Service Agreement
1. INTRODUCTION.
In this Service Agreement ("Agreement"), "you" and "your" refer to each client ("Client") 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 LB Web Studio, LLC and its wholly-owned subsidiaries ("LB Web Studio"). This Agreement explains our obligations to you, and your obligations to us in relation to the LB Web Studio service(s) you purchase. By purchasing or otherwise applying for LB Web Studio 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 LB Web Studio service(s) or to modify or cancel your LB Web Studio 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 Maryland, US , 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, LB Web Studio 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 24 apply to any and all LB Web Studio services that you purchase, whether purchased separately or as a part of a complete solution or package bundle. The terms and conditions set forth in the Schedules of this Agreement apply only to clients who have purchased the LB Web Studio services referenced in those Schedules. In the event of any inconsistency between the terms of Sections 1 through 24 and the terms of the Schedules, the terms of the Schedules shall control with regard to the applicable LB Web Studio service. IMPORTANT NOTICE CONCERNING SERVICES THAT ARE COMBINED TOGETHER AS A PART OF A BUSINESS SOLUTION: If you purchase LB Web Studio services that are sold together as a "bundled" package (e.g., that includes both a domain name (Web Address) and a LB Web Studio Website designing or other services, as opposed to your purchasing such services separately), termination of any part of the services will result in termination of all LB Web Studio 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 LB Web Studio in its sole discretion. As a part of your Services, LB Web Studio may provide you access to third party functionality, including, but not limited to applications, widgets, RSS and other types of news, event and industry feeds, calculators, recommended copy, forms and templates that are incorporated or are offered as a part of one or more of the Services ("Third Party Functionality"). LB Web Studio does not control such Third Party Functionality and is therefore not liable for any issues of any kind relating to the Third Party Functionality. LB Web Studio reserves the right, at its sole discretion, to terminate, suspend, cancel or alter your access to Third Party Functionality at any time.
3. FEES, PAYMENT AND TERM OF SERVICE.
(a) Services
As consideration for the services you purchased, you agree to pay LB Web Studio the applicable service(s) fees set forth on our Website at the time of your selection, or, if applicable, upon receipt of your invoice from LB Web Studio. All fees are due immediately and are non-refundable, except as otherwise expressly noted in one or more of the Schedules to this Agreement or as such fees are billed by LB Web Studio under an invoice to a Client that expressly permits payment for Services by a Client within thirty (30) days after LB Web Studio has sent the Client such invoice.
(b) Other Commitments.
If a promotional or plan benefit (such as an upgrade, free month of service, free web-hosting, rebate, discounted services or other incentive) is provided to you at no charge or at a specified discount based on your keeping LB Web Studio, LLC service for a specific length of time, then, unless otherwise specified in the offer you received, the specified period begins on the day that you accept the promotion or benefit. This is generally the date of your order but may be the date your first payment is processed, whichever is later. If you terminate your service before that period of time expires, then you will be subject to a recovery fee equal to the amount of the promotional/ discount or plan benefit that was specified on the date that it was provided to you, less the amount, if any, paid for the promotional or plan benefit in connection with your acceptance of same. You remain responsible for all usage charges that are outside of the promotional or plan benefit.
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.
5. PRIVACY.
You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website 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 LB Web Studio services identified herein ("LB Web Studio Intellectual Property Rights") are owned by LB Web Studio or its licensors, and you agree to make no claim of interest in or ownership of any such LB Web Studio Intellectual Property Rights. You acknowledge that no title to the LB Web Studio Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the LB Web Studio 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, abridgment, 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 LB Web Studio and all right, title and interest in and to each such Derivative Work shall automatically vest in LB Web Studio. LB Web Studio 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 LB Web Studio 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 LB Web Studio, ITS LICENSORS AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION SERVICE FOR WEBSITES FROM LB Web Studio) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF LB Web Studio 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 LB Web Studio’s LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. LB Web Studio 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 email messages; (7) loss or liability resulting from the development or interruption of your Website or your LB Web Studio Website; (8) loss or liability from your inability to use our email service, Website manager service or any component of the subscription service (for websites from LB Web Studio); (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 re-registration 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 LB Web Studio 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 LB Web Studio 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. INDEMNITY.
You agree to release, indemnify, defend and hold harmless LB Web Studio and any of our (or their) contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, relating to or arising out of (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the LB Web Studio services or your use of such services, including without limitation infringement or dilution by you, or someone else using our service(s) from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operating rules or policies relating to the service(s) provided, (e) any information or data you supplied to LB Web Studio, including, without limitation, any misrepresentation in your application, if applicable, (f) the inclusion of meta-tags or other elements in any website created for you or by you via the LB Web Studio services, or (g) any information, material, or services available on your licensed LB Web Studio Website . When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us. Such assurances may, without limitation, be in the form of a deposit of money by you to us or our representatives to cover our fees and expenses, including but not limited to reasonable attorneys' fees, in any such suit or threat of suit. Your failure to provide such assurances may be considered by us to be a material breach of this Agreement. We shall have the right to participate in any defense by you of a third-party claim related to your use of any of the LB Web Studio services, with counsel of our choice. We shall reasonably cooperate in the defense at your request and expense. You shall have sole responsibility to defend us against any claim, but you must receive our prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement.
10. TERMINATION.
a. By You. You may terminate this Agreement upon at least thirty (30) days written notice to LB Web Studio for any reason.
b. By Us. We may terminate this Agreement or any part of the LB Web Studio 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 LB Web Studio Acceptable Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
11. REPRESENTATIONS AND WARRANTIES.
You agree and warrant that: (i) neither your registration nor use of the any of the LB Web Studio services nor the manner in which you intend to use such LB Web Studio 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.
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 LB Web Studio Websites, or upon notification to you by email or United States mail. You agree to periodically review our Websites, including the current version of this Agreement available on our Websites, 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 LB Web Studio 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 Website of a general informational nature. No employee, contractor, agent, or representative of LB Web Studio is authorized to alter or amend the terms and conditions of this Agreement.
13. ACCOUNT ACCESS.
To access or use the LB Web Studio services or to modify your account, you may be required to establish an account and obtain a login name, account number, password and/or passphrase. You authorize us to process any and all account transactions initiated through the use of your password and/or passphrase. You are solely responsible for maintaining the confidentiality of your password and passphrase. You must immediately notify us of any unauthorized use of your password or passphrase, and you are responsible for any unauthorized activities, charges and/or liabilities made through your password or passphrase. In no event will we be liable for the unauthorized use or misuse of your login name, account number, password or passphrase. You agree that we may log off any account that is inactive for an extended period of time.
14. AGENTS.
You agree that, if your agent, (e.g., your Primary Contact or Account Administrative Contact, Internet Service Provider, employee) purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the domain name dispute policy. Your continued use of our services ratifies any unauthorized actions of your agent. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent.
15. OTHER POLICIES.
In addition to the terms and conditions set forth in this Agreement, the purchase of services may make other LB Web Studio Policies applicable to you and the use of our services. In making a purchase of our services, you agree to the terms set forth in these policies. LB Web Studio reserves the right to make changes to these policies. You agree to periodically review the policies in our Terms of Use to be aware of any such revisions.
16. NOTICES AND ANNOUNCEMENTS.
(a) Except as expressly provided otherwise herein, all notices to LB Web Studio shall be in writing and delivered via overnight courier or certified mail, return receipt requested to LB Web Studio, LLC, All notices to you shall be delivered to your mailing address or email address as provided in your account information (as updated by you pursuant to this Agreement) or to any email address associated with your domain name registration(s) with LB Web Studio. (b) You authorize us to contact you as our Client via telephone, at the number provided by you in your account information (as updated by you pursuant to this Agreement), which telephone number is incorporated herein by reference, email or postal mail regarding information that we deem is of potential interest to you. Notices and announcements may include commercial emails, telephone solicitations and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security or to enhance your identity on the Internet and/or other relevant matters.
17. SEVERABILITY.
You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
18. ENTIRE AGREEMENT.
You agree that this Agreement, the rules and policies incorporated by reference in this Agreement (including, without limitation, the dispute policy and the privacy statement) are the entire, complete and exclusive agreement between you and us regarding our services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement, including, without limitation, any purchase order provided by you for the services.
19. ASSIGNMENT AND RESALE.
Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the services (or portion thereof) without LB Web Studio prior express written consent.
20. GOVERNING LAW.
a. You and LB Web Studio agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the Commonwealth of Illinois, 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 any disputes between you and LB Web Studio 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 LB Web Studio).
b. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement.
c. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
21. AGREEMENT TO BE BOUND.
By applying for a LB Web Studio service(s) through our online application process or otherwise, or by using the service(s) provided by LB Web Studio under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
22. INDEPENDENT PARTIES.
Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
23. WAIVER.
No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of LB Web Studio. The remedies of LB Web Studio under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach
24. FORCE MAJEURE
Notwithstanding the above, either party may choose to be excused of any further performance obligations in the event of a disastrous occurrence outside the control of either party, such as, but not limited to:
A natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms or infestation); or
War, Invasion, Act of Foreign Enemies, Embargo, or other Hostility (whether declared or not); or
Any hazardous situation created outside the control of either party such as a riot, disorder, nuclear leak or explosion, or act or threat of terrorism.
Questions about the Service Agreement should be sent to us at info@lbwebstudio.com