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CRYSTALINK SERVICE ACCESS AGREEMENT
IMPORTANT – PLEASE READ THESE SERVICE TERMS AND CONDITIONS ("Agreement") CAREFULLY BEFORE ACCESSING OR USING THE CrystaLink ECOMPRO SERVICE or THE CrystaLink WEB HOSTING SERVICE("Service").
This Agreement is between you, the Service user ("You") and CrystaLink ("CrystaLink"), the owner of the Service. This Agreement includes all policies referenced by hyperlink. Your USE OR ACCESS OF THE SERVICE evidences your agreement to be bound by these Terms.
1. Service Access.
2. You may remotely access the Service by using Your Internet browser. If You are a merchant, You may access the Service through a third party service provider ("Service Provider") for the purpose of creating and maintaining an online store ("Store"). If You are accessing the Service through a Service Provider, the Service Provider may require You to agree to terms and conditions in addition to this Agreement in order to access the Service. Proprietary Rights.
3. The Service and all information, content and software contained therein are owned by CrystaLink, its Service Provider or suppliers, including all intellectual property rights therein. You may not (i) copy or distribute the Service or any portion of the Service without CrystaLink's prior written consent; (ii) modify the Service or any portion of the Service without CrystaLink's prior written consent; (iii) modify any copyright or other proprietary notices contained in the Service; or (iv) grant access to the Service or any portion of the Service to other third parties without CrystaLink's prior written consent. Except as expressly provided for in this Agreement, no rights or licenses in the Service are granted to You under this Agreement. Use Information.
4. You may be asked to provide personal information to CrystaLink when registering to use the Service, purchasing products in a Store or at later times in response to specific requests for information from CrystaLink. You agree that CrystaLink may use that information in accordance with the CrystaLink Privacy Statement, as it is amended from time to time. CrystaLink may also release Your personal information in response to all court orders and lawful requests from governmental authorities. Any other material, information or idea that you transmit to CrystaLink or post on the Service may be used or disseminated by CrystaLink for any purpose. You agree that any information that you provide to CrystaLink, whether or not confidential, is non-proprietary and that CrystaLink may (without compensation to You) use the information to create, modify and improve its products and services. Posting of Information.
5. You may not post to or download from the Service or any Store any unlawful, threatening, obscene, pornographic or profane material or any other material that could give rise to any civil or criminal liability under applicable law. Right to Restrict Services.
6. CrystaLink reserves the right (with or without notice) to modify or terminate Your access to the Service or any portion of the Service if, in CrystaLink's sole judgment, use of the Service by You (i) presents a material security risk; (ii) violates applicable laws or governmental regulations, including without limitation consumer protection, securities regulation, child pornography, obscenity, data privacy, data transfer and telecommunications laws; (iii) violates or infringes any intellectual property right of CrystaLink or a third party; (iv) violates export control regulations of the United States or other applicable countries; (v) otherwise violates CrystaLink's Acceptable Use Policy; or (vi) is subject to an order from a court of governmental entity stating that such use generally or for certain activities must stop. Additionally, CrystaLink may, in its sole discretion, restrict Your access to the Service or any portion of the Service if a third party alleges Your use of the Service violates their intellectual property, privacy or publicity rights. Payment.
7. You will pay CrystaLink or the Service Provider all applicable fees relating to Your use of the Service. CrystaLink reserves the rights to terminate any account that is delinquent on paying these fees. If You would like your terminated account reinstated, a reinstating fee will be charged. All setup and reinstating fees are nonrefundable. Modifications.
8. CrystaLink may change the terms and conditions of this Agreement and the offerings of the Service from time to time by posting a modified copy of the terms and conditions on the Service or by otherwise notifying You. Those changes will be effective and binding as of posting of the notice, unless a different effective date is specified. Indemnification.
9. You agree to indemnify, defend and hold harmless CrystaLink, its Service Providers, and their officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Service from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement or any activity related to Your access of the Service, including negligent or wrongful conduct by You or any other person accessing the Service on Your behalf. Disclaimer of Warranties.
10. You understand that certain of the information, products or services, available through the Service or on the Internet are offered by third parties and that CrystaLink does not control or take responsibility for such information, products or services. You also understand that CrystaLink cannot and does not guarantee or warrant that the Service will be error free or free from infection or viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. THE SERVICE, AND ALL SERVICES, PRODUCTS, INFORMATION, SOFTWARE AND OTHER MATERIALS PROVIDED THROUGH THE SERVICE ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. CRYSTALINK, IT'S SERVICE PROVIDERS AND SUPPLIERS SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. Limitation of Liability.
11. IN NO EVENT SHALL CRYSTALINK, ITS SERVICE PROVIDERS OR SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY SERVICES, PRODUCTS, SOFTWARE OR OTHER MATERIALS PROVIDED THROUGH THE SERVICE, EVEN IF CRYSTALINK, ITS SERVICE PROVIDERS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. CRYSTALINK'S, ITS SERVICE PROVIDERS OR SUPPLIERS' TOTAL LIABILITY FOR DAMAGES, LOSSES, AND CAUSES OF ACTION, REGARDLESS OF LEGAL THEORY, WILL IN NO EVENT EXCEED THE AGGREGATE DOLLAR AMOUNT YOU HAVE PAID TO CRYSTALINK TO ACCESS THE SERVICE. Excused Performance.
12. Neither CrystaLink nor its Service Provider will be liable for any delay or failure to perform as a result of any cause or condition beyond their reasonable control. Children.
13. The Service was not designed for use by children under the age of 18. U.S. Government Restricted Rights.
14. All materials, information, software and other products supplied by or through the Service are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of any of such by the Government constitutes acknowledgment of CrystaLink's, its Service Provider's or suppliers' proprietary rights in them. Applicable Laws.
15. The Service is controlled and operated by CrystaLink from its offices within the United States. CrystaLink makes no representation that the materials available through the Service are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export any software, materials, or other products supplied by or through the Service in violation of U.S. export laws and regulations. Arbitration.
16. Any dispute or claim arising out of or in connection with this Agreement shall be finally settled by binding arbitration in the County of Jefferson, Kentucky, U.S.A. under the Commercial Rules of Arbitration of the American Arbitration Association by one arbitrator appointed in accordance with said rules. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision. The arbitration shall be governed by the United States Arbitration Act. The arbitrator is not empowered to award damages in excess of direct damages, subject to the cap on damages set forth herein, and each party irrevocably waives any claim thereto. The arbitrator shall apply the substantive laws of the State of Kentucky in interpreting and resolving disputes. Discovery shall be limited to the issues in dispute, and the parties shall agree upon what, if any, discovery shall be permitted. If the parties cannot agree on the form of discovery within 30 days after the appointment of the arbitrator, then there shall be neither discovery nor the issuance of subpoenas. In no event, however, shall any such discovery take more than three months. The parties, their representatives, other participants and the arbitrator shall hold the existence, content and result of the arbitration in confidence. Any action must be brought, if at all, within two (2) years from the accrual of the cause of action. Governing Law.
17. Any claim arising under or relating to this Agreement shall be governed by the internal substantive laws of the State of Kentucky and the federal courts located in venue in the courts of the State of Kentucky for all disputes and litigation arising under or relating to this Agreement. Furthermore, the terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply to this Agreement. Miscellaneous.
This Agreement constitutes the entire agreement with respect to the Service. If any provision of this Agreement is determined to be invalid, all other provisions will remain in full force and effect. CrystaLink may assign its rights and duties under this Agreement to any third party at any time without notice to You.
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