LivingDot Terms and Conditions
This Services Agreement (the "Agreement") contains the complete terms and conditions which govern your subscription of Web hosting, e-Commerce and other Internet-related services provided by LivingDot, Inc., (the "Services"). As used in this Agreement, "LivingDot" means LivingDot, Inc. (LivingDot.com), and "Client", "you", or "your" means you. By clicking on the "Submit Order" button, you acknowledge that you have read the Agreement, and you agree to its terms and conditions and all policies posted on the LivingDot site. As referred to in this Agreement, "Site" refers to a World Wide Web site and "LivingDot Site" refers to the Site located at the URL http://www.livingdot.com, or any other successor Sites owned or maintained by LivingDot.
1. APPROPRIATE USE OF THE SERVICES:LivingDot provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such Services.
- Client Content. Client agrees that it will not distribute, electronically transmit or display any materials supplied by Client - or through Client by a third party - to any LivingDot server in connection with Client's use of the Services which:
- Infringe on any intellectual property rights (e.g., copyright, trademark, patent or other proprietary rights) of LivingDot or any third party;
- Are defamatory, slanderous or trade libelous;
- Are threatening or harassing;
- Pornography is prohibited on all LivingDot servers. This includes sites that may infer sexual content, or links to adult content elsewhere. LivingDot will be the sole arbiter in determining violations of this provision.
- Are discriminatory based on gender, race, age or promotes hate;
- Violate any LivingDot policy posted on the LivingDot Site.
- Contain viruses or other computer programming defects which result in damage to LivingDot or any third party.
- Bandwidth. Client may occupy only the amount of disk space on the LivingDot Server and utilize no more than the network bandwidth that is allotted by LivingDot. Additional fees, specified in the Virtual Host plans page, will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan.
- No "SPAM". Client shall not use the Services for chain letters, junk mail, spamming, or any use of distribution lists to any person who has not given specific permission to be included in such a process. Client also shall not engage in any unsolicited email practices at LivingDot, or otherwise, that mentions or reference any domain hosted on LivingDot servers or parked on LivingDot DNS servers. NOTE: THIS POLICY APPLIES TO VIRTUAL SERVER ACCOUNTS AND ALL DOMAINS, NAMES SERVERS AND PARKED DOMAINS HOSTED ON THE SERVER.
- Licensed Software Only. Client agrees to use only properly licensed third party software in connection with Client's use of the Services.
- Back-Up Files. Client will have the ability to reinstate files which are automatically archived by LivingDot; however, LivingDot does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, Client is responsible for making back-up files in connection with its use of the Services. Backup capability is available through the Client's Control Panel.
- Termination. LivingDot reserves the right to refuse service to anyone. LivingDot, in its sole discretion, may immediately terminate this Agreement if Client engages in any of the foregoing. To report any unacceptable behavior by a third party using the Services, please contact abuse@livingdot.com.
- Service Fees. By the Tenth (10th) of each month, LivingDot shall either (i) debit Client's credit card (where such information is provided by Client) or (ii) deliver by e-mail an invoice to Client in accordance with the applicable Services fees for services rendered for the current month. Where an invoice is delivered to Client, Client shall remit payment to LivingDot by no later than 12 days after the specified payment due date. LivingDot shall be entitled to immediately terminate this Agreement for Client's failure to make timely payments to LivingDot. Certain services carry a set-up fee charged by LivingDot to Client that must be paid by Client in order to have use of the Services. If Client terminates this Agreement in accordance with Section 4 hereunder, Client shall be responsible for any outstanding fees owed to LivingDot and agrees to pay any and all fees incurred by Client. Because the Services are provided on a monthly basis, Client will be responsible for Service fees incurred each month regardless of when Client provides notice of termination. Thus, for example, if Client provides notice to terminate on the 15th of a particular month, Client will still owe fees for the entire month and such fees will not be pro-rated or refunded. If Client has retained the Services for one (1) year and has pre-paid LivingDot for such Services, refunds will be issued for any unused full month portions less one month of the Services upon Clients request. Therefore, if Client's account is cancelled at any point during the one (1) year term, Client will be entitled to a refund for all but one of the full months remaining after notice given by the 25th of the preceding month.
- EXPIRATION AND RENEWAL OF SERVICE(S): You acknowledge that it is your responsibility to keep your own records and to maintain your own reminders regarding when your domain name registration or other Services are set to expire. As a convenience to you, and not as a binding commitment, we and/or your Primary Service Provider may notify you via an email message or via your account when renewal fees are due. Should these fees go unpaid, your Services will expire or be cancelled. Payment must be made by credit card or such other method as we may allow or require from time to time. If you select automatic renewal of the Service(s), we may attempt to renew the Service(s) a reasonable time before expiration, provided your credit card or other billing information is available and up to date. You acknowledge that it is your responsibility to keep your billing information up to date and that we are not required to, but that we may, contact you to update this information in the event that an attempted transaction is not processed successfully.
- IF LAWSUIT(S) ARE THREATENED: If we are sued or threatened with lawsuit in connection with Service(s) provided to you, we may turn to you to indemnify us and to hold us harmless from the claims and expenses (including attorney's fees and court costs). Under such circumstances, you agree that you will, upon demand, obtain a performance bond with a reputable bonding company or, if you are unable to obtain a performance bond, that you will deposit money with us to pay for our reasonably anticipated expenses in relation to the matter for the coming year. Such deposit will be drawn down as expenses are incurred, with all account notices sent to the WHOIS contact information provided in association with your domain names and/or account. We shall not be obliged to extend you any credit in relation to such expenses and we may terminate the Services for a failure to make or renew such a deposit. We will return any unused deposit upon the later of one year from deposit or the conclusion of the matter.
- The parties agree that in no event shall LivingDot be liable to any third party for Client's breach or alleged breach of any of the terms and conditions set forth in this Agreement. Client agrees to defend, indemnify and hold harmless LivingDot from any and all expenses, losses, liabilities, damages or third party claims resulting from Client's breach or alleged breach of any Client obligations set forth hereunder.
- Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services, and shall continue in effect on a month-to-month basis unless otherwise specified by separate agreement (the "Term") unless terminated earlier pursuant to the provisions of this Section 4. Either party will have the right to terminate this Agreement upon notice to the other party. All cancellation requests must be received by the end of the respective month of cancellation. Any other attempt by Client to cancel this Agreement by written or e-mail notice shall be void. Sections 3 - 8 shall survive termination or expiration of this Agreement.
- If Client terminates its account, Client shall be allowed to re-instate Client's use of the Services within Seven (7) business days of cancellation. Client's account will be activated within Forty-Eight (48) business hours. LivingDot (LivingDot.com) will maintain an archival copy of Client's Web site for Seven (7) days after LivingDot receives notice of cancellation. Thereafter, Client will need to place a new order if it wishes to subscribe to the Services.
- Client will pay and indemnify and hold LivingDot harmless from any and all taxes associated with or arising from Client's use of the Services, including any penalties and interest and any costs associated with the collection or withholding thereof.
- THE SERVICES, THE LIVINGDOT SITE, INCLUDING WITHOUT LIMITATION, ALL PRODUCTS AND SERVICES DISPLAYED OR OFFERED ON THE LIVINGDOT SITE, AND ALL TEXT, GRAPHICS, LINKS AND APPLICATIONS ARE PROVIDED TO CLIENT ON AN 'AS IS' BASIS AND WITHOUT WARRANTY OF ANY KIND. LIVINGDOT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO EACH OF THE FOREGOING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LIVINGDOT SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (1)THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (2) DEFECTS WILL BE CORRECTED; (3) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; AND (4) THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT.
- IN NO EVENT SHALL LIVINGDOT BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF THE LIVINGDOT SITE OR ANY LIVINGDOT PRODUCTS OR SERVICES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL LIVINGDOT CUMULATIVE LIABILITY EXCEED AN AMOUNT GREATER THAN ONE HUNDRED DOLLARS ($100 US).
- If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted. This Agreement (including the Exhibits, attachments and/or addenda, if any,) represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by Client, but may be so transferred, assigned or delegated by LivingDot. Any waiver or any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right. In any legal proceeding between the parties under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys' fees. This Agreement is made under and shall be governed by the laws of the United States of America, except with regard to it's conflict of law rules. This Agreement and LivingDot's policies are subject to change by LivingDot without notice. Continued usage of the Services after a change to this Agreement by LivingDot or after a new policy is implemented and posted on the LivingDot Site constitutes your acceptance of such change or policy. We encourage you to regularly check the LivingDot.com Site for any changes or additions.
10. MOVABLE TYPE SOFTWARE — STANDARD PERSONAL USE LICENSE:
This End User License Agreement (the "Agreement") is a binding legal agreement between you, an individual person, and Six Apart, Ltd ("Six Apart"). By selecting "I Accept" when downloading, or by installing or using the Movable Type Software (the "Software"), you agree to be bound by the terms of this Agreement. If you do not agree to the Agreement, do not download, install, or use the Software. You agree that installation or use of the Software signifies that you have read, understood, and agreed to be bound by the Agreement.
HOW YOU CAN USE MOVABLE TYPE
You have, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable personal license to use the Software for your own Non-Commercial Purposes. Your use of the Software is limited to a fixed number of authors and weblogs, as defined below and enumerated in Exhibit A of this agreement.
"Non-Commercial Purposes" means use of the Software by an individual for publishing that does not directly or indirectly support any commercial efforts. Use of the Software for any purpose by any non-individual entity, including but not limited to any commercial entity, corporation, non-profit organization, educational institution, governmental body or group, is not permitted under this Agreement. Affiliate or associate fees that are earned by a personal blog site and are payable to a single individual and that are earned through activities incidental to the main purpose of the site are permitted under the Non-Commercial Purposes of this Agreement.
"Author" means one individual with a unique login name generated by the Software via the "Add/Edit Weblog Authors" function of the Software who has logged in within the prior 90 days. The sharing of an individual login name for more than one person is prohibited.
"Weblog" means a single Web site viewable at a single URL (Uniform Resource Locator), consisting of one or more weblogs as generated by the Software via the "Create New Weblog" function of the Software.
Six Apart reserves the right to determine whether your use is for a Non-Commercial Purpose. Six Apart owns all rights, title and interest in and to the Software, including all intellectual property rights, and reserves all rights to the Software not expressly granted in this Agreement.
A LITTLE CREDIT
We ask that you maintain, on every site generated by the Software, an operable link to http://www.sixapart.com/movabletype/, with the link text "Powered by Movable Type", as specified by Six Apart, though the presence of the credit link on pages generated by a personal paid licensed copy of Movable Type is optional.
MAKING COPIES
You may make as many copies of the Software as you need in any machine readable form solely for back-up purposes, provided that you reproduce the Software in its original form and with all proprietary notices on the back-up copy. All rights to the Software not expressly granted herein are reserved by Six Apart.
GETTING HELP
You may find the user forum and the online documentation helpful in answering questions regarding the use of the Software. You may also be eligible for technical support services as enumerated in your copy of the Software.
RESTRICTIONS
You understand and agree that you shall only use the Software in a manner that complies with any and all applicable laws in the jurisdictions in which you use the Software. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.
You may not:
- Distribute derivative works based on the Software (the distribution of plug-ins and other add-ons to the product written using APIs and other programmatic interfaces published by Six Apart are allowed);
- Reproduce the Software except as described in this Agreement;
- Sell, assign, license, disclose, distribute, or otherwise transfer or make available the Software, in whole or in part, in any form to any third parties;
- Use the Software to provide hosting services to others or to provide any type of service bureau service;
- Use the Software for any non-personal or commercial purposes; or
- Remove or alter any proprietary notices on the Software.
TYPEKEY SERVICE
Some uses of the Comment Registration feature may require registration for the TypeKey service www.typekey.com and compliance with the TypeKey service End User License Agreement. All personal information that you provide to the TypeKey service will be governed by the Privacy Policy, which is available at http://www.typekey.com/privacy/.
PERSONAL INFORMATION AND PRIVACY
We may ask you to provide certain information about you during the Software downloading process. All personal information that you provide to us will be governed by the Privacy Policy, which is available at http://www.sixapart.com/privacy/. By choosing to use the Software, you indicate your understanding and acceptance of the Privacy Policy.
NO WARRANTY
THE SOFTWARE IS OFFERED ON AN "AS-IS" BASIS AND NO WARRANTY, EITHER EXPRESSED OR IMPLIED, IS GIVEN. SIX APART 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. YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE THE SOFTWARE AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE.
TERM, TERMINATION, AND MODIFICATION
You may use the Software under this Agreement until either party terminates this Agreement as set forth in this paragraph. Either party may terminate the Agreement at any time, upon written notice to the other party. Upon termination, all licenses granted to you will terminate, and you will immediately uninstall and cease all use of the Software. The Sections entitled "Title," "No Warranty," "Indemnification," "Limitation of Liability," and "General" will survive any termination of this Agreement.
Six Apart may modify the Software and this Agreement with notice to you either in email or by publishing content on the Six Apart Website, including but not limited to charging fees for the Software, changing the functionality or appearance of the Software, and such modification will become binding on you unless you terminate this Agreement.
INDEMNIFICATION
By accepting the Agreement, you agree to indemnify and otherwise hold harmless Six Apart, its officers, employers, agents, subsidiaries, affiliates and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from your use of the Software or any other matter relating to the Software.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SIX APART AND LIVINGDOT 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 SIX APART OR LIVINGDOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL SIX APART'S AND LIVINGDOT'S TOTAL CUMULATIVE DAMAGES EXCEED 100.00 USD.
GENERAL.
The Agreement between you and Six Apart will be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles. The Agreement constitutes the entire agreement between you and Six Apart and governs your use of the Software, superseding any prior agreements between you and Six Apart. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect. The parties acknowledge that the manufacture and sale of the Software is subject to the export control laws of the United States of America, including the U.S. Bureau of Export Administration regulations, as amended, and hereby agree to obey any and all such laws. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein. You may not assign this Agreement, and any assignment of this Agreement by you will be null and void. Movable Type, the Movable Type logo, Six Apart, the Six Apart logo, and other Six Apart logos and names are trademarks of Six Apart, Ltd. You agree not to display or use these trademarks in any manner without Six Apart's prior, written permission. The section titles and numbering of this Agreement are displayed for convenience and have no legal effect.
DEFINITION OF NON-COMMERCIAL PURPOSES
"Non-Commercial Purposes" means use of the Software by an individual for publishing that does not directly or indirectly support any commercial efforts. Use of the Software for any purpose by any non-individual entity, including but not limited to any commercial entity, corporation, non-profit organization, educational institution, governmental body or group, is not permitted under this Agreement. Affiliate or associate fees that are earned by a personal blog site and are payable to a single individual and that are earned through activities incidental to the main purpose of the site are permitted under the Non-Commercial Purposes of this Agreement.
DEFINITION OF WEBLOG
"Weblog" means a single Web site viewable at a single URL (Uniform Resource Locator), consisting of one or more weblogs as generated by the Software via the "Create New Weblog" function of the Software.
DEFINITION OF AUTHOR
"Author" means one individual with a unique login name generated by the Software via the "Add/Edit Weblog Authors" function of the Software who has logged in within the prior 90 days. The sharing of an individual login name for more than one person is prohibited.
DEFINITION OF SERVER
"Server" means one computer or set of computers with Movable Type installed on one Computer and no more than one other computer used for delivering web pages and two other computers used as database servers.
DEFINITION OF AN UPDATE
An "Update" of the product is defined as that which adds minor functionality enhancements or any bug fix to the current version. This class of release is identified by the change of the revision to the right of the decimal point, i.e. X.1 to X.2.
DEFINITION OF AN UPGRADE
An "Upgrade" is a major release of the product and is defined as that which incorporates a major new features or enhancement that increase the core functionality of the software. This class of release is identified by the change of the revision to the left of the decimal point, i.e. 4.X to 5.X.
The assignment to the category of Update or Upgrade shall be at the sole discretion of Six Apart.
© 2006 LivingDot, Inc.
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