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Andy's Web Tools Subscriber Terms
|ACCEPTANCE OF TERMS
TireSwing Systems reserves the right, in its sole discretion, to change, modify, add or remove all or part of these Terms, including but not limited to any term, applicable fee, policy, or guideline, at any time without notice or acceptance by You. Regardless of whether TireSwing Systems has provided You individual notice, Your continued use of the Service following TireSwing Systems' notice or posting of changed Terms will constitute Your acceptance of such changes. It is Your responsibility to check regularly for changes to the Terms and ensure that any contact information You provide to TireSwing Systems is updated and correct.
If You are registering a new domain name in conjunction with the Service, Your use of the domain name is also subject to the same terms and conditions.
Unless explicitly stated otherwise, any new features that augments or enhances the current Service, including the release of new Service resources, shall be subject to these Terms. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any fees associated with such access. You are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for Your access to and use of the Service and any Software, and for all related fees.
Except for the rights expressly granted herein, this Agreement does not transfer from TireSwing Systems to You any TireSwing Systems developed, licensed or owned technology, and all rights, title, and interest in and to such technology will remain solely with TireSwing Systems. The parties agree that they will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the other party.
Notwithstanding anything to the contrary in this Agreement, You will not attempt to prohibit or enjoin TireSwing Systems at any time from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of TireSwing Systems
TireSwing Systems may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act, and You expressly authorize TireSwing Systems to comply with any and all lawful notices, subpoenas, court orders or warrants without prior notice to You.
You will not use TireSwing Systems's name or any language, pictures or symbols which could, in TireSwing Systems's sole judgment, imply TireSwing Systems's identity in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without TireSwing Systems's prior written consent. You agree that any and all press releases and other public announcements related to this Agreement and subsequent transactions between TireSwing Systems and You, including the method and timing of such announcements, must be approved in advance by TireSwing Systems in writing. TireSwing Systems reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Your obligation regarding public announcements shall be a material breach of these Terms.
TireSwing Systems, Andy's Web Tools, and other TireSwing Systems product and service names, and all of their related logos, are each trademarks of TireSwing Systems Inc. (the "TireSwing Systems Marks"). Without TireSwing Systems's prior written permission, you agree not to display or use in any manner, the TireSwing Systems Marks.
Unless modified in accordance with Section 4.6, You will pay all fees due according to the prices and terms applicable to your Services, including option features. All installation or set-up fees and non-recurring charges, along with the first month's recurring charges, shall be due and payable within ten (10) days of initiation of Service. Thereafter, recurring fees will be charged, in advance to Your credit card. If Your credit card is invalid or You are otherwise past-due in your payments for any reason, the Service may be terminated and removed from TireSwing Systems's servers by TireSwing Systems with or without notice, and all the information contained within deleted permanently. TireSwing Systems accepts no liability for information or content that is deleted due to an invalid credit card or where Your payments are past-due. Reactivation of the Service after termination or cancellation for any reason shall require the payment of additional set up fees. In the event You fail to pay charges, TireSwing Systems may assign unpaid late balances to a collection agency for appropriate action. In the event legal action is necessary to collect on balances due, You agree to reimburse TireSwing Systems for all expenses incurred to recover sums due, including attorneys' fees and other legal expenses. You also agree to pay all current charges for the Service as well as taxes and fees assessed against You or TireSwing Systems on the charges and all late payment, interest or other fees as stated on Your bill. TireSwing Systems may modify its billing practices or late payment charges by providing You with prior written notice of the modification. TireSwing Systems in its discretion may offer discounts or special offers from time to time.
For Domain Registration, there is no refund of any unused portion of the service. You will own the domain name until the end of your prepaid term.
TireSwing Systems may, upon notice required by applicable laws, at any time change the amount of or basis for determining any fee or charge or institute new fees or charges with respect to the Service. Upon renewal, as provided in Section 5.1, the prices charged may be changed without notice to the then prevailing price for the Services.
You shall pay or otherwise be responsible for all federal, state or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges (hereinafter "Tax") imposed on, or with respect to, the Services under this Agreement.
TERM AND TERMINATION
The initial term of this Agreement and these Terms will commence on the date that You click the "I AGREE" button to these Terms (or the first date on which you use the Service, whichever comes first) and will remain effective for the period of time corresponding to the plan You select during the Registration Process ("Initial Term"). If You wish to terminate the Services at the end of the Initial Term or any subsequent term to which you have agreed ("Renewal Term"), you must log on to your account, access the control panel at http://andyswebtools.net and follow the instructions. Neither U.S. mail nor email nor phone notification shall be acceptable. If You fail to notify TireSwing Systems of Your intent not to renew, this Agreement will be automatically renewed for a month-to-month period, or for six months for invoiced accounts. If You fail to cancel the services as set forth herein, this Agreement will be renewed for the Renewal Term at the then-current rates and fees. Except as set forth in these Terms, neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its Terms.
Cancellation/Termination by You
You may cancel Your Service and terminate these Terms at any time. If You cancel the Service before the end of the Initial or Renewal Term, Your Service and access to the Service will be discontinued upon the end of your term or immediately at your request. No refund will be provided for any payments You have made.
If You registered for a new domain name in conjunction with Your Service, and cancel before You have paid your second monthly payment without disputing such charge with either your credit card company or TireSwing Systems, TireSwing Systems reserves the right to request the domain name provider to remove the domain name from the domain name registry and/or transfer the domain name from You to TireSwing Systems. You acknowledge that where TireSwing Systems transfers such domain name to TireSwing Systems, TireSwing Systems will hold all rights of the registered domain name holder in respect of that domain name, including the right to sell the domain name to a third party (where this was a right held by You as the original registrant in respect of the relevant domain name). Additionally, Your domain name will cease working with Your Email and no longer point to Your website. After cancellation and/or expiration of this Agreement, You will no longer have access to Your website and all information contained therein may be deleted by TireSwing Systems.
If You did not register for a new domain name in conjunction with the Service, or did register for a new domain name but cancel Your Service after You have paid Your second monthly payment without disputing such charge with either your credit card company or TireSwing Systems, Your domain name will remain registered for its current term. However, Your domain name will cease working with Your Email and no longer point to Your website. After cancellation and/or expiration of this Agreement, You will no longer have access to Your website and all information contained therein may be deleted by TireSwing Systems.
Termination by TireSwing Systems
TireSwing Systems may terminate these Terms at any time upon notice to You. Notwithstanding anything to the contrary herein, TireSwing Systems may also, but has no duty to, immediately suspend or terminate Your Service, terminate Your access and password, remove Your Service from TireSwing Systems servers, or remove any Content within the Service, if TireSwing Systems concludes, in its sole discretion, that You (a) have breached, violated or acted inconsistently with the letter or spirit of these Terms, including any applicable TireSwing Systems Policy or any applicable law or regulation; (b) have provided false information as part of your Account Information, (c) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (d) are engaged in activities or sales that may damage the rights or reputation of TireSwing Systems or others (each "Termination for Cause"). Any Termination For Cause by TireSwing Systems will take effect immediately, and You expressly agree that You will not have any opportunity to cure. If Your TireSwing Systems ID is terminated for any reason, these Terms and Your access to the Service will also be terminated. Additionally, if You registered a new domain name in conjunction with Your Service, and TireSwing Systems terminates Your Service due to a Termination for Cause before You have paid your second monthly payment without disputing such charge with either your credit card company or TireSwing Systems, then TireSwing Systems reserves the right to request the domain name provider to remove the domain name from the domain name registry and/or transfer the domain name from You to TireSwing Systems. You acknowledge that where TireSwing Systems transfers such domain name to TireSwing Systems, TireSwing Systems will hold all rights of the registered domain name holder in respect of that domain name, including the right to sell the domain name to a third party (where this was a right held by You as the original registrant in respect of the relevant domain name).
Termination for Cause by Either Party
In addition to any other right to terminate set forth herein, either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from TireSwing Systems; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
Termination -- Legal Event
In the event a ruling, regulation or order issued by a judicial, legislative or regulatory body causes TireSwing Systems to believe that these Terms and/or the Service provided hereunder may be in conflict with such rules, regulations and/or orders, TireSwing Systems may suspend or terminate the Service, or terminate these Terms without liability.
Deletion of Content
Upon any termination of the Service, TireSwing Systems reserves the right to permanently delete from its servers any and all information and content contained in Your account or Service, including but not limited to order processing information, mailing lists, files, Email, and any Web pages generated by You or the Service. TireSwing Systems accepts no liability for such deleted information or content.
Responsibility for Fees
Should TireSwing Systems suspend a portion, but not all, of your Service due to a violation by You of any law, regulation or policy, You shall remain liable for all fees applicable to the Service as a whole. Should TireSwing Systems terminate your Service, You are liable for the payment of all fees applicable to the Service up to the date of termination, in addition to any early termination fees (if any).
You expressly waive any statutory or other legal protection in conflict with the provisions of this Section 5.
PRIVACY AND ACCEPTABLE USE
TireSwing Systems Policies
As part of Your Registration Process, You agree that some communications are required, such as, by way of example and not limitation, customer service messages regarding Your Service, and updates to the Service. In order to opt-out of receiving such communications You must cancel the Service. You also understand and agree that the Service may include certain communications from TireSwing Systems, such as service announcements and administrative messages, and that these communications are considered part of TireSwing Systems membership and You will not be able to opt out of receiving them.
In addition to those matters set forth in the TireSwing Systems Policies, You shall not post, transmit, re-transmit or store material on or through any of the Services which, in the sole judgment of TireSwing Systems (i) is in violation of any local, state, federal or foreign law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, "Persons") or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for Your use. You agree that you will NOT knowingly use the Service, among other things, to:
(1) upload, post, Email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(2) harm minors in any way;
(3) impersonate any person or entity, including but not limited to a TireSwing Systems official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(4) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
(5) upload, post, Email, transmit or otherwise make available any content that You do not have a right to make available 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);
(6) upload, post, Email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(7) upload, post, Email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
(8) upload, post, Email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(9) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(10) violate any applicable local, state, national or international law, including but not limited to regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(11) "stalk" or otherwise harass another;
(12) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(13) collect or store personal data about other users;
(14) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating "Crush" sites;
(15) use your home page (or directory) as storage for remote loading or as a door or signpost to another home page, whether inside or beyond TireSwing Systems GeoCities;
(16) soliciting for advertisers or sponsors, conducting raffles or contests that require any type of entry fee, displaying a sponsorship banner of any kind, including those that are generated by banner or link exchange services, displaying banners for services that provide cash or cash-equivalent prizes to users in exchange for hyperlinks to their web sites.
You agree to indemnify and hold harmless TireSwing Systems from any claims resulting from the use of the Services which damages You or any other party. TireSwing Systems reserves the right to investigate You, Your business, and/or Your owners, officers, directors, managers and other principals, Your sites, and the materials comprising the sites, at any time. These investigations will be conducted solely for TireSwing Systems's benefit, and not for Your benefit or that of any third party. If the investigation reveals any information, act or omission, which in TireSwing Systems's sole opinion, constitutes a violation of any local, state, federal or foreign law or regulation, or the TireSwing Systems Policies, TireSwing Systems may immediately shut down the site, and notify You of the action. You agree to waive any cause of action or claim You may have against TireSwing Systems for such action.
Advertising and Promotions
TireSwing Systems runs advertisements and promotions on TireSwing Systems. By creating your TireSwing Systems site, you agree that TireSwing Systems has the right to run such advertisements and promotions. The manner, mode and extent of advertising by TireSwing Systems on your TireSwing Systems is subject to change. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that TireSwing Systems shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
OWNERSHIP AND SECURITY
You will receive a password from TireSwing Systems to provide access to and use of Your Service, and You agree to keep Your password confidential. You are entirely responsible for maintaining the security of Your Service, and You are fully responsible for all activities that occur under Your Service and password, and any other actions taken in connection with the registered domain name, including any Email accounts or sub-accounts that You create for You or other individuals ("Domain Email Users"). You agree to immediately notify TireSwing Systems of any unauthorized uses of the Service or any other breaches of security. TireSwing Systems cannot and will not be liable for any loss or damage from Your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will TireSwing Systems be liable, in any way, for any acts or omissions, of You or any user of Your Service to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions.
Content and Conduct Rules
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services, links to other World Wide Web sites or resources and other materials ("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 TireSwing Systems, are entirely responsible for all Content that You upload, post, transmit or otherwise make available via the Service. The Content must comply with these Terms, including applicable TireSwing Systems Policies, and any applicable law or regulation.
TireSwing Systems does not claim ownership of the Content You place on Your Service. By submitting Content to TireSwing Systems for inclusion on Your Service, You grant TireSwing Systems and its successors and assigns, the world-wide, royalty-free, and non-exclusive license under Your copyrights and other intellectual property rights, if any, in all material and content displayed in Your website to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any TireSwing Systems property the results of search queries and comparisons conducted on TireSwing Systems, including, without limitation, searches conducted on TireSwing Systems and the Service. You also grant TireSwing Systems the right to maintain such content on TireSwing Systems's servers during the term of these Terms and to authorize the downloading and printing of such material, or any portion thereof, by end-users for their personal use. This license exists only for as long as You continue to be a Service customer and terminates when Your Service is terminated.
You acknowledge that TireSwing Systems does not prescreen Content, but that TireSwing Systems and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, TireSwing Systems and its designees shall have the right to remove any Content that violates these Terms, including any applicable TireSwing Systems Policies, is illegal, or is otherwise objectionable as determined in TireSwing Systems's sole discretion. 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.
TireSwing Systems Proprietary Rights and Software
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content available from TireSwing Systems for the Service, or contained in sponsor advertisements or information presented to You through the Service or advertisers, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by TireSwing Systems or advertisers, You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the such Content, the Service or the Software, in whole or in part.
TireSwing Systems grants to You a personal, non-transferable and non-exclusive right and license to use the object code of its Software only on a server controlled by TireSwing Systems for the sole purpose of using the Service; 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 Service. You agree not to access the Service by any means other than through the interface that is provided or authorized by TireSwing Systems for use in accessing the Service.
You may not use web pages or parts of web pages generated by means of the Software, other than Content that originates from and is proprietary to You, on any server other than the servers controlled by TireSwing Systems without TireSwing Systems's express written agreement. You also acknowledge and agree that the Software is intended for access and use by means of web browsing software, and that TireSwing Systems does not commit to support any particular browsing platform. TireSwing Systems reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to You. If any revision or modification to the Software materially changes Your ability to conduct business, Your sole remedy is to cancel Your Service.
With respect to any elective, additional software that may be made available by TireSwing Systems in connection with the Service, if You elect to download or access such additional software, You understand that You may have to agree to additional terms and conditions before You use such software.
TireSwing Systems allows You to register a domain name and to create web-based or pop Email accounts for the purpose of sending and receiving Email at the domain name registered by You. You can create Email sub-accounts for Domain Email Users so that they may send and receive Email with selected Email addresses. You expressly agree that any violation of these Terms may result in termination of any and all Email accounts, as determined in TireSwing Systems's sole discretion. TireSwing Systems expressly assumes no liability for any losses incurred due to Domain Email User activities.
TireSwing Systems DOMAINS
For TireSwing Systems Domains , the Service includes assisting You in acquiring or moving a domain name (i.e., web address) as well as providing you access to certain TireSwing Systems software to facilitate your use of the Service.
PLEASE NOTE: WITH RESPECT TO TireSwing Systems DOMAINS , NOTHING IN THE AGREEMENT OBLIGATES TireSwing Systems TO LIST OR LINK TO YOUR DOMAIN NAME OR PROVIDE WEBSITE HOSTING SERVICES IN CONNECTION WITH YOUR DOMAIN NAME BEYOND THAT PROVIDED WITHIN THE SERVICE.
If You register a new domain name in conjunction with any Service, the following terms also apply:
(a) TireSwing Systems has chosen Wild West Domains, an ICANN accredited registrar for .com, .net, .org, .biz, .info and .us domain names, to provide domain name registration services. You hereby authorize TireSwing Systems to acquire Your selected domain name from Wild West Domains. You agree that Your obligations to indemnify under "Indemnity" in these Terms includes any claim or demand associated with Your domain name, any domain name preregistration services provided through the Service, or the Tireswing terms and conditions.
(b) You will be listed as the registrant and administrative contact in connection with Your domain name, unless You choose another registrant and administrative contact. If You choose a registrant and administrative contact other than Yourself, such person(s) will be bound by this Agreement in addition to You. You hereby authorize TireSwing Systems to list itself as the technical contact and name server in connection with Your domain name and to take any actions TireSwing Systems deems appropriate in those capacities. However, upon termination of the Service, TireSwing Systems may immediately cease acting in those capacities. Upon termination of the Service, TireSwing Systems will not be responsible for forwarding any notices, Emails or other correspondence to You or taking any other actions in connection with Your domain name.
In the event, you cancel your Andy's Web Tools account but still maintain your domain, You will be solely responsible for all ongoing fees.
(c) You acknowledge that TireSwing Systems cannot guarantee the availability of the domain name you select for your use until TireSwing Systems receives confirmation of its order from Wild West Domains, which may take several business days.
Using a preexisting domain name.
If You have previously registered a domain name with another provider and want to use it with the Service, You must request that the existing registrar change the name servers for the domain name as designated by TireSwing Systems, on Your behalf.
PLEASE NOTE: THE EXISTING REGISTRAR WILL CONTINUE TO BE THE REGISTRAR FOR THAT DOMAIN AND YOU WILL CONTINUE TO BE RESPONSIBLE FOR ALL ONGOING FEES FOR THAT DOMAIN NAME WITH YOUR EXISTING PROVIDER, INCLUDING RENEWAL FEES. THE FEES PAYABLE TO TIRESWING SYSTEMS FOR THE SERVICE DO NOT INCLUDE REGISTRATION OR RENEWAL FEES OWED BY YOU TO YOUR EXISTING PROVIDER.
Transferring to TireSwing Systems's registrar of record.
Wild West Domains is TireSwing Systems's current registrar of record. If TireSwing Systems switches to another registrar of record, TireSwing Systems may at any time request in writing that You transfer the domain name registered for the Service to the new registrar of record. If You do not agree to this request within 30 days, You agree that TireSwing Systems will continue to provide the Service to You, but may, in its sole discretion, either:
(a) require You to pay an additional fee to TireSwing Systems for the Service in order to renew and maintain Your domain name with the prior registrar of record; or
(b) require You to be responsible for all fees, including any renewal fees, directly with the prior registrar of record, in which case You authorize TireSwing Systems to cease to pay for the domain name fees as part of the Service, and change the billing contact details for the domain name from TireSwing Systems to You by providing Your applicable Account Information to the prior registrar of record.
Verifying Your Domain Name Information.
TireSwing Systems may at any time request You to verify any information required to be supplied by a registrant. If You fail to respond to any such request or fail to verify any Required Information to TireSwing Systems's reasonable satisfaction, within 15 days of any such request from TireSwing Systems, TireSwing Systems may, in its sole discretion, immediately terminate Your Service and remove any of Your materials, including Your domain name, from TireSwing Systems servers.
You represent and warrant that You are not a resident of any country or affiliated with any organization prohibited to do business within the United States as defined and set forth at: http://www.bxa.doc.gov/DPL/denialist.html and http://www.treas.gov/ofac. You further represent and warrant that You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction You operate or do business. You agree to comply with all applicable U.S. and non-U.S. laws, rules, regulations and orders, including but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations. You shall be responsible for determining what laws or regulations are applicable to Your use of the Services. You shall, upon the request of TireSwing Systems, provide TireSwing Systems assurance of Your compliance with those laws. You acknowledge that TireSwing Systems exercises no control whatsoever over the content of the information passing through Your site(s) and that it is Your sole responsibility to ensure that the information You and Your users transmit and receive complies with all applicable laws and regulations and the TireSwing Systems Policies.
You are responsible for charging and collecting from Your end user customers any and all applicable taxes. If You fail to impose and/or collect any tax from end users or Your other retail customers as required herein, then, as between TireSwing Systems and You, You shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that You have agreed to pay or impose on and/or collect from end users or Your other retail customers, You agree to indemnify and hold harmless TireSwing Systems for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from TireSwing Systems due to Your failure to pay or collect and remit such tax to such authority
TireSwing Systems reserves the right to establish limitations on the extent of any support provided for the Service, and the hours at which it is available.
You agree to indemnify and hold harmless TireSwing Systems, and its parents, subsidiaries, affiliates, co-branders or other partners, officers, directors, shareholders, employees and agents, from any claim, demand, or investigation, including reasonable attorneys fees, made by any third party due to or arising out of Your Content, Your conduct, Your use of the Service, the goods or services offered or sold through Your Service, any alleged violation of these Terms, including any applicable TireSwing Systems Policies, law or regulation, or any alleged violation of any rights of another, including but not limited to Your use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Your Service. TireSwing Systems reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse Your indemnity obligations.
RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission of TireSwing Systems.
GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that TireSwing Systems may establish general practices and limits concerning use of the Service.
MODIFICATIONS TO AND DISCONTINUATION OF SERVICE
TireSwing Systems reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that TireSwing Systems shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Service.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TIRESWING SYSTEMS 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.
(b) YOUR USE OF THE SERVICE, THE SOFTWARE, AND ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
(c) THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND YOU MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS.
(d) NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT (i) THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
(f) TireSwing Systems assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TIRESWING SYSTEMS AND ITS AFFILIATES, CO-BRANDERS OR OTHER PARTNERS, OFFICERS, DIRECTORS, SHARE-HOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TIRESWING SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICE OR THE SOFTWARE; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (vi) ANY GOOD OR SERVICE OFFERED OR SOLD THROUGH THE SERVICE; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE OR SOFTWARE.
TIRESWING SYSTEMS' LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO TIRESWING SYSTEMS OVER THE COURSE OF THE EXISTING TERM. YOU ACKNOWLEDGE THAT TIRESWING SYSTEMS HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTHHEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Notices under these Terms shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to TireSwing Systems, such notices shall be addressed to email@example.com or 646 N. Riverside Drive, New Smyrna Beach, FL, USA. If to You, such notices shall be addressed to the electronic or mailing address specified when You opened Your account, or such other address as either party may give the other by notice as provided above. TireSwing Systems may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to You generally on the Service.
CHOICE OF LAW AND FORUM (LOCATION OF LAWSUIT)
These Terms and the relationship between You and TireSwing Systems shall be governed by the laws of the State of Florida without regard to its conflict of law provisions, and specifically excluding from application to these Terms that law known as the United Nations Convention on the International Sale of Goods. You and TireSwing Systems agree to submit to the personal jurisdiction of the courts located within the county of Volusia, Florida. The failure of TireSwing Systems to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inaction's of TireSwing Systems), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If TireSwing Systems is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, You may cancel the Service(s), but there shall be no liability on the part of TireSwing Systems
Except as expressly set forth herein, You may not assign Your rights or delegate Your duties under this Agreement either in whole or in part without the prior written consent of TireSwing Systems, and any attempted assignment or delegation without such consent will be void. TireSwing Systems may assign this Agreement in whole or part. TireSwing Systems also may delegate the performance of Services to third parties, including TireSwing Systems affiliates. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
RELATIONSHIP OF PARTIES
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between TireSwing Systems and You. Neither TireSwing Systems nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
NO THIRD PARTY BENEFICIARIES
TireSwing Systems and You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or Your customers.
COPYRIGHTS and COPYRIGHT AGENTS
TireSwing Systems respects the intellectual property of others, and we ask that You do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent for notice the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a description of the copyrighted work or other intellectual property that You claim has been infringed;
(c) a description of where the material that You claim is infringing is located on the site;
(d) Your address, telephone number, and Email address;
(e) a statement by You that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by You, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
INTEGRATION AND SEVERABILITY
These Terms constitute the entire agreement between You and TireSwing Systems and govern Your use of the Service, superceding any prior agreements between You and TireSwing Systems (including, but not limited to, any prior versions of these Terms) pertaining to this Service. You also may be subject to additional terms and conditions that may apply when You use affiliate or other TireSwing Systems services, third-party content or third-party software. If any provision of these Terms or incorporated documents is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect.