General Services Agreement
Agreement between Stellaractive ("Stellaractive," "We", "Us", or "Provider") and You, Your heirs, agents, successors and assigns ("You"or "Your") and is made effective as of the date of electronic execution. This document shall constitute the entire agreement between HomeSpun Websites and You and while superseding any other prior agreements, govern Your use of all Stellaractive's services.
1. No Unlawful Conduct or Improper Use
We will immediately deactivate Your Account if it is found by Us that Your Account is used for illegal, abusive or unethical activity. Illegal, Abusive or Unethical Activities include, but are not limited to inclusion of or linking to, pornography, mp3's, obscenity, nudity, violations of privacy, and any harassing or harmful materials or uses, as determined by Us.
2. No Spam; Liquidated Damages
You are expressly prohibited from sending unsolicited bulk mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk-mailing of commercial advertising, information announcements, and political tracts. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. We reserve the right to immediately deactivate Your use of our service if We discover such activity. Further, You agree to indemnify and hold Us harmless from any claim resulting from Your use or distribution of electronic mail services through the service provided through this Agreement. Anyone using our services for spamming will be immediately subject to a $1 fee for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your Account.
3. Service Fees
Monthly service fees will be charged on a monthly basis on the day that You signed up for the service.
All payments are due on time, without exception. Any accounts that are past due with upgraded websites will be immediately inactivated. Putting a valid credit card back on file will activate the website immediately.
4. Charge Backs
There is a $50 administrative fee for any illegitimate chargebacks placed against Us. Any illegitimate chargebacks or threatened illegitimate chargebacks are grounds for immediate Account cancellation.
You shall ensure that the Your Account does not violate or infringe upon the rights of any third party (including for example, copyrights, trademarks, patents, moral rights or other intellectual property rights, rights of privacy or publicity, or other personal or proprietary rights) and does not violate the federal, state, or local laws of the United States, or any other relevant jurisdiction, including without limitation, laws against slander libel and defamation. You shall indemnify, defend and hold HomeSpun Websites as well as all Provider's Affiliates and licensees, and each of their officers, shareholders, directors, employees and agents harmless from any and all claims, damages and expenses (including without limitation, attorneys fees and costs of litigation) relating to the Your Account. You shall assume the defense and settlement of such Claims with counsel reasonably satisfactory to HomeSpun Websites at Your sole risk and expense. Provider shall provide You reasonably prompt notice in writing of any such Claims and provide You with reasonable information and assistance, at Your expense, to help Yourself defend such Claims. Provider shall at all times have the right to participate fully in such defense at its own expense. You shall not have any right, without Provider's written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Provider or its Affiliates or otherwise requires Provider or its Affiliates to take or refrain from taking any material action (such as the payment of fees). The parties agree that the foregoing indemnity obligations shall survive the termination or expiration of this Agreement.
6. Representations & Warranties; Disclaimer; Limitations On Liability
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, STELLARACTIVE SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND IS AVAILABLE WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. STELLARACTIVE MAKES NO WARRANTY THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. STELLARACTIVE DOES NOT WARRANT, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR RESULTS OF, ANY OF THE SERVICES IT PROVIDES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
6c. LIMITATIONS ON LIABILITY
BY ENTERING INTO THIS AGREEMENT, BOTH PARTIES EXPRESSLY ACKNOWLEDGE THAT THE LIABILITY TO THE OTHER PARTY IS SPECIFICALLY LIMITED TO AMOUNTS PAID TO AND RECEIVED UINDER THE TERMS OF THIS AGREEMENT. BOTH PARTIES HEREBY WAIVE ALL RIGHTS OF RECOVERY OF ANY DAMAGES, WHETHER ACTUAL OR SPECIAL, PUNITIVE OR CONSEQUENTIAL, THAT MAY INCUR OVER AND ABOVE SAID AMOUNTS, INCLUDING WITHOUT LIMITATION, DAMAGES FOR NEGLIGENCE, LOST DATA, USE, PROFITS, INCOME, SAVINGS, LOSS OF OR DAMAGE TO PROPERTY, PERSONAL INJURY, GOODWILL OR ANY CLAIMS OF THIRD PARTIES WHATSOEVER WITH RESPECT TO THE SITE OR THE SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR ACCIDENTAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL PARTIES; IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
7. Modification of this Agreement
You agree that Stellaractive may modify this Agreement from time to time. You agree to be bound by any changes that Stellaractive may reasonably make to this Agreement.
The term of this Agreement shall continue in full force and effect as long as You take advantage of and use Stellaractive Services such as Mobi Squirrel and the mcardbuilder.com.
In the event You cancel Your service, You will be charged in full for the entire month in which You canceled Your service. Account cancellations for Accounts with a negative balance will be passed on to collections, and all services rendered to the party with the negative balance will be terminated, including domain registrations.
The following sections shall survive the termination of this Agreement: 6 (Representations and Warranties, Limitation on Liability), 8 (Term: Termination), 10 (Severability), 11 (Notice) and 13 (General).
If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall not be affected, impaired or invalidated in any way. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable.
Any notice, request or demand that is required or permitted under the terms of this Agreement shall be in writing and shall be sent by reputable air courier, mail or telefacsimile, all postage and other charges prepaid, as the case may be, addressed to Stellaractive as follows to Stellaractive, 4849 SE Division St, Portland, Oregon 97206. Fax: 503-905-6139.
Such notice, request or demand shall be deemed to have been given or made: (i) on the next business day if sent by telefacsimile (with machine confirmation ), (ii) upon receipt if sent by courier, or (iii) upon receipt if sent mail.
12. Force Majeure
Stellaractive will make every effort to keep its Web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold Stellaractive or its partners and or agents liable for any of the consequences of such interruptions.
13a. Governing Law; Arbitration
This Agreement shall be construed and controlled by the laws of the State of Oregon. The Parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation. If the Parties are unable to resolve the dispute by negotiation, You agree that any and all disputes or claims against Stellaractive will be handled by an arbitrator of our hiring and decisions rendered by such arbitrator will be final and binding. In the arbitrator rules in our favor, You will be responsible for any and all costs related to or associated with such arbitration.
13b. Binding Effect
Subject to the limitations set forth herein, this Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.