES, CAUSED IN WHOLE OR IN PART BY ITS NEGLIGENCE OR CONTINGENCIES BEYOND ITS CONTROL IN PROCURING, COMPILING, INTERPRETING, REPORTING, MAINTAINING OR DELIVERING THE SERVICES. ApplauZ.com, ITS OFFICERS, DIRECTORS, OWNERS, AGENTS AND EMPLOYEES, SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBLILTY OF SUCH DAMAGES, RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES.
14. Representations, Warranties and Indemnification by Member
14.1 Member represents and warrants that the products and/or services it seeks to list and sell on the ApplauZ.com site (the "Member Site"), and any other materials it seeks to place on the Member Site and any Web site linked from such Member Site, complies with all local, state, federal and foreign regulations and laws.
14.2 Member further represents and warrants that the products and/or services it seeks to list and sell via the Member Site and any other materials it seeks to place on the Member Site will not violate the rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.
14.3 Member agrees to defend, indemnify and hold ApplauZ.com, its subsidiaries, affiliates, officers, employees and agents, harmless from any liability, loss, claim, demand, damage or cause of actions, including reasonable attorney's fees, that may be incurred by ApplauZ.com, asserted by any third party due to or arising out of your conduct or use of the hosting services or any breach of this TOS Agreement.
15.2 ApplauZ.com maintains information about Member and the Member Site on ApplauZ.com servers, including but not limited to Member's account registration information, Merchant's customer order information, sales information, and clickstream data ("Member Information"). Member agrees that ApplauZ.com may use Member Information in aggregate form (i.e. Member Information not attributable to the Member) for marketing and promotional purposes.
15.3 Member agrees that ApplauZ.com may disclose Member Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the TOS Agreement; (d) to respond to claims that the Member or Member Site is engaged in activities that violate the rights of third parties; or (e) to protect rights or interests of ApplauZ.com, InfoSpace, or others; provided, however that nothing in this section shall impose a duty on ApplauZ.com to make such disclosures.
15.4 Member shall maintain a password to access and use the hosting services. Member is entirely responsible for any and all activities that occur under Member's account and password. Member agrees to keep its password confidential, to allow no other person or company to use its account, and to notify ApplauZ.com promptly if Member has any reason to believe that the security of its account has been compromised.
16.1 This TOS Agreement supersedes and replaces any written or oral agreements between ApplauZ.com and Member. Any failures by ApplauZ.com to enforce any provision of this TOS Agreement shall not constitute a waiver of any term hereof.
16.2 If any provision of this TOS Agreement is held invalid or unenforceable, such provision will be struck and the remaining provisions shall be enforced. The unenforceability of any provision in a given jurisdiction shall not render that provision unenforceable in any other jurisdiction.
16.3 The section titles in this TOS Agreement are for convenience only, and have no legal or contractual effect.
16.4 This TOS Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws rules. Any dispute or controversy arising under or related to this TOS Agreement shall be adjudicated in a court of competent jurisdiction within Santa Clara County, California, USA. Member agrees to waive any jurisdiction, venue and inconvenient forum objections to any state or federal court sitting in Santa Clara County, California, U.S.A.
16.5 ApplauZ.com shall not be liable for nonperformance, delay, errors, data loss or other loss caused by any event reasonably beyond ApplauZ.com 's control including, but not limited to acts of God, war, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency
17. CGI Scripts
17.1 Except as provided below, ApplauZ.com makes CGI processes available as part of all Hosting Services. ApplauZ.com maintains the right to disable any CGI script and, if necessary, the Member's account without prior notice if ApplauZ.com determines the script presents a security risk or a server overload. ApplauZ.com also prohibits the use of any scripts that automatically update a links listing. Any CGI scripts that are determined to be inherently malicious may result in termination of the Member's account and the pursuit of any and all legal remedies available to ApplauZ.com.
18. ApplauZ.com TOS for Advertising
For Members who register for the Free Hosting Service, ApplauZ.com is capable of allowing you to use 20MB of free Web space and 200 MB of data transfer thanks to the sponsorship of our advertisers. Each page you create that is hosted by ApplauZ.com as part of the Free Hosting Service is required to carry ApplauZ.com HTML advertising. These advertisements will include, but may not be limited to, one 468x60 sponsorship banner. All advertisements must be located "above the fold" on all ApplauZ.com pages. "Above the fold" is the uppermost viewable area within a browser window. This is the size of a single screen that is visible to browsers without the need for scrolling, consisting of 608x320 pixels Publishers familiar with the advertising standards for online media proposed by CASIE should note that "above the fold" adheres to the dimensions of 19x10 units of 32x32 pixels. The requisite banner may not be moved "below the fold." ApplauZ.com will run a pop-up banner on top of your site if no space is provided for the standard banner. Along with each banner and additional pop-ups, we also reserve the right to run text links and to include traffic generated by all Web sites we host in our overall accounting of page views, unique users and other usage measures. This includes the right to provide all ApplauZ.com URLs to Web traffic measurement companies for use in their projection of ApplauZ.com's overall traffic.
19. Paid Hosting Services
19.1 All Paid Hosting members , including all Basic, Advanced, Professional, and Cart users, will be allocated a base amount of disk space and data transfer at time of Registration. If a user goes over either the data transfer or disk space allocation in a billing cycle, they may be subject to additional fees at ApplauZ.com's discretion.
19.2 As part of the Advanced and Professional services, ApplauZ.com makes PHP, Secure Shell (SSH), POP E-mail, and a MySQL Database ("Features") available. ApplauZ.com maintains the right to disable any Feature and, if necessary, the Member's account without prior notice if ApplauZ.com determines that your use of that Feature presents a security risk or a server overload. ApplauZ.com also prohibits the use of any Feature that automatically update a links listing. Any use of Features that are determined to be inherently malicious, may result in termination of the Member's account and the pursuit of any and all legal remedies available to ApplauZ.com.