|All subscribers must agree to the
following terms and conditions. PLEASE READ THE TERMS CAREFULLY.
BY LOGGING IN OR OTHERWISE USING THIS WEB SITE YOU INDICATE
YOUR ACCEPTANCE AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
Member Service Agreement
This Service Agreement (the "Agreement") is by and between Service Owner ("PROVIDER") and the person acknowledging this Agreement ("Subscriber").
1. Provision of Service
PROVIDER is a transaction intermediary engaged in the facilitation of electronic commerce. PROVIDER agrees to provide Subscriber access to the electronic service (the "Service") which will permit the processing, storage, retrieval and transmission of data submitted by Subscriber (the "Subscriber Data") under the terms and conditions set forth in this Agreement. PROVIDER may change Service features and functionality, as well as the terms and conditions of this Agreement, from time to time. Notice of such changes will be posted on the PROVIDER web site, which Subscriber agrees to review periodically.
2. Grant of Software License.
PROVIDER hereby grants Subscriber a non-exclusive, limited license to use PROVIDER software (the "Software") solely in connection with Subscriber's use of the Service. Subscriber shall not, and shall not permit, assist or allow others to, reverse engineer, decompile, disassemble, re-engineer or otherwise discover or recreate or attempt to discover or recreate the Software. Subscriber shall not modify the Software, or sublicense or charge others to use or access the Software, or use the Software in any way not expressly authorized by this Agreement.
3. Fees and Charges.
Subscriber's use of the Service may result in fees as will be set forth on PROVIDER's web site. The Service fees and charges may be changed by PROVIDER from time to time by providing Subscriber with thirty (30) days prior notice posted on PROVIDER's web site. Subscriber agrees to pay said fees immediately. Subscriber shall pay on all amounts past due, that have not been disputed specifically in writing and in good faith. Subscriber shall be liable for all attorney and collection fees arising from PROVIDER's efforts to collect unpaid balances.
PROVIDER will charge fees directly to a Subscriber's credit card.
Subscriber agrees to pay all state and local sales, use, property or other taxes, except for taxes on PROVIDER's net income, which may be assessed against PROVIDER with respect to this Agreement and any services provided hereunder. At its option, PROVIDER may include such taxes in its invoices, in which event Subscriber shall pay to PROVIDER the taxes so invoiced.
PROVIDER agrees to exercise reasonable care to prevent any unauthorized person or entity from gaining access to the Subscriber Data. Both parties agree to promptly notify the other of any unauthorized access to or use of Subscriber Data or passwords. Both parties agree to use all reasonable efforts to take remedial measures to rectify any such unauthorized access. PROVIDER shall not be liable for any damages incurred by Subscriber in connection with any unauthorized access to or disclosure of Subscriber Data resulting from the actions of Subscriber, any third party, or from the failure of electronic or other security measures.
5. Limited Warranty; Limitation of Liability.
PROVIDER warrants that the Service shall be provided with due care. EXCEPT FOR THE FOREGOING, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE PROVIDED HEREUNDER. Furthermore, under no circumstances, including negligence, shall PROVIDER be liable to Subscriber or any third party for any lost profits, lost savings, or other indirect, special, cover, exemplary, incidental or consequential damages arising out of the use or inability to use the Service. In no event shall the total liability of PROVIDER for all damages, losses and causes of action whether in contract or tort, including negligence or otherwise, either jointly or severally, exceed the aggregate dollar amount paid by Subscriber to PROVIDER in the twelve (12) months prior to the claimed injury or damage.
Subscriber understands and agrees that PROVIDER is not liable for the accuracy, truthfulness or validity of any data entered by Subscriber or intermediated through the Service.
5a. Virus Protection
Subscriber understands that PROVIDER does not scan for viruses any file that Subscriber stores within any part of the PROVIDER system or transmits to a third party from PROVIDER. PROVIDER assumes no responsibility for scanning documents or attachments submitted by Subscriber.
Subscriber agrees to indemnify and hold harmless PROVIDER and its affiliates, employees, agents, licensors, successors and assigns from all damages and liability, including reasonable attorneys' fees, incurred by: (a) Subscriber's violation of its obligations under this Agreement, (b) the negligence or willful acts of Subscriber, or (c) the violation by Subscriber of PROVIDER's or any third party's rights, including, but not limited to, privacy rights, other property rights, trade secret, proprietary information, trademark, copyright or patent rights and claims for libel and slander or unfair trade practices in connection with the use or operation of the Service. Subscriber's obligation to indemnify shall survive the expiration or termination of this Agreement by either party for any reason.
Either party may cancel this agreement at any time. The following obligations will survive the termination of the Agreement for any reason: (a) indemnification; (b) obligations to make payments of amounts that become due under this Agreement before termination; and (c) any other provision hereof where the context of such provision indicates an intent that it shall survive the term or termination of this Agreement.
8. Interruption of Service
A. Service may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocations, repairs and other similar activities necessary during the operation and upgrade of Service. No reduction of payments will be made in the case of temporary interruption of Service. In no event shall PROVIDER be liable for any damages due to temporary interruption of Service.
B. PROVIDER will not be liable for interruption or delays in transmission or errors or defects in transmission or failure to transmit when caused by acts of God, fire, water, riots, acts of Government or any other causes beyond the control of PROVIDER.
C. Because Subscriber will access the Service over the public Internet, temporary disruptions of network connectivity will occur from time to time. Internet traffic is usually routed through many different Internet providers on the way to its destination. PROVIDER will not be liable for interruption or delays in transmission or errors or defects in transmission or failure to transmit when caused by any Internet provider.
A. This Agreement constitutes the entire Agreement between PROVIDER and Subscriber, and expressly supersedes any prior or contemporaneous written or oral agreements between the parties regarding the subject matter hereof, including without limitation any unilateral offer, purchase order or other similar instrument in writing. This Agreement may not be amended, altered or changed except by a written agreement signed by both parties.
B. In the event that any court having jurisdiction shall determine that any provision contained in the Agreement is unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.
C. Subscriber's rights in this Agreement are personal and are not assignable. PROVIDER may assign its rights and obligations under this Agreement to third parties.
D. This Agreement will be governed by and construed in accordance with the law of the State of Michigan. The parties agree that any claim, controversy or dispute arising out of or relating to this Agreement shall be settled by final and arbitration to be conducted by an arbitration tribunal in Detroit, Michigan in accordance with the commercial arbitration rules of the American Arbitration Association, and the decision of the arbitrator(s) shall be binding; provided that PROVIDER may bring or defend an action (1) involving allegations of personal injury to a third party, or (2) for injunctive or other equitable or extraordinary relief, in a court of law.
E. The remedies provided in this Agreement and otherwise at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy.
F. No person or entity who is not a party to this Agreement shall derive any rights whatsoever hereunder as a third party beneficiary of this Agreement.
The parties acknowledge that they have read the terms and conditions of this Agreement and hereby agree to be bound by the terms thereof. This Agreement will become effective upon Subscriber's acceptance by electronic acknowledgment on the Service web site. Each time Subscriber logs into the Service, Subscriber is reaffirming continued acceptance of this Agreement.