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This is Service Agreement Version Number 1.0beta
1. INTRODUCTION. In this Service Agreement ("Agreement"), "you" and "your" refer to each customer ("Customer") and its agents, including each person listed in your account information as being associated with your account, and "we", "us" and "our" refer collectively to UXL Studios. This Agreement explains our obligations to you, and your obligations to us in relation to the UXL Studios service(s) you purchase. By purchasing or otherwise applying for UXL Studios service(s), you agree to establish an account with us for such services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional UXL Studios service(s) or to modify or cancel your UXL Studios service(s) (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, you agree that each person listed in your account information as being associated with your account for any services provided to you (including, but not limited to, domain name registration services) is your agent with full authority to act on your behalf with respect to such services in accordance with the permissions granted, and that the Primary Contact and Account Administrative Contact for your account shall have the authority, without limitation, to terminate, transfer (where transfer is permitted by the Agreement), or modify such services or your account information, or purchase additional services. Any acceptance of your application(s) or requests for our services and the performance of our services will occur at our offices in Bluffton, SC, the location of our principal places of business. Except as otherwise expressly set forth in this Agreement, you agree that if you list, directly or by default, UXL Studios as a contact for your account and/or any of the services in your account, we have the right, without notice, to remove our name and/or information from any such account or service and to replace the same with the name and/or information provided by you for any other contact associated with that account or service.
2. VARIOUS SERVICES. Sections 1 through 30 apply to any and all UXL Studios services that you purchase. The terms and conditions set forth in the Schedules of this Agreement apply only to customers who have purchased the UXL Studios services referenced in those Schedules. In the event of any inconsistency between the terms of Sections 1 through 30 and the terms of the Schedules, the terms of the Schedules shall control with regard to the applicable UXL Studios service. IMPORTANT NOTICE CONCERNING BUNDLED SERVICES: If you purchase UXL Studios services that are sold together as a "bundled" package (e.g., you select a Web Site package that includes both a domain name and a UXL Studios Web Site, as opposed to your purchasing such services separately), termination of any part of the services will result in termination of all UXL Studios services provided as part of the bundled package. Please see Section 10(d) of this Agreement for more information. You acknowledge and agree that some or all of the services you purchase or receive from us may be provided by one or more vendors, contractors or affiliates selected by UXL Studios in its sole discretion.
3. FEES, PAYMENT AND TERM OF SERVICE. As consideration for the services you purchased, you agree to pay UXL Studios the applicable service(s) fees set forth on our Web site at the time of your selection, or, if applicable, upon receipt of your invoice from UXL Studios. All fees are due immediately and are non-refundable, except as otherwise expressly noted in one or more of the Schedules to this Agreement. If you qualify, we may extend payment terms to you under our Business Account Credit Program. Unless otherwise specified herein or on our Web site, each UXL Studios service is for a one-year initial term and renewable thereafter for successive one to ten-year terms, as set forth during the renewal process. Any renewal of your services with us is subject to our then current terms and conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service fees at the time of renewal and in the case of domain name re-registration, the domain name registry's acceptance of your domain name registration. Except with respect to service to which you subscribe on a monthly basis, we will endeavor to provide you notice prior to the renewal of your services at least fifteen (15) days in advance of the renewal date. Additional payment terms may apply to the UXL Studios services you purchase, as set forth in the applicable Schedules to this Agreement. We may provide you with an opportunity to "opt in" to our automatic renewal process in accordance with the instructions (and subject to your agreement to the terms and conditions pertaining to that process) on our Web site. You agree that if you use of our auto-renew service, we will attempt to renew your service approximately sixty (60) days prior to its expiration , for the same term then-currently in place for the service, and at the then-current price for the service. You acknowledge and agree that the renewal price may be higher or lower than the price you paid for the then-current term of the service, and that we are authorized to charge your credit card on file for the renewal of the service(s). In any event, you are solely responsible for the credit card information you provide to UXL Studios and must promptly inform UXL Studios of any changes thereto (e.g., change of expiration date or account number). In addition, you are solely responsible for ensuring the services are renewed. UXL Studios shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the services. In order to process a renewal under our auto-renew service, we may use third-party vendors for the purpose of updating the expiration date and account number of your credit card on file. Such third-party vendors maintain relationships with various credit card issuers and may be able to provide us with the updated expiration date and account number for your credit card by comparing the information we have on file with the information the third-party has on file. By selecting our auto-renew service, you acknowledge and agree that we may share your credit card information with such a third-party vendor for the purpose of obtaining any update to your credit card expiration date and account number. You agree to pay all value added, sales and other taxes (other than taxes based on UXL Studios income) related to UXL Studios services or payments made by you hereunder. All payments of fees for UXL Studios services s hall be made in U.S. dollars. Set up fees, if any, will become payable on the applicable effective date for the applicable UXL Studios services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less.
4. ACCURATE INFORMATION. You agree to: (1) provide certain true, current, complete and accurate information about you as required by the application process; and (2) maintain and update according to our modification procedures the information you provided to us when purchasing our services as needed to keep it current, complete and accurate. We rely on this information to send you important information and notices regarding your account and our services. You agree that UXL Studios (itself or through its third party service providers) is authorized, but not obligated, to use Coding Accuracy Support System (CASS) certified software and/or the National Change of Address program (and/or such other systems or programs as may be recognized by the United States Postal Service or other international postal authority for updating and/or standardizing address information) to change any address information associated with your account (e.g., registrant address, billing contact address, etc.), and you agree that UXL Studios may use and rely upon any such changed address information for all purposes in connection with your account (including the sending of invoices and other important account information) as though such changes had been made directly by you.
5. PRIVACY. Our privacy statement, (a) for Web sites and/or value added services purchased through www.uxlstudios.com is located on our Web site at www.uxlstudios.com and is incorporated herein by reference, as it is applicable to such Web site purchases (other services purchased through www.uxlstudios.com, including, but not limited to, domain name registrations, are covered by the privacy statement set forth on our Web site at www.uxlstudios.com (b) for UXL Studios services purchased through www.uxlstudios.com is located on our Web site at http://www.uxlstudios.coml and is incorporated herein by reference for all such UXL Studios services, and (d) for all other UXL Studios services is located on our Web site at http://www.uxlstudios.com and is incorporated herein by reference for all such UXL Studios services. The applicable privacy statement sets forth your and our rights and responsibilities with regard to your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Web site at least thirty (30) calendar days before it becomes effective. You agree that, by using our services after modifications to the privacy statement become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us except as otherwise expressly provided in one or more of the Schedules attached hereto. We will not process the personal data that we collect from you in a way incompatible with the purposes and other limitations described in our privacy statement. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party's personal data has been collected, (ii) the intended recipients or categories of recipients of the third party's personal data, (iii) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the data held about them. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.
6. OWNERSHIP. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the UXL Studios services identified herein ("UXL Studios Intellectual Property Rights") are owned by UXL Studios or its licensors, and you agree to make no claim of interest in or ownership of any such UXL Studios Intellectual Property Rights. You acknowledge that no title to the UXL Studios Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the UXL Studios or its licensors' service, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by UXL Studios and all right, title and interest in and to each such Derivative Work shall automatically vest in UXL Studios. UXL Studios shall have no obligation to grant you any right in any such Derivative Work.
7. EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM. YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY UXL STUDIOS SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL UXL STUDIOS, ITS LICENSORS AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION SERVICE FOR WEBSITES FROM UXL STUDIOS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF UXL STUDIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN UXL STUDIOS'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. UXL Studios and its licensors and contractors 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 number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; (7) loss or liability resulting from the development or interruption of your web site or your UXL Studios web site; (8) loss or liability from your inability to use our e-mail service, web site manager service or any component of the subscription service (for websites from UXL Studios); (9) loss or liability that you may incur in connection with our processing of your application for our services, our processing of any authorized modification to your domain name record or your agent's failure to pay any fees, including the initial registration fee or reregistration fee; (10) loss or liability as a result of the application of our dispute policy; or (11) loss or liability relating to limitations, incompatibilities, defects, or other problems inherent in xml, xkms, or any other standard not under UXL Studios sole control. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED.
8. DISCLAIMER OF WARRANTIES. YOU AGREE THAT YOUR USE OF OUR SERVICE(S) OR OUR LICENSORS' SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. WE AND OUR LICENSORS 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. NEITHER UXL STUDIOS NOR OUR LICENSORS MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE OR OUR LICENSORS 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 OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES 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 ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
9. TERMINATION. a. By You. You may terminate this Agreement upon at least thirty (30) days written notice to UXL Studios for any reason.
b. By Us. We may terminate this Agreement or any part of the UXL Studios services at any time in the event you breach any obligation hereunder, fail to respond within ten (10) calendar days to an inquiry from us concerning the accuracy or completeness of the information referred to in Section 4 of this Agreement, if we determine in our sole discretion that you have violated the UXL Studios Acceptable Use Policy, which is located on our Web site at www.uxlstudios.com and is incorporated herein and made part of this Agreement by reference, or upon thirty (30) days prior written notice if we terminate or significantly alter a product or service offering.
c. Effect of Termination. Except as otherwise expressly set forth herein or on our Web site, UXL Studios will cease charging your credit card, if applicable, for any monthly service fees as of the expiration of the monthly billing cycle in which the termination is effective. Unless otherwise specified in writing by UXL Studios, you will not receive any refund for payments already made by you as of the date of termination, and, you may incur additional fees (in the case of a monthly or annual subscription being paid over time, as provided in various Schedules below). If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs UXL Studios incurs in closing your account. You agree to pay any and all costs incurred by UXL Studios in enforcing your compliance with this Section. Upon termination, you shall destroy any copy of the materials licensed to you hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, we may delete all information related to you on the UXL Studios service, if applicable. In addition to the terms set forth herein, certain UXL Studios services may have additional terms regarding termination, which are set forth in the applicable Schedule.
d. Effect of Termination of Bundled Services. In addition to the terms set forth in subsection 10(c) above, if you purchase UXL Studios services which are sold together as part of a "bundled" package of services, any termination relating to such bundle will terminate all UXL Studios services included in such bundle. For instance, any domain name registered with or maintained by UXL Studios under this Agreement (but not including any domain names you may have registered, either with UXL Studios or a third-party registrar, separately and not as part of a bundled service) will be cancelled and may thereafter be available for registration by another party. Upon the effective date of termination, UXL Studios will no longer provide the bundled services to you, any licenses granted you shall immediately terminate, and you shall cease using such services immediately; provided, however, that we may, in our sole discretion and subject to your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow you to convert certain services included in the bundled services to stand alone services.
10. REPRESENTATIONS. You agree and warrant that: (i) neither your registration nor use of the any of the UXL Studios services nor the manner in which you intend to use such UXL Studios services will directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you have selected the necessary security option(s) for your domain name registration record, (iv) you are of legal age to enter into this Agreement (or you are at least 13 years of age and have your parents' permission to apply for services hereunder); and (vi) you agree to comply with all applicable laws and regulations.
11. WARRANTIES. Money-Back Warranty
UXL Studios is 100% confident in our ability to design a professional site, market your internet presence and more importantly, increases your cash flow. Consequently, we extend to our clients a money-back warranty to develop trust and confidence.
If you, as an UXL Studios’ customer, are not satisfied with the business derived from the website we will return your money within (5) five business days of receipt of dissatisfaction. Furthermore, we will allow you to retain ownership of the website after we refund the total amount spent with UXL. Client has no risk; we are giving you an opportunity to test our abilities! Worst case scenario, if we don not provide you with a profitable site, you get your money back and receive a free website. The conditions of the warranty are as follows:
1. This warranty applies to the first month, if said client does not receive visitors in the first month, UXL will send a check to the client after receiving notification of dissatisfaction.
2. Notification of dissatisfaction will be sent via certified mail within (5) five business days of the final day of the first month.
3. Upon notification, UXL will review the traffic flow on your site and if the traffic falls below standard set in item (1) one, we will refund within (5) five business days.
4. After the first month this warranty will be void.
5. Satisfaction is agreed in item (1) one, and this is the sole determining factor of satisfaction.
12. MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the services provided under this Agreement at any time. Any such revision or change will be binding and effective 30 days after posting of the revised Agreement or change to the service(s) on UXL Studios Web sites, or upon notification to you by e-mail or United States mail. You agree to periodically review our Web sites, including the current version of this Agreement available on our Web sites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as expressly noted otherwise in one or more of the Schedules to this Agreement, but you will not incur any additional fees. By continuing to use UXL Studios services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Web site of a general informational nature. No employee, contractor, agent or representative of UXL Studios is authorized to alter or amend the terms and conditions of this Agreement.
13. GOVERNING LAW.
a. You and UXL Studios agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the South Carolina, United States of America, excluding its conflict of laws rules. You and we each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the South Eastern South Carolina, Beaufort County for any disputes between you and UXL Studios under, arising out of, or related in any way to this Agreement (whether or not such disputes also involve other parties in addition to you and UXL Studios). If there is no jurisdiction in the United States District Court for the Eastern District of South Carolina, Beaufort Division, for any such disputes, you and we agree that exclusive jurisdiction and venue shall be in the courts of Beaufort County, South Carolina.
b. Reserved.
c. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement.
d. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
name(s) being deleted by UXL Studios and/or the .US Registry. Neither UXL Studios nor the .US Registry (nor any other entity or person) shall be liable to you for any actions or inactions of any of them resulting from your failure to provide all required .US Nexus Requirements information at the time of registration (or, where applicable, subsequent to registration), and none of them shall hav e any obligation to request or attempt to obtain from you additional information to establish your compliance with the .US Nexus Requirements, even if the need for such information is known by any of them.
4. Nexus Dispute Policy. You agree to be bound by the Nexus Dispute Policy ("NDP") administered by the .US Registry (or a third party designated by the .US Registry), which policy and its applicable forms are located on the .US Registry's web site at the URL: http://www.neustar.com/. You agree to abide by all decisions rendered by the .US Registry (or its third party designee) in connection with the NDP.
5. Dispute Resolution Policy. You agree that you are bound by the United States Dispute Resolution Policy set forth on the .US Registry's website at the URL: www.neustar.com.
6. Registry Actions or Inactions. Our ability to provide services to you depends in part upon the provision of services by third parties, such as the .US Registry. We cannot control and will not be responsible for the actions or inactions of such third parties. You acknowledge and agree that we shall not be liable to you or any other party in connection with claims, damages, losses, expenses or costs incurred or suffered by you as a result of actions taken or not taken by third parties, including, but not limited to, the .US Registry (for example, the .US Registry reserves the right to deny, delete, transfer or freeze any domain name registration for a variety of reasons, none of which UXL Studios can control).
7. Accurate Information. Without limiting the other provisions of the Agreement, your willful or grossly negligent provision of inaccurate or unreliable information, or your willful or grossly negligent failure promptly to update information provided to UXL Studios shall constitute a material breach of this Agreement and shall be a basis for cancellation of the domain name(s) applied for hereunder.
8. Application Submission. You acknowledge and agree that UXL Studios (as the parent company) will be submitting your .US domain name application(s) to the .US Registry through .US Registrar L.L.C., and that all applications submitted by you hereunder (except for Sunrise applications, where applicable) will be submitted by .US Registrar L.L.C. on or after the date upon which the .US Registry goes live.
SCHEDULE A TO SERVICE AGREEMENT
WEB SITES
1. Definitions. For purposes of this Schedule, the following capitalized terms shall have the meanings ascribed to them below:
(a) "Web Site Template" means any pre-designed, customizable UXL Studios Web site template licensed by UXL Studios to end users.
(b) "Homepage" means a one-page Web site and one e-mail box. "Starter Site" means a five-page Web Site Template and two e-mail boxes. "Enhanced Site" means unlimited Web Site pages up to a maximum of 1,000 pages and ten e-mail boxes.
(c) "Subscription Service" means any of the UXL Studios Web Site Template packages that are available for purchase by end users on a monthly or annual basis, for a monthly or annual fee (respectively), that combine a Web Site Template, the Web site Editing Tool, the Web Hosting Service, and/or such other services as may, from time to time, be included in the package by UXL Studios as of the time of your purchase.
(d) "Web site Editing Tool" means the UXL Studios on-line design and editing tool that allows customers to access their Web Site Templates, add/modify content, upload images and make generic changes to their Web Site Templates.
(e) "Web Hosting Service" means the Web hosting services provided by UXL Studios or a third party through UXL Studios as part of a monthly or annual Web Site Template Subscription Service or Hosting Services as defined in Schedule T of this Agreement.
2. Payment. In addition to the payment terms in Section 3 of the Agreement, the following provisions shall also apply solely with respect to the Subscription Service:
(a) Billing for the Subscription Service shall be by valid credit card (acceptable to UXL Studios) at the time of purchase at the fee set forth on our web site. Your monthly and, if you've selected our "auto-renew" feature, annual payments for the Subscription Service shall be automatically charged to the credit card provided by you (and acceptable to UXL Studios) at the time of your purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable ("Subscription Service Fee"), and you hereby agree that UXL Studios is authorized to so charge your credit card. UXL Studios, in its sole discretion, shall determine the prices it will charge for the Subscription Service, and the terms and conditions applicable to the same, and UXL Studios may, upon providing thirty (30) days notice to you by email, amend such pricing and/or terms and conditions. If you do not agree to the change(s), you may terminate this Agreement (or cancel your Subscription Service, as applicable) as provided herein within such thirty (30) day period; otherwise all such changes shall thereafter be effective with respect to your account, and you agree that we are authorized to charge your credit card for any new Subscription Service Fee, on the next monthly or annual (as applicable) payment cycle.
3. File Size, Storage and Bandwidth Limitations. The following file size and bandwidth limitations apply to all Web Site Templates offered by UXL Studios:
(a) File Size and Storage. You can upload a maximum of 2GB of files to your Web Site Template scrapbook, provided that all files must comply with the following size limitations: All Image, Text and Document files have a 5 Megabyte limit (includes .gif, .jpg, .jpeg, .txt, .doc, .xls, .wri, .ppt, .dxf, .pdf and .psd files); and all Media, Flash, and Compressed files have a 15 Megabyte limit (includes .mpg, .mp2, .mp3, .wav, .mid, .mov, .asf, .wma, .wmv, .avi, .mpeg, .rm, .ra, .swf, .zip and .sit files). Each Web Site Template has a total published storage limit ("Published Storage Limit") as follows: (i) Homepage 1 page Web Site Template = 500 Megabytes; (ii) Starter 5-page Web Site Template Package = 1 Gigabyte; and (iii) Enhanced 1,000-page Web Site Template Package = 4 Gigabytes. You may not publish content that exceeds the Published Storage Limit for the Web Site you have selected.
(b) Bandwidth. You and your Web Site visitors can view and download the following amounts of content on your Web Site per month: (i) Homepage 1 page Web Site Template = 1 Gigabyte per month ; (ii) Starter Package 5-page Web Site Template = 2 Gigabytes per month; and (iii) Enhanced 1,000-page Web Site Template = 100Gigabytes per month. UXL Studios reserves the right, in its sole discretion, to either (A) charge, and you agree to pay, an additional fee as determined by UXL Studios in its sole discretion, which fee shall not exceed US $0.50 per Megabyte, for each Megabyte of usage that exceeds the bandwidth limitations set forth above, or (B) terminate or suspend your Web Site Template and this Agreement if you exceed the bandwidth limitations set forth above.
4. Conduct. You agree to be bound by the applicable provisions of the UXL Studios Acceptable Use Policy, incorporated herein and made part of this Agreement by reference, in connection with your use of the services described in this Schedule.
5. MapQuest Service. Any use of the MapQuest service that is a part of the Web Hosting Service, Subscription Service or Web Site Template or any other UXL Studios service is at your own risk. UXL Studios is in no way responsible or liable for any and all claims or damages that arise as a result of your use or a third party's use of the MapQuest service. UXL Studios is not liable for any property damage or personal injury as a result of your use or a third party's use of the MapQuest service. You further agree that you will include the following statement on your Web Site: "Maps/Directions are informational only. User assumes all risk of use. MapQuest, UXL Studios, and their suppliers make no representations about content, road conditions, route usability, or speed." You expressly agree that you will not modify the MapQuest service in any way nor will you use the MapQuest service in any way that may infringe the rights of UXL Studios, MapQuest or any third parties. UXL Studios reserves the right to terminate, delete, remove or modify the MapQuest service at any time without warning or notification to you.
6. Use of Images. Your use of any content, images or pictures that are made available by UXL Studios as a part of the Web Hosting Service, Subscription Service or Web Site Template or any other UXL Studios service is governed by the terms of this agreement. You agree that certain content, images or pictures that you use as a part of the Web Hosting Service, Subscription Service or Web Site Template services are governed by the JupiterImages End User License Agreement ("JIEULA") which is located at www.imageseula.com. You are obligated to abide by the terms of this agreement and the JIEULA in your use of any content, images or pictures that are provided by UXL Studios to you. You agree that you will not modify, alter, change, reproduce, reengineer, recreate, deface, sell, distribute, lease, license, sublicense or rent any content, image or picture that is made available to you by UXL Studios or that is part of a Web Hosting Service, Subscription Service or Web Site Template. You expressly agree that you will not use any content, images or pictures in any way that may infringe the rights of UXL Studios or any third parties. UXL Studios and its partners retain all rights, title and ownership to the content, images and pictures that are made available to you. Your agree that your use of the content, images or pictures made available by UXL Studios do not give you any rights in such content, images or pictures.
7. Cancellation. You may cancel your Subscription Service at any time. To cancel your Subscription Service you must submit your written notice of cancellation to UXL Studios (as provided herein) and include the following information: (i) Your UXL Studios customer identification number and username; (ii) the registered Domain Name associated with your Web Site Template; and (iii) your reason for requesting cancellation. Unless otherwise agreed to in writing (in either paper or electronic form), your Subscription Service will be canceled as of the expiration of the monthly billing cycle in which your notice was received.
8. Term and Termination.
(a) Term. Your Subscription Service shall be either (i) on a month-to-month basis for successive monthly periods, (ii) if you have selected our auto-renew feature, on a year-to-year basis for successive yearly periods, or (iii) if you have not selected our auto-renew feature, for a one-time annual period, all unless either party notifies the other of termination or cancellation in accordance with this Agreement, and subject to the then-current terms and conditions of this Agreement at the time of any renewal of your Subscription Service.
(b) Notice of Service Cancellation by You. Unless terminated earlier as provided herein, this Schedule, and the Agreement if you have no other services with UXL Studios, will be terminated as of the cancellation of your Subscription Service.
(c) Survival. In the event of expiration or termination of this Schedule or the Agreement for any reason, Sections 1 and 8 of this Schedule shall survive.
. SCHEDULE B TO SERVICE AGREEMENT
WEB SITE DESIGN SERVICES
In addition to the terms and conditions in the General Provisions and other applicable Schedules in the Agreement, the following additional terms and conditions shall apply to any and all purchases of Web site Design Services (as defined below).
1. Description of Service
1.1 UXL Studios will build a Web site for you with the information provided to us by you, as described on our Web site ("Design Services"). Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, UXL Studios agrees to provide to you the Design Services you purchase during the sign-up process. UXL Studios reserves the right to amend its Design Services offerings and to add, delete, suspend or modify the terms and conditions of such Design Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
1.2 Customer hereby grants to UXL Studios and its vendors and subcontractors the necessary rights and licenses with respect to the Web site built for by UXL Studios to carry out obligations under this Agreement and to make a reasonable number of archival or back-up copies as deemed necessary by UXL Studios.
2. Your Obligations. You shall be responsible for the following:
2.1 Providing UXL Studios with all relevant information and custom images (including, but not limited to, design, pamphlets, brochures, logos, and other images) in connection with development of your Web site.
2.2 Contacting UXL Studios for all changes, modifications, and enhancements to your Web site and/or Design Services starting from the date of sale.
2.3 Contacting UXL Studios with notice of Customer's decision to cancel or discontinue the Design Services starting from the date of sale.
2.4 Obtaining Internet connectivity to access your Web site, to send and receive e-mail, and to otherwise access and utilize the Internet.
2.5 To the extent Customer gathers any personal information about visitors to your Web site, Customer will not share that personal information with any third party without first obtaining a visitor's consent.
2.6 Ensuring that the Web site content provided by Customer does not infringe or violate the Intellectual Property rights (including, but not limited to, trademarks, trade names, copyrights, patents, domain registration rights, and trade secrets) or any other right of any third party (including, but not limited to, rights of privacy and contractual rights), and acquiring any authorization(s) necessary to use intellectual property or other proprietary information of third parties. By using the Design Services, Customer represents and warrants that any name or word submitted to be used as all or part of the URL associated with your Web site does not infringe any trademark or domain name rights of any third party.
2.7 Ensuring the accuracy of materials provided to UXL Studios, including, without limitation, Web site content, descriptive claims, warranties, guarantees, nature of business, and contact information for the Customer.
3. Information and Content You Provide. If you provide any information that is untrue, inaccurate, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, UXL Studios has the right to suspend or terminate your account and refuse any and all current or future use of the Design Services (or any portion thereof).
4. Non-Interference By You. Customer will use the Design Service in a manner which does not interfere with or disrupt other network users, services, or equipment, and UXL Studios reserves the right to terminate or suspend the Design Services without notice if such interference is determined by UXL Studios to exist. Such interference or disruption includes, but is not limited to:
4.1 wide-scale distribution of messages, including bulk e-mail or unsolicited spam e-mail, or wide-scale distribution of messages to inappropriate mailing lists, newsgroups, or other public or private forums,
4.2 propagation of computer worms or viruses, and
4.3 use of the network to make unauthorized entry to other computational, information, or communications devices or resources. This includes unauthorized security probing activities or other attempts to evaluate the security integrity of a network or host system without permission.
5. Unauthorized or Inappropriate Use. UXL Studios reserves the right to deny, terminate, or suspend Design Services without notice if, in UXL Studios' sole discretion, the Design Services are used by Customer in a manner that violates or may violate the following standards or the AUP, and UXL Studios reserves the right to reject, alter, modify, or remove Customer's website, website domain name, URL address, or any website content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which UXL Studios in its sole discretion deems to be in violation of the AUP or (i) an infringement on or a mechanism designed to facilitate the infringement of a propriety interest of any third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right, or (ii) stating or implying that the Web site is placed by UXL Studios or any party with a contractual relationship with UXL Studios, or that such parties endorse the Customer's products or services, or (iii) pornographic or obscene.
5.1 UXL Studios neither sanctions nor permits hosted site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity. UXL Studios reserves the right to immediately suspend or terminate any site or transmission that violates this policy, without prior notice. In the event of such termination, Customer agrees that the unused portion of any fees Customer may have paid for any services rendered to Customer by UXL Studios are an appropriate recompense to UXL Studios for the time required to respond to and address issues created by Customer's illegal or obscene site/content, and Customer agrees not to seek recovery of those fees. Further, should Customer violate this Agreement or the AUP, UXL Studios will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer's website, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
6. Additional Indemnification Obligations. In addition to your indemnification obligations set forth elsewhere in this Agreement, you agree to defend, indemnify, and hold harmless UXL Studios and each of its officers, directors, employees, agents, affiliates, co-branders or other partners, and employees of any of the foregoing, from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim in connection with your Web site (including, but not limited to, Web site content) or the URL and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including reasonable legal fees and expenses (whether incident to the foregoing or to UXL Studios' enforcement of said rights or defense and indemnity).
7. Ownership of Your Content. With the exception of your ownership interest in the information, materials, images, photos and other content you provide to us for inclusion in your Web site, ownership interest to your Web site, including, but not limited to, the HTML coding, scripting, copyrights, and all other intellectual property rights, shall remain exclusively with UXL Studios.
8. Fees and Payment Terms; One-Year Commitment. The term of your subscription to the Design Services selected by you will be initially for one year, and then on a month-to-month basis thereafter. Fees for the Design Services selected by you will be on a pre-paid basis, due and payable at the beginning of the term (meaning at the beginning of the first year and thereafter at the beginning of each month), unless (at time of your purchase) we provide you with the ability to pay for the first year of your subscription on a monthly basis (in which case we will charge your credit card at the beginning of each monthly period during your first year subscription). You agree that in the event you terminate your subscription to the Design Services prior to the completion of your first one-year commitment, you will not receive a refund of any fees paid and, in the event we have permitted you to pay on a monthly (or other payment-over-time) basis, you will be obligated to pay us for the balance of your total first-year fees (for which you agree we may charge your credit card on file). After you first year's subscription, we will continue billing your credit card at the beginning of any and all subsequent monthly terms until such time as you or we terminate the Design Services.
9. Suspension and/or Termination. If you breach any term of this Agreement including, but not limited to, this terms of this Schedule or the Acceptable Use Policy, UXL Studios may, in its sole and exclusive discretion, suspend or terminate your Design Services immediately and without notice to you. In addition to your obligation to pay your first year's subscription fees for the Design Services, Design Services fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Services fees that accrue during the period of suspension
SCHEDULE C TO SERVICE AGREEMENT
ONLINE MARKETING SERVICES
In addition to the terms and conditions in the General Provisions and other applicable Schedules in the Agreement, the following additional terms and conditions shall apply to any and all purchases of Online Marketing Services (as defined below).
1. Description of Service
1.1 UXL Studios may make available for purchase, from time to time, a variety of online marketing services, including online banner advertisement creation and publication, email communication tools, registration with several World Wide Web search engines and Internet Yellow Pages Directories (as described on our Web site), and premium listings services (collectively, "Online Marketing Services" or "Services"), as published on the UXL Studios Web site. Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, UXL Studios agrees to provide to you the Online Marketing Services you purchase during the sign-up process. UXL Studios reserves the right to amend its Online Marketing Services offerings and to add, delete, suspend or modify the terms and conditions of such Online Marketing Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
1.2 In order to use the Services, you must obtain access to the Internet/World Wide Web, either directly or through devices that access Web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet/World Wide Web, including a computer and modem or other access device.
2. Your Obligations.
2.1 If you provide any information that is untrue, inaccurate, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, UXL Studios has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
2.2 You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (for purposes of this Schedule, "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 UXL Studios, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Online Marketing Services. UXL Studios does not control the Content posted via the Online Marketing Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Online Marketing Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will UXL Studios 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 or otherwise transmitted via the Online Marketing Services.
2.3 UXL Studios will charge you a processing fee of $9.95 (U.S. Dollars) if you terminate or cancel an annual Hosting Services package prior to the completion of any limited money-back guarantee period for that package ("Processing Fee"). You authorize UXL Studios, in its sole discretion, to charge the credit card provided by you at the time of your purchase or forward an invoice to you immediately upon any such termination or cancellation of an annual Hosting Services package for the amount of the Processing Fee.
2.4 In addition to all other restrictions under this Agreement and the Acceptable Use Policy, you agree to not use the Online Marketing Services to:
(a) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Online Marketing Services;
(b) upload, post, email or otherwise transmit any Content that you do not have a right to transmit 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);
2.5 You acknowledge that UXL Studios does not pre-screen Content, but that UXL Studios and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, UXL Studios and its designees shall have the right to remove any content that violates this Agreement 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 UXL Studios or submitted to UXL Studios.
2.6 In addition to the terms of our Privacy Policy, you acknowledge and agree that UXL Studios 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 Agreement; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of UXL Studios, its users and the public.
2.7 You understand that the technical processing and transmission of the Online Marketing Services, 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.
2.8 UXL Studios reserves the right to reject any advertisements from entities for any reason, including those products and/or advertisements deemed to be inappropriate in any way. This includes advertisements or links to pornography, violence, vulgar language, dating/personal ad sites, mp3 sites, gambling, racial/hate promotion, foreign language, etc.
3. Fees and Payment Terms Payment for the Online Marketing Services selected by you will be on a pre-paid basis, due and payable at the beginning of the term, and will continue billing at the beginning of any and all subsequent terms until such time as you or we terminate the Online Marketing Services. To participate in the premium listings service (the "Listings Service")(as a part of the Online Marketing Services), you must be an active, current UXL Studios account holder. You agree to pay us or our third party vendors for all charges incurred by your use of the Listings Service. For charges generated through the delivery of clicks to your site, you will be charged based on actual clicks and pay all charges in US Dollars. All charges are exclusive of taxes. Charges are solely based on our (or our third party vendors') click measurements. You are responsible for paying all taxes and government charges, and reasonable expenses and attorney fees we incur in any action associated with the collection of service fees. You agree to submit any claims or disputes regarding any charge to your account in writing to us within sixty (60) days of such charge otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge.
Any one-time service fees charged to your account and any initial deposit, the value of which will be credited to your account, are non-refundable. When your funds on deposit with us fall below the minimum level for active accounts, defined as 20% of your estimated monthly click charge, we will automatically bill your credit card, charge card, or debit card on file the amount equal to the minimum monthly amount (defined as your Average Daily Spend amount multiplied by 30 days), as specified by you during the Listings Service signup. We reserve the right to change the minimum level for active accounts at any time. You have the option of terminating your Listings Service at any time. Such termination of your Listings Service shall be effective at the end of your normal 30 day billing cycle, or when your funds on deposit are exhausted. At time of notice of termination, we reserve the right to allocate any or all of your available funds to any outstanding charges or fees due us. Upon the effective date of termination, your listings will be removed from the search engines.
4. Your License. UXL Studios grants you a personal, non-transferable and non-exclusive right and license to use on a single computer the object code of any software provided to you by UXL Studios in connection with the Online Marketing Services ("Software"); provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Online Marketing Services. You agree not to access the Online Marketing Services by any means other than through the interface that is provided by UXL Studios for use in accessing the Online Marketing Services.
5. Suspension and/or Termination. If you breach any term of this Agreement including, but not limited to, this terms of this Schedule or the Acceptable Use Policy, UXL Studios may, in its sole and exclusive discretion, suspend or terminate your Online Marketing Services immediately and without notice to you. Online Marketing Services Fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Services fees that accrue during the period of suspension.
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