ACCEPTANCE OF TERMS
The CMS provides its service to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you.
DESCRIPTION OF SERVICE
The CMS currently provides users with access to a full-featured website management system (the "Service"). You also understand and agree that the service may include certain communications from the CMS such as service announcements, administrative messages and newsletters, and that these communications are considered part of your CMS subscription and you will not be able to opt out of receiving them.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that the CMS assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Service.
YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you agree to:
provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data");
maintain and promptly update the Registration Data to keep it true, accurate, current and complete;
provide true, accurate, current, complete and valid information about your method of payment (such information being the "Billing Data");
maintain and promptly update the Billing Data to keep it true, accurate, current, complete and valid. If you provide any information that is untrue, inaccurate, not current or incomplete, or if the CMS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the CMS has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Payments for your use of the Service will be automatically billed to the credit card you provide in your Billing Data. The following describes the CMS�s billing practices:
Charges are billed each month for the upcoming month�s service, based on your website plan on the billing date. Upgrading the package of your website will cause an interim transaction to occur on the date the change is made. The interim transaction will charge your card a pro-rated amount in order to compensate for the change in charges over the remainder of your billing cycle. Then, at the beginning of your next billing cycle, you will be charged the new monthly amount based on your website's plan on the billing date.
Downgrading your website plan will not initiate an interim transaction. No refunds will be given for any days remaining in your current billing cycle.
MEMBER ACCOUNT, PASSWORD AND SECURITY
You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify the CMS of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. the CMS cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not the CMS, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. The CMS does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that you feel is offensive, indecent or objectionable. Under no circumstances will the CMS be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Service to:
upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
harm minors in any way;
impersonate any person or entity, including, but not limited to, a CMS official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
upload, post, email, transmit or otherwise make available any content that is sexually explicit, pornographic, or in other ways could be viewed as "adult" content;
upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
upload, post, email, transmit or otherwise make available any material that contains 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;
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 and Exchange Commission, any rules of any 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;
collect or store personal data about other users.
You acknowledge that the CMS does not pre-screen Content, but that the CMS and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, the CMS and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by the CMS or submitted to the CMS using the Service. You acknowledge and agree that the CMS may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of the CMS, its owners, its users and the public. You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
The CMS does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant the CMS the following world-wide, royalty free and non-exclusive license(s), as applicable:
With respect to Content you submit or make available for inclusion on publicly accessible areas of the system, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting the specific CMS site to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or the CMS removes such Content from the Service. With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Service, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or the CMS removes such Content from the Service. "Publicly accessible" areas of the Service are those areas of the the CMS network of properties that are intended by the CMS to be available to the general public. By way of example, publicly accessible areas of the Service would include your CMS website. However, publicly accessible areas of the Service would not include portions of services intended for private communication such as E-mail or areas off of the CMS network of properties such as portions of World Wide Web sites that are accessible through links from the CMS sites but are not hosted or served by the CMS.
You agree to indemnify and hold the CMS, and its parent company, subsidiaries, affiliates, officers, agents, or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that the CMS may establish general practices and limits concerning use of the Service, including without limitation the maximum disk space or bandwidth that will be allotted on the CMS�s servers on your behalf. The CMS may enforce these limitations by restricting the software itself, or by contacting you and requiring you to either restrict usage or upgrade your website if your website is found to be outside of the normal range of use.
You agree that the CMS has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You further acknowledge that the CMS reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
MODIFICATIONS TO SERVICE
The CMS reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that the CMS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You agree that the CMS may, under certain circumstances and without prior notice, immediately terminate your CMS website, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical issues or problems, and (f) extended periods of inactivity. Termination of your CMS account includes (a) removal of access to all offerings within the Service, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring further use of the Service. Further, you agree that all terminations for cause shall be made in the CMS�s sole discretion and that the CMS shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Service. All fees paid to the CMS are non-refundable.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because the CMS has no control over such sites and resources, you acknowledge and agree that the CMS is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that the CMS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
THE CMS�S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to access the Service by any means other than through the interface that is provided by the CMS for use in accessing the Service.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE CMS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
THE CMS MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE CMS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE CMS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE CMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service or by posting them on their company website, blog or other corporate communications channels.
The TOS constitutes the entire agreement between you and the CMS and governs your use of the Service, superseding any prior agreements between you and the CMS. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The TOS and the relationship between you and the CMS shall be governed by the law without regard to its conflict of law provisions. You and the CMS agree to submit to the personal and exclusive jurisdiction of the courts. The failure of the CMS to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Note: The section titles in the TOS are for convenience only and have no legal or contractual effect.
This name will serve as the temporary domain name for your new site. Please use letters and numbers only with no spaces. If you chose SmithCompany, you would use http://smithcompany.whynotcms.com as your web address. You can add your own custom domains (www.yourdomain.com) after we've set up your site.
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