Market Edge Communications - Internet Terms of Service

Market Edge Communications, Inc.: Standard Terms of Service

Updated 11/7/06

With respect to web sites we produce, domain registrations, and/or web site hosting services, the following are our standard Terms of Service. These terms are subject to change without prior notice. While we will attempt to deliver notice of changes or updates to these policies, it is your responsibility to periodically check this page for the most current updates or changes.

Market Edge Communications, Inc. and Client acknowledge each party may desire to negotiate modification of specific terms stated below, and modification of any terms can only be made through a separate executed Terms of Service agreement.

GENERAL TERMS – WEB SITE DESIGN

1. Legal. Market Edge Communications, Inc. does not warrant that the functions contained in these web pages or the Internet website will meet the Client's requirements or that the operation of the web pages will be uninterrupted or error-free. The entire risk as to the quality and performance of the web pages and website is with Client. In no event will Market Edge Communications, Inc. be liable to the Client or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate these web pages or website, even if Market Edge Communications, Inc. has been advised of the possibility of such damages. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

2. Copyrights and Trademarks. The Client represents to Market Edge Communications, Inc. and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Market Edge Communications, Inc. for inclusion in web pages are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Market Edge Communications, Inc. and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.

3. Laws Affecting Electronic Commerce. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Market Edge Communications, Inc. and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client's exercise of Internet electronic commerce.

4. Copyright to Web Pages. Copyright to the finished assembled work of web pages produced by Market Edge Communications, Inc. is owned by Market Edge Communications, Inc. Upon final payment of any invoices owed, the Client is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the Client, and remain the property of their respective owners. Market Edge Communications, Inc. and its subcontractors retain the right to display graphics and other Web design elements as examples of their work in their respective portfolios.

5. Payment of fees. Market Edge Communications, Inc. reserves the right to remove web pages from viewing on the Internet until final payment is made. If an amount remains delinquent 30 days after its due date, an additional 5% penalty may be added for each month of delinquency and the website will be "turned off” from public viewing with a temporary page stating that the web site is undergoing routine maintenance. Any statement from the Client that payment will not be made in the future, then Market Edge Communications, Inc. reserves the right to "turn off " the web site at any given time past the actual due date. If an amount remains delinquent 60 days after its due date, all files will be removed from the server and no duplication rights or usage will be granted. In case collection proves necessary, the Client agrees to pay all fees incurred by that process. This Agreement becomes effective immediately upon web site publishing and Clients are encouraged to read Agreement terms carefully and thoroughly and ask questions to Market Edge Communications, Inc. if they should arise. Regardless of the place of reading/signing of this agreement, the Client agrees that for purposes of venue, this contract was entered into in Gwinnett County, Georgia, and any dispute will be litigated or arbitrated in Gwinnett County, Georgia.

5. Acceptance. Unless an exclusively negotiated Terms of Service exists, by demonstrating intent to request modification to be made to and delivering desired web site content (including but not limited to images, materials, information, text, etc.) to Market Edge Communications, Inc. and/or requesting domain name registration services from Market Edge Communications, Inc. and/or utilizing web hosting services arranged by Market Edge Communications, Inc., Client acknowledges and agrees to the Standard Terms of Service. The Terms of Service may be modified from time-to-time and Client signifies acceptance of terms via expressed approval to post revised content to a designated web server and via payment of presented invoices for work performed by Market Edge Communications, Inc.

TERMS SPECIFIC TO WEB SITE HOSTING

Web Hosting. The Client agrees to select a suitable web hosting service that allows Market Edge Communications, Inc. full access to the web site and a cgi-bin directory via FTP and telnet. Suitable includes disk storage space, bandwith, email capacity, cgi-bin directory, server file extensions, etc. Client agrees they will be responsible for all costs incurred to upgrade said web hosting plan to meet the minimum requirements necessary to implement and run the web site produced by Market Edge Communications, Inc.

Tin the event the Client does not have a web hosting service, the Client may request web hosting services be secured by Market Edge Communications, Inc. The Client acknowledges that Market Edge Communications, Inc. is functioning only as a re-seller of a web hosting service for their benefit. Client agrees to be bound equally by any web hosting agreements required for said web hosting services including any acceptable use agreements. Client will be provided with copies of all web hosting agreements, if requested. At any time, Client has the right to request a change in web hosting services. Any cost associated with said request will be charged/paid by the Client.

Limited Warranty. You acknowledge that the web hosting services are provided "as is." Neither Market Edge Communications, Inc., nor any of its employees or agents, warrants that the web hosting services will be uninterrupted, error free or free from viruses or other harmful components. We are not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or completeness, noninfringement, merchantability or fitness for a particular purpose of information available on web hosting servers or residing on or passing through its interconnecting networks. Use of information obtained from or through the web hosting services is at your risk. Under no circumstances will we be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the services.

INDEMNIFICATION. You will indemnify, defend and hold harmless Market Edge Communications, Inc. and its employees, officers, directors and agents (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to the use of the web hosting services, including any violation of any required service agreements and/or acceptable use policies.

13. LIMITATION OF LIABILITY. IN NO EVENT SHALL MARKET EDGE COMMUNICATIONS, INC. OR ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF MARKET EDGE COMMUNICATIONS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Market Edge Communications, Inc.’s liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by you for the web hosting service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.

TERMS SPECIFIC TO DOMAIN NAME REGISTRATIONS, WHERE APPLICABLE

1. Domain Registration: Market Edge Communications, Inc. will secure a domain name(s) for the Client at the Client’s request. All charges incurred in doing so will be billed to the Client. These are Internic fees, and are not a source of income for the Developer. Client acknowledges acceptance of the use of Network Solutions for all Domain Registration services.

If the Client already has a domain name, Market Edge Communications, Inc. will coordinate redirecting the address to the new host. Should the Client desire a specific domain name, which is already owned by another party, negotiations for said domain name must be undertaken by the Client.

2. Selection of a Domain Name. You represent that, to the best of the your knowledge and belief, neither the registration of a requested domain name nor the manner in which it is directly or indirectly to be used infringes upon the legal rights of a third party and, further, that the domain name is not being registered for nor shall it at any time whatsoever be used for any unlawful purpose whatsoever.

3. Term of Domain Name Registration. This Agreement will remain in full force during the length of the term of your Domain Name Registration as selected, recorded, and paid for upon registration of the Domain Name. Generally, Market Edge Communications, Inc. will register domain names for one (1) year terms. Should you choose to renew or otherwise lengthen the term of your Domain Name Registration, the term of this Registration Agreement will be extended accordingly. Should the domain name be transferred to another Registrar, the terms and conditions of this agreement shall cease. Unless instructed otherwise by client, Market Edge Communications, Inc. will advise client of term expiration via invoice for renewal approximately 60 days in advance of term expiration. Payment of domain renewal charges acknowledges your acceptance of these conditions.

4. Domain Name Dispute Policy. If you reserved or registered a domain name through us, or transferred a domain name to us from another registrar, you agree to be bound by the Dispute Policy that is made a part of this Agreement by reference. The current version of the Dispute Policy may be found at http://www.icann.org/udrp.udrp-policy-24oct99.htm. Please take the time to familiarize yourself with this policy.

5. DOMAIN NAME DISPUTES. You agree that, if the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions specified in the Dispute Policy. You agree that in the event a domain name dispute arises with any third party, you will indemnify and hold us harmless pursuant to the terms and conditions contained in the Dispute Policy.

6. POLICY. You agree that your registration of the domain name shall be subject to suspension, cancellation, or transfer pursuant to a Network Solutions, Registry, ICANN or government-adopted policy, or pursuant to any registrar or registry procedure not inconsistent with a Network Solutions, Registry, ICANN or government-adopted policy, (1) to correct mistakes by us or the Registry in registering the name or (2) for the resolution of disputes concerning the domain name.

7. LIMITATION OF LIABILITY. You agree that our entire liability, and your exclusive remedy, with respect to any Services(s) provided under this Agreement and any breach of this Agreement is solely limited to the amount you paid for such Service(s). We and our contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states, our liability is limited to the extent permitted by law. We disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of God; (4) loss or liability resulting from the unauthorized use or misuse of your account identifier or password; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or services(s) provided under this Agreement; (6) loss or liability resulting from the interruption of your Service. You agree that we will not be liable for any loss of registration and use of your domain name, or for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if we have been advised of the possibility of such damages.

8. INDEMNITY. You agree to release, indemnify, and hold us, our contractors, agents, employees, officers, directors and affiliates and the Registry, Public Interest Registry, and its directors, officers, employees, agents and affiliates harmless from all liabilities, claims and expenses, including attorney's fees, of third parties relating to or arising under this Agreement, the Services provided hereunder or your use of the Services, including without limitation infringement by you, or someone else using the Service with your computer, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of our operating rules or policy relating to the service(s) provided. You also agree to release, indemnify and hold us harmless pursuant to the terms and conditions contained in the Dispute Policy. When we are threatened with suit by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a breach of your Agreement and may result in deactivation of your domain name. This indemnification obligation will survive the termination or expiration of this Agreement.

9. TRANSFER OF OWNERSHIP. The person named as registrant on the WHOIS shall be the registered name holder. The person named as administrative contact at the time the controlling user name and password are secured shall be deemed the designate of the registrant with the authority to manage the domain name. You agree that prior to transferring ownership of your domain name to another person (the "Transferee") you shall require the Transferee to agree, in writing to be bound by all the terms and conditions of this Agreement. Your domain name will not be transferred until we receive such written assurances or other reasonable assurance that the Transferee has been bound by the contractual terms of this Agreement (such reasonable assurance as determined by us in our sole discretion) along with the applicable transfer fee. If the Transferee fails to be bound in a reasonable fashion (as determine by us in our sole discretion) to the terms and conditions in this Agreement, any such transfer will be null and void.

10. NO GUARANTY. You acknowledge that registration or reservation of your chosen domain name does not confer immunity from objection to the registration, reservation or use of the domain name.

11. DISCLAIMER OF WARRANTIES. You agree that your use of our Services is solely at your own risk. You agree that such Service(s) is provided on an "as is," "as available" basis. We expressly disclaim 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. We make no warranty that the Services will meet your requirements, or that the Service(s) will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Service(s) or as to the accuracy or reliability of any information obtained through the Service or that defects in the Service will be corrected. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of 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 such material and/or data. We make no warranty regarding any goods or services purchased or obtained through the Service or any transactions entered into through the Service. No advice or information, whether oral or written, obtained by you from us or through the Service shall create any warranty not expressly made herein.

12. INFORMATION. As part of the registration process, you are required to provide us certain information and to update us promptly as such information changes such that our records are current, complete and accurate. You are obliged to provide us the following information:

(i) Your name and postal address (or, if different, that of the domain name holder);
(ii) The domain name being registered;
(iii) The name, postal address, e-mail address, and voice and fax (if available) telephone numbers of the administrative contact for the domain name; and
(iv) The name, postal address, e-mail address, and voice and fax (if available) telephone numbers of the billing contact for the domain name.

Any other information, which we request from you at registration, is voluntary. Any voluntary information we request is collected such that we can continue to improve the products and services offered to you through your Reseller.

13. DISCLOSURE AND USE OF REGISTRATION INFORMATION. You agree and acknowledge that we will make domain name registration information you provide available to ICANN, to the registry administrators, and to other third parties as applicable. You further agree and acknowledge that we may make publicly available, or directly available to third party vendors, some, or all, of the domain name registration information you provide, for purposes of inspection (such as through our WHOIS service) or other purposes as required or permitted by ICANN and applicable laws.

You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by you in connection with the registration of a domain name (including any updates to such information), whether during or after the term of your registration of the domain name. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of your domain name registration information by us.

14. SEVERABILITY. You agree that the terms of this Agreement are severable If any term or provision is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.

15. NON-AGENCY. Nothing contained in this Agreement or the Dispute Policy shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

16. NON-WAIVER. Our failure to require performance by you of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

17. ENTIRETY. You agree that this Agreement, the rules and policies published by us and the Dispute Policy are the complete and exclusive agreement between you and us regarding our Services. This Agreement and the Dispute Policy supersede all prior as and understandings, whether established by custom, practice, policy or precedent.

18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF GWINNETT COUNTY, GEORGIA. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN GWINNETT COUNTY, GEORGIA AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.

19. INFANCY. You attest that you are of legal age to enter into this Agreement.

20. FORCE MAJEURE. You acknowledge and agree that neither we nor the Registry shall be responsible for any failures or delays in performing our respective obligations hereunder arising from any cause beyond our reasonable control, including but not limited to, acts of God, acts of civil or military authority, fires, wars, riots, earthquakes, storms, typhoons and floods.

21. FOREIGN LANGUAGE: Controlling Language. In the event that you are reading this Agreement in a language other than the English language, you acknowledge and agree that the English language version hereof shall prevail in case of inconsistency or contradiction in interpretation or translation.

22. ACCEPTANCE OF AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE SERVICE AND ARE NOT RELYING ON ANY REPRESENTATION AGREEMENT, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.