VisPerNET Terms of Service Agreement
Universal Terms of Service
This Terms of Service Agreement ("Agreement") is by and between VisPerNET, Inc., ("VisPerNET", a Virginia Corporation, and "You," Your representatives and/or agents. It is made effective as of the date of electronic execution or signed contract. This Agreement sets forth the terms and conditions of Your use of VisPerNET software ("Software") and services ("Services") and explains VisPerNET's obligations to You and Your obligations to VisPerNET in relation to the Software and Services You purchase.
This Agreement, as well as any additional VisPerNET policies, along with all future modifications, constitutes the complete and exclusive agreement between You and VisPerNET. It governs Your use of VisPerNET's Software and Services, and supersedes and governs all prior proposals, agreements, or other communications.
All VisPerNET policies and agreements specific to particular Software and Service are incorporated herein and made part of this Agreement by reference, including the Privacy Policy, Spam Policy, and Uniform Domain Name Dispute Resolution Policy.
By purchasing and/or using VisPerNET's Software or Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement, and any other policies or agreements made part of this Agreement by reference. In addition, you agree to any new, different or additional terms, conditions or policies which VisPerNET may establish from time to time, and any agreements that VisPerNET is currently bound by or will be bound by in the future. You may view the latest version of this Agreement online.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with VisPerNET, whether or not the transactions were on Your behalf.
GENERAL TERMS APPLICABLE TO ALL SOFTWARE AND SERVICES
Term of Agreement; Modifications
You agree that VisPerNET may modify this Agreement and the Services from time to time. You agree to be bound by any changes VisPerNET may reasonably make to this Agreement. Once You have purchased Services or Software from VisPerNET, the terms of this Agreement shall continue in full force and effect so long as You continue to pay for Services and Software. In the event You terminate Your usage, VisPerNET will not refund any amounts You have paid. You agree that VisPerNET shall not be bound by any representations made by third parties who You may use to purchase Services from VisPerNET, and that any statement of a general nature, which may be posted on VisPerNET's Website or contained in VisPerNET's promotional materials, will not bind VisPerNET. VisPerNET may, at times, offer certain promotions with different charges and features.
You agree that You will be responsible for notifying VisPerNET should You desire to terminate Your use of VisPerNET's Services. Notification of Your intent to terminate must be provided to VisPerNET no earlier than 10 days prior to Your billing date but no later than 3 days prior to Your billing date.
If you terminate your service contract or are terminated by VisPerNET, there is a $25 processing fee to transfer to another provider the FREE Domain or Transfer you received when you purchased your account.
11. If VisPerNET assigns the Account Holder an Internet Protocol address in connection with the Account Holder's use of the VisPerNET services, the right to use that Internet Protocol address will remain with and belong only to VisPerNET, and the Account Holder will have no right to use that Internet Protocol address except as allowed by VisPerNET in its sole and absolute discretion.
Accurate Information
You agree to maintain accurate information by providing updates to VisPerNET, as needed, while You are using VisPerNET's Services. You agree You will notify VisPerNET within five (5) business days when there is any change of the information You provided in the application and/or registration process. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by VisPerNET to determine the validity of information provided by You will constitute a material breach of this Agreement.
You agree that VisPerNET may use and rely on any such information provided by You for all purposes in connection with Your Services, subject to VisPerNET's Privacy Policy. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if VisPerNET has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, VisPerNET has the absolute right, in its sole discretion, to terminate its Services and close Your account.
Privacy
You can view VisPerNET's Privacy Policy here, which is incorporated herein by reference, as it is applicable to all Company Software and Services. The Privacy Policy provides Your rights and VisPerNET's responsibilities with regard to Your personal information. VisPerNET will not use Your information in any way inconsistent with the purposes and limitations provided in the Privacy Policy.
VisPerNET, Inc. reserves the right at all times to disclose any information as VisPerNET, Inc. deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in VisPerNET, Inc.'s sole discretion.
Account Security
You agree You are entirely responsible for maintaining the confidentiality of Your password and account information. You agree You are entirely responsible for any and all activities that occur under Your account, whether initiated by you, others or by any other means. You agree to notify VisPerNET immediately of any unauthorized use of Your account or any other breach of security. You agree VisPerNET will not be liable for any loss that You may incur as a result of someone else using Your password or account, either with or without Your knowledge. You further agree You could be held liable for losses incurred by VisPerNET or another party due to someone else using Your account or password. For security purposes, You should keep account access information in a secure location and take precautions to prevent others from gaining access to Your user name and password. VisPerNET specifically disclaims liability for any activity in Your account, whether or not authorized by You.
No Unlawful Conduct or Improper Use
As a condition of Your use of VisPerNET's Software and Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions. You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to VisPerNET if, for any reason, VisPerNET takes corrective action with respect to Your improper or illegal use of its Services.
VisPerNET reserves the right at all times to disclose any information as VisPerNET deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, at VisPerNET's sole discretion.
If You have purchased Services, VisPerNET has no obligation to monitor content and will expressly not monitor Your personal content.
VisPerNET reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against VisPerNET or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. VisPerNET monitors every account for space and bandwidth utilization according to the Account Size purchased and VisPerNET will apply additional fees to those accounts that exceed Account Size levels purchased when additional Account Size space is not promptly upgraded and purchased. VisPerNET will provide notification via email, however, you are solely responsible for reviewing your usage via the Control Panel and increasing your Estate Space as required. If you do not respond to notifications that you have exceeded space or bandwidth limits set in your purchased services, then VisPerNET reserves the right to charge your Credit Card on file with your account or seek recovery of amounts due VisPerNET.
VisPerNET will, at its discretion, terminate use of Services if You are using the Services in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm minors in any way.
You accept that VisPerNET prohibits unacceptable use of any Services and reserves the right to terminate Services should You engage in the following activities, including but not limited to: (1) disseminating or transmitting unsolicited messages, chain letters or unsolicited commercial email or spam; (2) disseminating or transmitting any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (3) disseminating or transmitting files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (4) creating a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (5) exporting, re-exporting or permitting downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (6) interfering, disrupting or attempting to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization (hacking); (7) disseminating or transmitting any virus, Trojan Horse or other malicious, harmful or disabling data, work, code or program; (8) engaging in any other activity deemed by VisPerNET to be in conflict with the spirit or intent of this Agreement or any VisPerNET policy; (9) engaging in activities whether lawful or unlawful that we determine harmful to subscribers, operation and reputation or (10) using Your server as an "open relay" or similar purposes.
VisPerNET not only reserves the right to terminate services under the above conditions, but The Company may terminate Services if the contents within Your Service(s) are the subject of legal action or threatened legal action against VisPerNET or any of its affiliates or partners, regardless of whether or not such legal action or threatened legal action is eventually determined to be without merit. The decision to terminate Your Service(s) shall be done solely by VisPerNET, and in doing so, VisPerNET shall not be required to consider the merits of legal action or whether threatened legal action will actually come to pass.
In the event VisPerNET cancels Your Services during the first thirty (30) days after You purchase the Services, You will receive a refund of any fees paid to VisPerNET in connection with the Services being canceled. In the event VisPerNET cancels Your Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to VisPerNET if, for any reason, VisPerNET takes corrective action with respect to Your improper or illegal use of its Services.
Liquidated Damages for Spam Violations
Should VisPerNET terminate any account that it finds transmitting spam or that is connected to it or any other unsolicited bulk email, the following penalties will apply: if actual damages cannot be reasonably calculated then You agree to pay VisPerNET the greater of liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, or VisPerNET's actual damages.
Intellectual Property
You understand and agree that all content and materials contained in this Agreement, other policies, the VisPerNET Web site, and any affiliated Web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that VisPerNET expressly reserves its rights in and to all such content and materials. You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of VisPerNET. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise. You agree that VisPerNET holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You agree to make no claim of interest on any VisPerNET Services or Software.
Use of VisPerNET Software
You agree that VisPerNET grants you the use of licensed software under a limited, non-exclusive, nontransferable and non-assignable license. This allows the use of the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but you agree not to alter or modify the Software. You agree You are not authorized to combine the Software with any other software program, create derivative works based upon the Software, nor are You authorized to integrate any plug-in or enhancement that uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
VisPerNET reserves all rights to the Software. The Software You are authorized to use is the intellectual property of VisPerNET. The source code and its organization are the exclusive property of VisPerNET. The Software is protected by copyright, including United States Copyright Law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the Software. All rights are reserved by VisPerNET.
VisPerNET provides this Software "as is" without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
Fees and Payment
You agree to pay VisPerNET at the time You order the Software or Services. All fees are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. VisPerNET expressly reserves the right to modify pricing through email notification and/or notice on its Web site. Payment may be made via valid credit card.
If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchased the Services, unless that date falls after the 28th of the month. In that case, Your billing date will be the 28th of each month. If You signed up for an annual (or longer) payment plan, and You elected the automatic renewal option, VisPerNET will automatically renew Your Services when they come up for renewal and will take payment from the account You have on file, per the original pricing and rates You paid upon opening an account with VisPerNET. If for any reason VisPerNET is unable to charge Your credit card the full amount owed VisPerNET for the Services provided or if VisPerNET is charged a penalty for any fee it previously charged to Your account, a $50.00 fee will apply. You agree that VisPerNET may pursue all available remedies in order to obtain payment and reimbursement of all penalties assessed to VisPerNET. You accept that the remedies VisPerNET may pursue in order to effect payment, will include but not be limited to, immediate cancellation or suspension of the account. If an account holder's account is overdue for 90 days, the account will be handed over to an outside collection agency. At that time the account holder will incur a $50.00 collection fee added to the balance previously due. Interest will accrue on the overdue account at a rate of 5% per month until the outstanding balance is paid in full. You accept that, the remedies VisPerNET may pursue in order to effect payment, without notice to You of any domain names or Services registered or renewed on Your behalf. VisPerNET reserves the right to charge You a reasonable administrative fee for administrative tasks outside the scope of its regular Services. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, and disputes that require legal services. These charges will be billed to the account we have on file for You. You may change account information at any time by logging into Your Estate Account.
You agree that You are solely liable for renewing Your VisPerNET Services, and that VisPerNET shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your Services.
Representations and Warranties
You, or the individuals who electronically execute this Agreement on Your behalf, 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 represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done 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.
VisPerNET expressly reserves the right to deny, cancel or transfer any domain name registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of VisPerNET, as well as its affiliates, subsidiaries, officers, directors and employees. VisPerNET also reserves the right to freeze a domain name during resolution of a dispute.
Limitation of Liability
VisPerNET will use its best efforts to maintain a full time Internet presence for the Account Holder. The Account Holder hereby acknowledges that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall VisPerNET be liable to you or any other person for any indirect, incidental, consequential, special, exemplary or punitive damages, including loss of profit or goodwill, for any matter, whether such liability is asserted on the basis of contract, tort (including negligence), breach of warranties, either express or implied, any breach of this agreement or its incorporated agreements and policies, your inability to use the software or services, your loss of data or files or otherwise, even if VisPerNET has been advised of the possibility of such damages.
Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, VisPerNET's liability is limited to the full extent permitted by law. You agree that, in no event, shall VisPerNET's maximum aggregate liability exceed the total amount You paid for the particular Software or Service You purchased from VisPerNET.
Disclaimer of Warranties
VisPerNET 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. Services are provided on an "As Is" and "As Available" basis. VisPerNET 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. VisPerNET 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.
Some jurisdictions do not allow the disclaimer of implied warranties. In which event, that foregoing disclaimer may not apply to You.
Indemnification
You agree to defend, indemnify and hold harmless VisPerNET and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys' fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with VisPerNET whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from VisPerNET or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold VisPerNET harmless from any loss, liability, damages or expense, including reasonable attorneys' fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should VisPerNET be notified of a pending law suit, or receive notice of the filing of a law suit, VisPerNET may seek a written confirmation from You concerning Your obligation to indemnify VisPerNET. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that VisPerNET shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify VisPerNET of any such claim promptly in writing and to allow VisPerNET to control the proceedings.
You agree to cooperate fully with VisPerNET during such proceedings. You agree You will not be entitled to a refund of any fees paid to VisPerNET if, for any reason, VisPerNET takes corrective action with respect to Your improper or illegal use of its services. If VisPerNET is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding an Estate Space account of Yours with VisPerNET, You agree that VisPerNET, in its sole discretion, may take whatever action VisPerNET deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
- Governing Law, Venue; Waiver of Trial by Jury
This agreement shall be deemed entered into in the State of Virginia. Except for disputes concerning the user of a domain name registered with VisPerNET, You agree that the laws and judicial decisions of Loudoun County, Virginia, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Loudoun, Virginia. For the adjudication of disputes concerning the use of any domain name registered with VisPerNET, You agree to submit to jurisdiction and venue in the U.S. District Court for the District of Virginia located in Alexandria, Virginia. You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
Notices
You agree that all notices (except for notices concerning breach of this Agreement) from VisPerNET to You may be posted on our Website and or via email notification. Notices concerning breach will be sent either to the email or postal address You have on file with VisPerNET. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to VisPerNET shall be made either by email, sent to the address provided on the VisPerNET Web site, or first class mail to VisPerNET's address at: VisPerNET, Inc. Attn: Legal Counsel, 22510 South Sterling Blvd, Suite 200, Sterling, Virginia 20164, USA.
Headings
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
Entire Agreement
You agree that this Agreement including the policies and agreements it refers to (i.e. our Dispute Resolution Policy, etc.) constitute the complete and only Agreement between You and VisPerNET regarding the Services contemplated herein.
Severability
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
Waiver
The failure of VisPerNET to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of VisPerNET thereafter to enforce such provisions.
Force Majeure
VisPerNET will make every effort to keep its Website 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 VisPerNET liable for any of the consequences of such interruptions.
Survival
All Sections 1-22 shall survive any termination or cancellation of this Agreement.
No Third Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
