Terms and Conditions

TERMS AND CONDITIONS

Acceptance of Terms

This is a legal agreement ("Agreement") between you, the user, together with any company or other business entity you represent, if any (collectively, the "Client") and Edge Sports Sites ("ESS"). This Agreement governs the customization, set-up and leasing of ESS’s web site(s) for and to the Client. IF CLIENT DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLIENT SHALL NOT ORDER AN ESS WEB SITE.
Client acknowledges that, from time to time, it may be necessary for ESS to update or revise certain provisions of this Agreement. By ordering an ESS web site and accepting this Agreement, Client agrees that ESS may change the terms of the Agreement at its sole discretion without specific notice to Client. If Client does not agree to the changes proposed by ESS, or to any terms in this Agreement, Client's sole and exclusive remedy is to cancel their web site(s). Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current web sites shall be subject to this Agreement.
Client acknowledges that by agreeing to this Agreement at the time of ordering their web site(s), Client automatically agrees to this Agreement at the time of setting-up their monthly leasing fee, which typically occurs upon completion of the customization and set-up process by ESS.
No advice or information, whether oral or written, obtained by Client from ESS shall create any warranty not expressly recorded in writing in this Agreement.

“One-time Fee” and “Monthly Fee”
Client acknowledges that the “One-time Fee” represents a customization and set-up fee and is non-refundable and in no way assigns any intellectual property or ownership rights or copyrights relating to ESS’s web sites to Client. The web site(s) will remain the intellectual property of ESS throughout and after the lease period. Client will not be provided with a copy of any web site files at any time.
Client acknowledges that the “One-time Fee” relates to only one (1) web site and in the event that Client wishes to select an alternative web site after ordering their web site and/or throughout the Lease period, Client will be required to pay an additional “One-time Fee” for the alternative web site. Further, Client will be required to pay an additional “One-time Fee” for additional web site(s) Client may order.
Client acknowledges that the web site(s) will be leased from ESS and hosted by ESS. By ordering a web site and paying the “One-time Fee”, Client agrees to pay ESS the “Monthly Fee” stated at the time of ordering, which represents a monthly leasing fee ("The Lease"). Upon completion of the customization and set-up process by ESS, ESS will email the Client to inform them that this process is complete and provide the Client with an opportunity to view their customized web site(s) on ESS’s development server and provide instructions on how to set-up payment via PayPal or credit card (as accepted by PayPal) for the “Monthly Fee”. Should ESS not receive confirmation that the Client has set-up payment for the “Monthly Fee” within seven (7) calendar days from the date of the aforementioned email, ESS reserves the right to remove the customized web site(s) from ESS’s development server and store it until such time that ESS receives confirmation that the Client has set-up payment for the “Monthly fee” and that the first payment has been made. ESS will point the Client’s chosen domain name to the Client’s leased web site upon receipt of payment of the first “Monthly Fee” by Client, whether paid on a month-by-month basis or as a lump sum annual payment when offered by ESS.
ESS may, from time to time, offer the Client the opportunity to pay the “Monthly Fee” as a lump sum annual fee for a period of twelve (12) months. Client acknowledges that both monthly and annual payments are non-refundable in whole or in part.
Client can choose to pay the “One-time Fee” online via PayPal or credit card (as accepted by PayPal). ESS will accept a check or money order payment; however, the check or money order must be accepted by USA banks. Client is responsible for paying all international check or money order clearance fees, at the sole discretion of ESS.
Client can choose to pay the “Monthly Fee” using PayPal or credit card (as accepted by PayPal). ESS will accept a check (cheque) or money order payment for annual lump sum payments only (i.e. 12 monthly payments); however, the check (cheque) or money order must be accepted by USA banks. Client is responsible for paying all international check or money order clearance fees, at the sole discretion of ESS.
ESS reserves the right to remove the customized web site(s) from the hosting server in the event that ESS does not receive payments on the scheduled payment dates. ESS accepts no responsibility or liability for any loss caused to Client when Client’s web site(s) is removed from the hosting server due to non-payment or late-payment of fees.

Lease Period
The Lease period commences upon receipt of payment of the first “Monthly Fee” by Client, whether paid on a month-by-month basis or as a lump sum annual payment when offered by ESS.

Compatibility
Client acknowledges and understands that ESS’ web sites are built using Adobe Flash and that Adobe Flash Player is required to be installed on the user’s hardware (i.e. PC or laptop) to be able to view the leased web sites. ESS warrants that the leased web sites will fully function in the following web browsers and operating systems when the latest version of Adobe Flash Player is installed on the user’s hardware:
1. Internet Explorer;
2. Firefox;
3. Netscape;
on,
1. Windows XP;
2. Windows 2000;
3. Windows 98;
4. Windows Vista.
Client is responsible for testing the web site(s) they would like to lease in the web browser(s) and operating system(s) they would like their web site(s) to fully function in, prior to ordering their web site(s). Should the web site(s) not fully function, Client should not place an order and contact ESS to report any issues.

Search Engine Submission
ESS will submit Client’s leased web site domain name to the following search engines upon receipt of payment of the first “Monthly Fee” by Client, whether paid on a month-by-month basis or as a lump sum annual payment when offered by ESS; however, ESS cannot provide Client with any guarantees or assurances that any of the search engines will list Client’s web site(s):
1. Google
2. Yahoo! Search
3. MSN

Web Site Customization
The Client’s leased web site(s) will consist of seven (7) pages, including a photos page and a contact page. As a part of the set-up and customization process, ESS will customize the Client’s selected web site(s) by:
1. replacing all photograph images, labeled “Your Image” on the selected web site(s), with images provided by Client;
2. adding up to twenty (20) photograph images to the photo gallery, as provided by Client;
3. cropping, compressing, resizing and cutting-out Client’s provided images to fit within the selected web site(s) (maximum of one (1) cut-out image);
4. replacing the “yourdomainname.com” or “domainname.com” text with Client’s selected domain name;
5. replacing the “yourname” text with Client’s provided name;
6. replacing the navigation button text with Client’s selected page names. The maximum number of letters for the name of each page shall not exceed twelve (12);
7. adding one video provided by client with a maximum file size of 5 megabites in .avi format;
8. up to 30 minutes of phone or email consultation to assist client in producing and sending client content to ESS.

Not included in the set-up and customization process, or “Monthly Fee” is:
1. changing any colors on any of the web site pages;
2. changing the format, layout, color scheme, “look and feel” and structure of any of the web site pages;
3. changing the sequence of any of the pages throughout the web site. For example, the page that displays the photograph gallery will remain the forth (4th) page and the page that contains the contact information will remain the seventh (7th);
4. incorporation of any additional logos, banners, graphics, video or material provided by Client.
Revisions to the format, layout, color scheme, “look and feel” and structure of each of the seven (7) pages and the addition or deletion of web site pages can be requested by Client and quoted separately by ESS at ESS’s hourly rate of $80USD per hour (Notice: this rate is subject to change at any time).
ESS reserves the right to make minor adjustments to the layout of the web site(s) during the set-up and customization process and throughout the Lease period to ensure the approved content provided by Client (“Client Content”) can be incorporated.
The customization and set-up process shall not exceed 30 business days from receipt of all required Client Content and Client’s chosen domain name, as applicable. Should the customization and set-up process exceed 30 business days from receipt of all required Client Content and Client’s chosen domain name, as applicable, Client shall be entitled to a cancellation of the web site(s) and full refund of the “One-time Fee”.

Monthly Web Site Updates
Included as a part of the “Monthly Fee” is up to half an hour (½ hour) per month of updates to Client’s photo gallery images by ESS, if requested by Client. Each ½ hour of updates expires at the end of each month and does not rollover into the next month(s), regardless of whether or not Client pays “Monthly Fee” on a monthly basis or on an annual basis. ESS does not offer Client any credit (time or monetary) should Client decide not to request updates to Client’s photo gallery images. Updates to all other photo images throughout Client’s leased web site, including, without limitation, cut-out or animated photo images, are not included as a part of the “Monthly Fee”; however, can be requested by Client and quoted separately by ESS. Client can update the body text on all pages using ESS’ browser-based text editor. Updates to all other text throughout Client’s web site, including, without limitation, button text, heading text, “yourname”, Client’s Domain Name or footer text cannot be edited by Client using ESS’ browser-based text editor and are not included as a part of the “Monthly Fee”; however, can be requested by Client and quoted separately by ESS.

Web Site Set-Up/Privacy Policy
In order for ESS to set-up and customize a web site for a Client, Client will be required to provide specific information about Client and/or Client’s business. If Client chooses to lease a web site from ESS, Client agrees to provide true, accurate and complete information and to refrain from impersonating or falsely representing Client's affiliation with any person or entity. Client shall maintain a valid email address at all times. Client shall be responsible for maintaining the confidentiality of Client’s login names and passwords and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such login names and passwords. Clients shall be responsible for all actions by such users, including without limitation family, friends, former employees and former partners, and shall indemnify ESS for such actions as set forth in this section.
Any information supplied by Client upon ordering a web site and any other information about Client and/or Client's business (collectively, "Client Data") is subject to ESS's Privacy Policy. ESS will send Client newsletters and special offers, if subscribed for newsletters and special offers. Regardless of whether or not Client is subscribed to newsletters and special offers, ESS reserves the right to email Client regarding Client’s web site(s), any improvements or revisions to ESS’s products and services, important policy changes or subscription renewal notices. For more information, Clients may review the ESS Privacy Policy which is hereby incorporated into this Agreement.

Proprietary Rights to Client Content
ESS does not claim ownership of the Client Content that Client provides to ESS and/or places on the Client’s web site(s). However, Client grants ESS a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Client Content on ESS’s web site and in ESS's promotional or advertising materials (only for the limited purpose of promoting ESS’s products and services), and (ii) sublicense to third parties such Client Content to the extent necessary for the creation and maintenance of, in part or in whole, such web sites. No compensation will be paid or due Client with respect to ESS's or its sublicensee's use of the materials as licensed above. By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through any Client web site(s), Client warrants and represents that Client owns or otherwise controls the rights necessary to do so and to grant ESS the license set forth above, and, pursuant to the terms set forth in this agreement, Client will defend and indemnify ESS and its suppliers from any third party claim related to a breach of any of the foregoing representations and warranties.

Copyright and Trademark Notices
All materials of ESS’s web sites, as well as the structure, layout and “look and feel” of the web sites, are owned and copyrighted or licensed by ESS, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials of the web sites, which includes the ESS web site (and any successor web sites or additional web sites or any co-branded web sites), and/or screenshots, is permitted without the written permission of ESS. Any rights not expressly granted herein are reserved. All leased web sites will contain the wording “Copyright © clientdomainname.com. All rights reserved”. Client acknowledges that this statement relates only to Client Content and does not waive the copyright provisions set forth in this Agreement.
ESS, edgesportssites.com, EdgeSportsSites, the Edge Sports Sites logo, and other ESS logos and product and service names are trademarks of Edge Sports Sites (the "ESS Marks"). Client agrees not to display or use the ESS Marks in any manner whatsoever without ESS's prior permission. From time to time ESS may offer a limited license to Clients to display ESS Marks after ESS in its sole discretion confers such distinctions to the applicable Clients. However, ESS reserves the right to withdraw such logos or symbols and delete them in its sole discretion for any reason. All leased web sites will contain the EdgeSportsSites.com wording and/or logo with link to ESS’s website at the bottom of each page.

Notification of Claims of Copyright Infringement
The Digital Millennium Copyright Act ("DMCA") sets forth the law regarding the use of copyrighted materials on the Internet. In accordance with the DMCA, ESS has appointed an agent to receive notifications of claims of copyright infringement regarding materials available or accessible on, through, or in connection with edgesportssites.com or our leased web sites. Any person authorized to act for a copyright owner may notify ESS of such claims by contacting the following agent:

By Mail:
KeytLaw
2415 East Camelback Road
Suite 700
Phoenix,
Arizona 85016

By Facsimile: 602-906-1081

By Email: rk@keytlaw.com

PLEASE NOTE: The designated copyright agent is appointed solely for the purpose of receiving notices of copyright claims submitted pursuant to the DMCA. No other notices or communications should be forwarded to the designated copyright agent.
The DMCA contains very specific guidelines as to what proper notification of claimed infringement must contain. Copyright owners may obtain a copy of the DMCA, including these guidelines, by visiting the web site of the U. S. Copyright Office.
ESS is not required to respond to notices that do not meet the requirements of the DMCA. Copyright owners should be aware that there are substantial penalties for false claims and that ESS will actively refer complainants who use the DMCA for improper purposes to relevant law enforcement agencies.
In the event that ESS must remove, or disable access to, material on Client’s leased web site that is alleged to infringe another’s copyright under the DMCA, Client acknowledges and agrees that ESS may do so by removing the subject material and disabling access to Client’s entire web site. Client acknowledges that Client is responsible for all Client Content posted on Client’s leased web site, regardless of whether the material is uploaded by ESS or Client, and agrees to reimburse ESS all legal costs associated with receiving and processing copyright claims relating to Client Content on Client’s leased web site.
The DMCA provides Client with the opportunity to file a Counter Notification, in the event that ESS must remove, or disable access to, material on Client’s leased web site. The Counter Notification must comply with the DMCA and provide the following information as a minimum:

Physical or electronic signature of Client (i.e. allegedly infringing web site’s renter).
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
A statement under penalty of perjury that Client has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
The Client's name, address, and telephone number, and a statement that Client consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if Client’s address is outside of the United States, Maricopa County, Arizona, and that Client will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Email the counter notification to rk@keytlaw.com or fax it to 602-906-1081.

Internet Domain Names
As part of the “One-time Fee” paid by Client, ESS will purchase one (1) Domain Name chosen by Client for use as Client’s web site address. Client may select any available .com, .net, .info, .co.uk, .eu, .us, .org or .biz Domain Name with an annual registration fee of no greater than $20 USD. All other available Domain Names shall be purchased by Client. For the convenience of Client, ESS provides a Domain Name search tool on ESS’ web site. Client acknowledges that ESS’ Domain Name search tool does not guaranty the availability or non-availability of Domain Names; nor does it filter the results to display only non-Premium Domain Names (for the purpose of this Agreement, a Premium Domain Name is a Domain Name with an annual registration fee greater than $20 USD). In the event that ESS’ Domain Name search tool shows an available Domain Name that is a Premium Domain Name, ESS will contact Client and offer Client the opportunity to choose another available, non-Premium Domain Name or purchase the Premium Domain Name themselves at Client’s own cost.
ESS will register the Client’s Domain Name in ESS’s name. Client hereby authorizes ESS to list itself as the billing contact, technical contact and name servers in connection with Client's Domain Name and to take any actions ESS deems appropriate in those capacities. However, should Client cancel its web site(s) at any time, Client may request that the registration be transferred to Client. In such circumstances, ESS will request personal information from Client to complete this transfer. Should Client cancel its web site(s) and not request that the Domain Name be transferred to Client, ESS will not renew the Domain Name registration at the end of the annual renewal period and the Domain Name will then become available for others to purchase. After such time, ESS will not be responsible to forward any notices, emails or other correspondence to Client or to take any other actions in connection with Client's Domain Name. Should Client decide to cancel its web site(s) and request that the Domain Name be transferred to Client and provides ESS with sufficient information to complete this transfer, Client will be responsible for renewing the Domain Name registration at the end of the annual renewal period, including paying all applicable fees. After such time, ESS will not be responsible to forward any notices, emails or other correspondence to Client or to take any other actions in connection with Client's Domain Name. Additionally, in the event that a Client’s web site(s) is suspended or cancelled by ESS for lack of payment or any other reason, ESS shall not renew any Domain Names that may become due for renewal during the suspension period or after cancellation of the web site(s). In such circumstances, Client acknowledges that the Client’s Domain Name will become available for others to purchase.
ESS has chosen independent Third Party Domain Name Vendors ("TPDNVs") to provide domain name registration services. Client hereby authorizes ESS to acquire Client's selected Domain Name from TPDNVs. In order to receive a Domain Name, Client must agree and remain agreeable through the use of the Domain Name, to the TPDNVs' terms of service which the TPDNVs may change at any time in their sole discretion to the TPDNVs' terms of service. Client understands that should Client decide to cancel its web site(s) and request that the Domain Name be transferred to Client and provides ESS with sufficient information to complete this transfer, Client is creating a separate contractual relationship between Client and the TPDNVs, and that Client, and not ESS, is responsible for all liability, and obligations in connection with that relationship.
If, after requesting the Domain Name that is included as a part of the “One-time Fee”, Client requests that ESS deletes the registered Domain Name and requests ESS registers a different Domain Name, Client will be required to pay ESS for the resulting Domain Name registration fees.
Client may choose to purchase their own Domain Name or use a Domain Name that is already registered to Client. In such circumstances, Client will be responsible for contacting their domain name vendor and pointing Client domain name to Client’s leased ESS web site. ESS is not responsible for contacting Client’s Domain Name vendor. Should Client decide to purchase their own Domain Name or use Client’s own Domain Name, ESS will not provide Client with any cost savings on the “One-time Fee” or “Monthly Fee”.

Email Address
As a part of the set-up and customization process, ESS will provide Client with one (1) email address utilizing their chosen Domain Name (i.e. clientname@domainname.com); provided ESS registers Client’s Domain Name or registration is transferred to ESS. Should Client decide to register or use their own Domain Name, Client will be responsible for creating and paying for their own email address and email hosting. All emails sent to Client’s email address shall be redirected to an email address of Client’s choice (i.e. Client’s hotmail or yahoo email address). Client acknowledges that when replying to messages sent to Client’s new email address (i.e. clientname@domainname.com), the reply message will be sent from Client’s designated email address (i.e. clientname@hotmail.com). Client will be able to receive but not send messages from Client’s new email address.

Web Site Maintenance
Scheduled maintenance to the leased web site(s) will take place from time to time. ESS will attempt to ensure all scheduled maintenance takes place at times which will affect the fewest Clients. If scheduled maintenance requires the service to be offline for more than 60 minutes, ESS will attempt to advise Client of the details of the scheduled maintenance via email at least 24 hours in advance of the maintenance.
Unscheduled maintenance may also be required from time to time. If unscheduled maintenance requires the Client’s leased web site(s) to be offline for more than 60 minutes, ESS will attempt to advise Client of the details of the unscheduled maintenance via email after the maintenance has been completed. Any unplanned or unannounced interruptions in the services shall not require a remedy unless such unplanned or unannounced interruptions exceed 48 consecutive hours in any 30 day period, in which case Client agrees that the exclusive remedy shall be a credit or 2 days of “Monthly Fee”, and that such credit shall exclusively be applied as an extension of the renewal date. If the interruption is caused by Client or any of Client’s agents or customers then Client shall pay all costs to reinstate and/or repair the server and will not be entitled to any leasing credit.

ESS Support Services
ESS offers email support services to Client. Clients may submit an unlimited amount of support related questions or concerns relating to their leased web sites by email through ESS’s on-line contact page, available on the ESS web site (www.edgesportssites.com/contact).

Fee Changes
ESS reserves the right to change any fees (which includes, but is not limited to, increasing “Monthly Fee”, “One-time Fee” and charging a fee for upgrades and/or a service for which ESS does not currently charge a fee) at any time, provided, however, that ESS will provide Client with reasonable notice prior to making any fee changes. If Client finds any change to the fees to be unacceptable, Client is free to cancel their web site at any time; however, ESS will not refund any remaining portion of Client’s pre-paid fees when Client cancels their web site(s).

Client Usage Limitations
Client acknowledges that ESS may, from time to time, establish general practices and limits concerning the use of the leased web site(s), including without limitation, (a) maximum limits on bandwidth usage that will be allotted to Client, (b) maximum limits on storage space, (c) the maximum number of web sites leased per Client, (d) maximum number of photographs or other data per web site, and (e) maximum limits on the number of pages within each web site. Client agrees that ESS has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by ESS. ESS recommends that a copy of all information, data, text or other materials (Client Content) be retained by Client at all times. ESS is not obligated to return any Client Content to Client upon termination of this Agreement or at the end of the lease term.
Client's right to use the leased web site(s) is personal to Client and Client's company and its employees (if applicable). Client, and not ESS, is entirely responsible for all information, data, text or other materials (Client Content). Client, and not ESS, is also responsible for compliance with all laws, regulations and ordinances connected with all aspects of Client's use of the leased web site(s). Client shall not use the leased web site(s) for any illegal purpose in violation of any local, state, federal or international law. Client must provide all required and appropriate warnings, information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate actions (collectively, "Information and Actions") in connection with Client's use of the leased web site(s). If the leased web site(s) does not provide adequate facility or features for Client to provide such Information and Actions, then Client shall not order a web site.

ESS does not control or monitor the Client Content posted by Client and as such, does not guarantee the accuracy, integrity or quality of such content. Further, ESS does not review the Client Content provided to ESS for ESS to incorporate into Client’s web site(s) and as such, does not guarantee the accuracy, integrity or quality of such content. ESS reserves the right, but is not obligated to review the Client Content and to refuse or remove any such materials at its sole discretion, without notice at any time. ESS also reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or remove any information or materials, in whole or in part, from the Client Content at ESS's sole discretion. With respect to the Client Content on the Client’s web site(s), Client agrees not to:
1. post, upload or otherwise transmit any content which is misleading to others or impersonate any person or entity or falsely state or otherwise misrepresent Client's affiliation with a person or entity to others, including, but not limited to, teams, organizations and sponsors;
2. post, upload or otherwise transmit any content that is threatening, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another's privacy, hateful, or racially and ethnically objectionable;
3. post, upload or otherwise transmit any content that Client does not have a right to post and transmit under any law or under contractual or fiduciary relationships (such as information learned or disclosed as part of employment relationships or under nondisclosure agreements);
4. post, upload or otherwise transmit any content that violates the intellectual property rights of another including, but not limited to any patent, trademark, trade secret, copyright or other proprietary rights of another;
5. post, upload or otherwise transmit any content, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary rights of any party;
6. post, upload or otherwise transmit any materials that contain 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 and/or attempt to access the accounts of others, or attempt to penetrate security measures of ESS, its vendors or suppliers or other entities' systems ("hacking"), whether or not the intrusion results in corruption or loss of data;
7. post, upload or otherwise transmit any materials that impose an unreasonable or disproportionately large load on ESS's infrastructure that exceed the Usage Limitations;
8. post, upload or transmit any unsolicited or unauthorized advertising, promotional materials, "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
9. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities Exchange Commission, any rules of 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;
10. 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;
11. sell, distribute, disseminate or link to any sites for marketing, sales, distribution of: firearms, explosives, ammunition, tobacco products and any other products or services that (i) Client cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via the Client web site could cause ESS to violate any law, statute or regulation; or
12. post or disclose any personal or private information or images about children or any third party without their consent (or a parent's consent in the case of a minor).
ESS may remove Client's web site(s) from ESS’s Third Party Hosting Servers for failure to comply with the above listed rules of Client Conduct.
ESS reserves the right to reject Client’s use of ESS’s web sites if ESS determines (at our sole discretion) that the Client’s proposed use of ESS’s web site(s) is unsuitable for publication on our Third Party Hosting Servers.
ESS reserves the right to refuse the lease of a web site to a Client for any reason. If ESS accepts an online order and the proposed use of the site is thereafter determined (at our sole discretion) to be unsuitable, ESS would cease the set-up and customization of the web site and will not upload it to ESS’s Third Party Hosting Server. All “One-time Fees” are non-fundable in whole or in part. Should ESS deem the Client’s use of the web site(s) to be unsuitable after the set-up and customization process (i.e. the Client adds or changes their own text), ESS reserves the right to request that such changes be revised by the Client and/or remove the web site(s) from the Third Party Hosting Server with immediate effect.
In the event that the hosting of the Client’s web site(s) becomes harmful to ESS’s business, or causes an overload to ESS’s Third Party Hosting Server(s), or the ISP network, that materially and adversely affects ESS’s business or ESS’s ability to serve other clients, in ESS’s sole judgment, ESS reserves the right to take reasonable immediate action to eliminate the harm by temporarily or permanently disabling Client’s web site(s).

DISCLAIMER OF WARRANTIES
CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT:
(A) CLIENT'S USE OF THE LEASED WEB SITE(S) IS AT CLIENT'S SOLE RISK. ESS AND ITS SUPPLIERS PROVIDE THE WEB SITE(S), INCLUDING ALL GRAPHICS, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(B) ESS AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE WEB SITES WILL MEET CLIENT'S REQUIREMENTS, (ii) THE WEB SITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, LEASED OR OBTAINED BY CLIENT WILL MEET CLIENT'S EXPECTATIONS.

LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL ESS AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF ESS OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE LEASED WEB SITE(S), (B) THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, (C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME US STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO CLIENT. IN NO EVENT SHALL ESS'S AGGREGATE LIABILITY TO CLIENT AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT CLIENT ACTUALLY PAYS TO ESS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $500.00, WHICHEVER IS LESS. Without limiting the foregoing, neither ESS nor its suppliers is responsible for any Client Data or Client Content residing on the hosting servers or on ESS’s hardware or ESS's suppliers' hardware. Client is responsible for backing-up Client Data and Client Content and information that may reside on the leased web site(s) or ESS's suppliers' hardware, whether or not such information is uploaded to the web site(s) by ESS. It is Client's responsibility to take the necessary steps to ensure that Client's primary means of business is maintained (if applicable).

Additional Representations and Warranties
Client represents, warrants, and covenants that (a) Client has the power and authority to enter into this Agreement; (b) Client is at least thirteen (13) years of age; and, (c) Client will only use their leased web site(s) in accordance with these Terms and Conditions. Client further represents that Client is and will at all times be, in full compliance with all applicable laws, regulations, rules and ordinances (collectively, "Laws") regarding your business, the sale and use of any products, and as otherwise related to this Agreement.

Indemnification
Client agrees to indemnify and hold ESS and its suppliers, affiliates, partners, subsidiaries and employees (collectively, the "Indemnified Parties") harmless from any and all claims and demands, losses, liability costs and expenses (including, but not limited to, reasonable attorneys' fees), incurred by an Indemnified Party arising out of or related to (i) Client's breach of this Agreement; (ii) any information (including but not limited to Client Content, Client Data and Client's publicly posted information) submitted, posted, or otherwise provided by Client at the Client web site(s) and/or to ESS and/or its affiliates; (iii) any dispute or litigation between an Indemnified Party and a third party caused by Client's actions; and (iv) Client's negligence or violation or alleged violations of any rights of another; (v) any third party claim against the Indemnified Party for: (1) personal injury or property damage to the extent such Liabilities arise out of or result from the negligence or other tortuous conduct of Customer; or (2) the breach of any representation or warranty made by Customer; or (3) any claim by a customer of Customer against any Indemnified Party to the extent such Liabilities arise out of or result from Customer's business dealings with such Customer, including, without limitation the provision of any products or services to such Customer. These obligations will survive any termination of Client's relationship with ESS or Client's use of their leased web site(s). To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of ESS and/or its suppliers, affiliates, partners, subsidiaries and employees.
ESS is not liable for any:
1. suspension or loss of the services, except to the limited extent that a remedy is provided under this Agreement;
2. interruption of business;
3. disciplinary action taken against Client by governing bodies in relation to breach of rules including without limitation, soliciting and accepting sponsorship or financial gain in any form if not permitted to do so;
4. third party claims relating to infringement of intellectual property rights relating to Client Content, whether uploaded to Client web site(s) by ESS or by Client;
5. access delays or access interruptions to Client’s web site(s);
6. loss or liability resulting from data delivery, non-delivery, mis-delivery, corruption, destruction or other modification;
7. events beyond the control of ESS;
8. loss or liability resulting from the unauthorized use or misuse of Client’s login name or password;
9. indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort, (including negligence), or otherwise.
ESS will host Client’s leased web site(s) using Third Party Hosting Servers (TPHS). ESS accept no liability of any loss, damage or site downtime Client incurs due to TPHS issues that are out of ESS’s control.
Client shall release, indemnify, and hold ESS and its contractors, agents, employees, officers, directors and affiliates harmless from all liabilities, claims and expenses whatsoever relating to Client’s use of the leased web site(s), including if a Domain Name or other intellectual property right dispute arises with any third party.

Modification of the service provided by ESS
ESS reserves the right, at its sole discretion, to, at any time, modify, or discontinue the set-up, customization and leasing of web sites (collectively, the “Service”), temporarily or permanently, (or any part thereof), including the imposition of limits on certain features and services or restriction of access to parts or all of the service, with or without notice. Client agrees that ESS shall not be liable to Client or to any third party for any modification, suspension or discontinuance of the service. Client further agrees that ESS shall have the right to remove any feature from the Client web site(s), with or without notice to Client, at any time at ESS's sole discretion, if ESS discontinues offering the feature for any reason. If Client does not agree to any such modifications, Client's sole and exclusive remedy is to cancel Client's web site(s).

Termination/Cancellation of Client’s web site(s)
Either Client or ESS may terminate or cancel Client's web site(s) (or any part of the Service) at any time, but ESS will not refund any pre-paid fees upon such termination or cancellation.
Termination by Client
Client may cancel its web site(s) by notifying ESS via email. Client will receive a cancellation confirmation via email after ESS processes Client's cancellation request. ESS reserves the right to collect fees, surcharges or costs incurred before Client cancels its web site(s).
Client must provide ESS with the following information in order for ESS to process the cancellation:
1. The domain name of the Client’s web site
2. Client's username and password
3. Client's email address
4. Client's reason for canceling the web site
Termination by ESS
ESS may terminate Client's web site(s) if ESS determines, in ESS's sole discretion, to discontinue offering the service. Additionally, ESS, in its sole discretion, may terminate Client's web site(s) for any reason, including, without limitation, (i) if Client breaches this Agreement, (ii) if ESS is unable to verify or authenticate any information that Client provides to ESS, or (iii) if ESS believes that Client has violated or acted inconsistently with the spirit of this Agreement. If ESS terminates Client's web site(s) pursuant to (i), (ii) or (iii) above, Client will forfeit all credits, pre-paid fees, and any other amounts accruing to Client, if any, and ESS shall not be required to refund, redeem, or pay amounts to Client upon such termination.
Effect of Termination
Upon termination of Client's web site(s) for any reason, ESS reserves the right to (a) collect all charges, fees, commitments and obligations incurred or accrued by Client; (b) delete any Client Content, listings, messages or other information in connection with Client's web site(s); (c) prohibit Client's access to Client's web site(s), including without limitation by deactivating Client's password; and (d) refuse Client future access to the service. In no event shall ESS be required to refund, redeem, or pay amounts to Client upon termination of the web site(s) or return any Client Content.
Client understands and agrees that the cancellation of Client's web site(s) is Client's sole right and remedy with respect to any dispute with ESS. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this Agreement or ESS's enforcement or application of any such term; (2) any policy or practice of ESS, including ESS's Privacy Policy and Copyright clauses, or ESS's enforcement or application of these policies; (3) Client’s ability to access or use the service or Client's web site(s); or (4) the amount or type of fees, surcharges, applicable taxes, billing methods or change to the fees, applicable taxes, surcharges or billing methods, if any.

Reactivation of Client Web Site
ESS will store Client’s web site files for a period of one (1) year after the date of Termination/Cancelation. During this one year period, Client is eligible to have ESS reactivate the web site subject to the following:
1. Client holds registration to the same Domain Name as displayed on Client’s web site and provides ESS with all required information and permission to transfer Domain Name to ESS;
2. ESS receives a reactivation fee of $80USD (fee is subject to change at any time);
3. ESS receives payment of the first Monthly Fee at current prices;
4. Client agrees that there will be no customization or revisions to the web site from the time web site was terminated/cancelled.
If the above conditions have not been met, ESS reserves the right to increase the reactivation fee or deny reactivation.

Notice
Statements, notices and other communications to Client may be made by email, or other reasonable means. Client shall be solely responsible for updating the email address registered with ESS. ESS shall not be responsible for any undelivered notices caused by Client's failure to update this information.

Arbitration/ Jurisdiction
Client agrees that any dispute or claim arising out of or related to the service or this Agreement, or the interpretation, making, performance, breach or termination thereof, shall be finally settled by binding arbitration by one arbitrator appointed in accordance with said Rules in Maricopa County, Arizona, USA. This Agreement shall be governed and construed in accordance with the laws of the State of Arizona. The proceedings shall be conducted and all evidence shall be offered in the English language. Client agrees that any claim against ESS must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be barred forever.
A printed version of this Agreement shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

General
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. ESS's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Client shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without prior written approval of ESS, and any such attempted assignment shall be void. ESS shall have the right to freely assign this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent or notice of Client. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and permitted assigns. This Agreement sets forth the entire understanding and agreement between ESS and Client with respect to the subject matter hereof. The section and subsection titles in the Agreement are for convenience only and have no legal or contractual effect. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures.

Violations
Please report any violations of this Agreement to ESS immediately.

Independent Review
CLIENT ACKNOWLEDGES THAT CLIENT HAS READ THIS AGREEMENT AND ALL RELATED SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT CLIENT AGREES TO ALL ITS TERMS AND CONDITIONS. CLIENT HAS INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.

Last updated June 8, 2008