Terms & Conditions
Conditions of Use
Welcome to Builders Network. Builders Network, Inc. and/or its affiliates, including BuilderPro (collectively, "Builders Network") provide website features and other products and services to you when you visit or shop at BuildersNetwork.com or BuilderPro.com use Builders Network and BuilderPro products or services, use Builders Network applications for mobile such as BuilderPro, or use software provided by Builders Network in connection with any of the foregoing (collectively, "Builders Network Services"). Builders Network provides the Builders Network Services subject to the following conditions.
By using Builders Network Services, you agree to these conditions. Please read them carefully.
We offer a wide range of Builders Network Services, and sometimes additional terms may apply. When you use a Builders Network Service such as BuilderPro, you also will be subject to the guidelines, terms and agreements applicable to that Builders Network Service ("Service Terms"). If these Conditions of Use are inconsistent with the Service Terms, those Service Terms will control.
Please review our Privacy Notice, which also governs your use of Builders Network Services, to understand our practices.
II. ELECTRONIC COMMUNICATIONS
When you use any Builders Network Service, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you in a variety of ways, such as by e-mail, text, in-app push notices, or by posting notices and messages on this site or through the other Builders Network Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
The following is a non-exhaustive list of Builders Network trademarks:
(1) Builders Network;
(2) The Builders Network;
(4) Consumers Network.
In addition, graphics, logos, page headers, button icons, scripts, and service names included in or made available through any Builders Network Service are trademarks or trade dress of Builders Network in the U.S. and other countries. Builders Network's trademarks and trade dress may not be used in connection with any product or service that is not Builders Network's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Builders Network. All other trademarks not owned by Builders Network that appear in any Builders Network Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Builders Network.
Restrictions. You may not, and may not attempt to, directly or indirectly: (a) transfer, sublicense, loan, sell, assign, lease, rent, act as a service bureau, distribute or grant rights to any person or entity, (b) remove, obscure, or alter any notice of any Trademark, or other intellectual property or proprietary right appearing on or contained within Builders Network materials, (c) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Builders Network materials, including but not limited to BuilderPro, or (d) reverse engineer, disassemble, or decompile Builders Network materials, including but not limited to BuilderPro or apply any other process or procedure to derive the source code of any software included in the Builders Network materials or as part of the Builders Network Service (ie: BuilderPro). All rights granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service you have used.
IV. LICENSE AND ACCESS
Subject to your compliance with these Conditions of Use and your payment of any applicable fees, Builders Network or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Builders Network Services. This license does not include any resale or commercial use of any Builders Network Service, or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of any Builders Network Service or its contents; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Conditions of Use or any Service Terms are reserved and retained by Builders Network or its licensors, suppliers, publishers, rights holders, or other content providers. No Builders Network Service including but not limited to BuilderPro, nor any part of any Builders Network Service such as BuilderPro, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Builders Network. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Builders Network without express written consent. You may not use any meta tags or any other "hidden text" utilizing Builders Network's or BuilderPro’s name or trademarks without the express written consent of Builders Network. You may not misuse the Builders Network Services. You may use the Builders Network Services only as permitted by law. The licenses granted by Builders Network terminate if you do not comply with these Conditions of Use or any Service Terms.
V. YOUR ACCOUNT
If you use any Builders Network Service, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you are under 18, you may use the Builders Network Services only with involvement of a parent or guardian. Builders Network reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
VI. REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT
Visitors may post reviews, comments, photos, videos, and other content; and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Builders Network reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
If you do post content or submit material, and unless we indicate otherwise, you grant Builders Network a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant Builders Network and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Builders Network for all claims resulting from content you supply. Builders Network has the right but not the obligation to monitor and edit or remove any activity or content. Builders Network takes no responsibility and assumes no liability for any content posted by you or any third party.
VII. RISK OF LOSS
All items purchased from Builders Network are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
VIII. RETURNS, REFUNDS AND TITLE
Builders Network does not take title to returned items until the item arrives at our order fulfillment center. At our discretion, a refund may be issued without requiring a return. In this situation, Builders Network does not take title to the refunded item.
IX. PRODUCT DESCRIPTIONS
Builders Network attempts to be as accurate as possible. However, Builders Network does not warrant that product descriptions or other content of any Builders Network Service is accurate, complete, reliable, current, or error-free. If a product offered by Builders Network itself is not as described, your sole remedy is to return it in unused condition to the third-party.
Except where noted otherwise, the List Price or Suggested Price displayed for products on any Builders Network Service represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice; or the estimated retail value for a comparably featured item offered elsewhere. The List Price or Suggested Price is a comparative price estimate and may or may not represent the prevailing price in every area on any particular day. For certain items that are offered as a set, the List Price or Suggested Price may represent "open-stock" prices, which means the aggregate of the manufacturer's estimated or suggested retail price for each of the items included in the set. Where an item is offered for sale by one of our merchants, the List Price or Suggested Price may be provided by the merchant.
With respect to items sold by Builders Network, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog, or our affiliates’ catalog, may be mispriced. If the correct price of an item sold by Builders Network is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item.
Shipping may depend upon inventory availability, order deadlines, and in some cases the shipping address. Some special product, order, processing, handling fees, and/or taxes may still apply to purchases. Changing or combining orders, or changing your shipping address, speed, or preferences might affect the delivery and pricing of your order. Certain purchases may only be entitled to Standard Shipping because of their size, weight, and other shipping characteristics.
We may exclude products with special shipping characteristics at our discretion.
XI. PAYMENT TRANSACTIONS
The role of Builders Network. Except for our limited role in processing payments that you authorize or initiate, we are not involved in any underlying transaction between you, any other user, or any service providers enrolled with Builders Network. We are not a bank and do not offer banking services. We may use the services of one or more third parties to provide the Builders Network Services and process your transactions (each a "Processor"). We do not guarantee payment on behalf of any user. We are not a selling agent in connection with any sale or purchase by you of goods or services to any person. We have no control over the quality, fitness, safety, reliability, legality, or any other aspect of any good or service that you may purchase or sell using the Builders Network Services or any Provider's Application that you may use to access the Service.
Your Authorization. You authorize us to hold, receive and disburse funds in accordance with your payment instructions, whether provided to us directly or through a Provider's Application, and whether to us in our own capacity or in our capacity as payment processor acting on behalf of sellers of goods or services and other third parties that have appointed us as agent for the limited purpose of receiving payments. Your authorization permits us (a) to debit or credit your Balance, a Bank Account, any credit card, debit card, or other payment cards that we accept ("Cards"), or any other payment method we accept, or (b) to process payment transactions that you authorize by generating a paper draft or an electronic funds transfer. When you instruct us to pay a supplier, you authorize and order us to commit your payment (less any applicable fees or other amounts we may collect under this Agreement) to that supplier. We may limit the recipient's ability to use or withdraw the committed funds for a period of time we have agreed with the recipient. Your authorizations will remain in full force and effect while you maintain your Payment Account with us and for any Bank Account.
Transaction Limits. We may delay, suspend or reject a transaction for any Payment Account for any reason, including without limitation if we suspect the transaction subjects us to financial or security risk or is unauthorized, fraudulent, suspicious, unlawful, in violation of the terms of this Agreement, subject to dispute, or Chargeback, or otherwise unusual.
Chargebacks. The amount of a transaction may be charged back or reversed to your Payment Account (a "Chargeback") if the transaction (a) is disputed by the sender, (b) is reversed for any reason, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement. You owe Builders Network and will immediately pay Builders Network the amount of any Chargeback and any associated fees, fines, or penalties listed in the Fee Schedule or assessed by our Processor, processing financial institutions, or MasterCard, Visa, American Express, Discover, and other payment card networks, associations, or companies ("Networks"). You agree to assist Builders Network when requested, at your expense, to investigate any of your transactions processed through the Builders Network Services. For Chargebacks associated with Cards, Builders Network will work with you to contest the Chargeback with the Network or issuing banks should you choose to contest the Chargeback. Builders Network will request necessary information from you to contest the Chargeback. Your failure to timely assist us in investigating a transaction, including without limitation providing necessary documentation within 11 days of our request, may result in an irreversible Chargeback.
Receiving Payments. Subject to this Agreement, Builders Network will deposit to your Payment Account the amounts actually received by Builders Network for transactions submitted through the Service (less any applicable fees or other amounts we may collect under this Agreement). Unless Builders Network, in its sole discretion, elects to deposit funds earlier, funds for any given transaction will not be deposited until we have received or sent the funds and we or the designated financial institutions have accepted the transaction or funds.
XII. PAYMENT TERMS
Builders Network Fees. You agree to pay the applicable fees listed on Builders Network Fee Schedule ("Fees") whenever you use our Service. Builders Network reserves the right to change its Fees at any time, including without limitation if we determine you are incurring excessive Chargebacks. All Balances and all fees, charges, and payments collected or paid through the Service are denominated in U.S. currency. All Fees are charged at the time we process a transaction.
Set-off and Collection Rights. Without limiting our other rights, we may set-off or deduct any amount you owe us or our Affiliates from your Balance, any proceeds due to you, your Bank Account, and/or other payment instrument registered with us. If we are unable or do not wish in our sole discretion to set-off any amount you owe us or our Affiliates, you will immediately pay us, upon demand, such amount. You also agree to pay all costs and expenses associated with collection in addition to the amount collected, including without limitation any applicable interest, attorneys' fees, court costs, collection agency fees, and other legal expenses.
Processing Errors. If there is an error in the processing of any transaction, you authorize us to debit or credit your Payment Account or Bank Account, as applicable, to correct such error. If we are unable to debit the Bank Account you select for any reason, you authorize us to resubmit the debit, plus any applicable fees, to any other Bank Account or payment instrument that you have on file with us.
Taxes. Builders Network uses an automated system to apply taxes to your purchase. We cannot guarantee that the automated pricing is always accurate. Therefore, you are responsible for determining any and all taxes and duties assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with any request for or performance of the Service, your use of the Site, the sale or purchase of any products or services for a transaction, or otherwise in connection with any action, inaction, or omission by you or any affiliate of yours, or any of your or their respective employees, agents, contractors, or representatives ("Taxes"). You also are responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We may provide you a means for you to determine and apply taxes to your transactions, but we and our Affiliates are not obligated to determine whether taxes apply and are not responsible for calculating, collecting, reporting, or remitting any taxes to any tax authority arising from any transaction. Information about you and your transactions using the Service may be reported to the Internal Revenue Service (“IRS”) as provided in our policy on IRS Reporting Regulations on Third-Party Payment Transactions.
XIII. PAYMENT TERM AND TERMINATION
Your Rights. Unless otherwise agreed in writing by you, you may terminate this Agreement by closing your Payment Account at any time. You may not close your Payment Account as a means of evading withdrawal restrictions.
Suspension or Termination by Us. We may suspend this Agreement or terminate this Agreement and close your Payment Account for any reason at any time upon notice to you.
Effect of Termination. Builders Network will not be liable to you for compensation, reimbursement, or damages of any kind in connection with any termination or suspension of the Service. Upon termination of this Agreement for any reason: (a) we may elect to cancel any pending transactions, (b) you will remain liable for all fees, charges, and other payment obligations that have been incurred through the date of termination, (c) subject to the terms of this Agreement, any funds that we are holding in custody for you at the time of termination, less any amounts you owe us, may be withdrawn if all withdrawal-related authentication requirements have been fulfilled, (d) all license or other rights granted to either party under this Agreement will immediately terminate, (e) you will return or destroy and cease use of all Builders Network materials and Trademarks (described below), and (f) your access to the Site and BuilderPro will be terminated, and we will have no obligation to you to store, retain, report, or otherwise provide any copies of, or access to, any records, documents or other information in connection with your Payment Account or the Service.
XIV. APP PERMISSIONS
When you use apps created by Builders Network, such as the Builders Network App or BuilderPro App, you may grant certain permissions to us for your device. Most mobile devices provide you with information about these permissions.
XV. BUILDERS NETWORK AND BUILDERPRO SOFTWARE TERMS
In addition to these Conditions of Use, Builders Network terms apply to any software (including any updates or upgrades to the software and any related documentation) that we make available to you from time to time for your use in connection with Builders Network Services (the "Builders Network Software"). These terms apply to BuilderPro.
XVI. OTHER BUSINESSES
Parties other than Builders Network operate stores, provide services, or sell product lines through the Builders Network Services. In addition, we provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their Web sites. Builders Network does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
XVII. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE BUILDERS NETWORK SERVICES AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE BUILDERS NETWORK SERVICES ARE PROVIDED BY BUILDERS NETWORK ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. BUILDERS NETWORK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE BUILDERS NETWORKSERVICES, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE BUILDERS NETWORK SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE BUILDERS NETWORK SERVICES IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, BUILDERS NETWORK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUILDERS NETWORK DOES NOT WARRANT THAT THE BUILDERS NETWORK SERVICES, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE BUILDERS NETWORK SERVICES, BUILDERS NETWORK'S SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM BUILDERS NETWORK ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BUILDERS NETWORKWILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY BUILDERS NETWORK SERVICE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY BUILDERS NETWORK SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Any dispute or claim relating in any way to your use of any Builders Network Service, including BuilderPro, or to any products or services sold or distributed by Builders Network or through Buildersnetwork.com, or builderpro.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Bruce Kaylor, 5755 Oberlin Drive, #301, San Diego, CA 92121. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Builders Network will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
XIX. APPLICABLE LAW
By using any Builders Network Service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Builders Network.
XX. SITE POLICIES, MODIFICATION, AND SEVERABILITY
Please review our other policies, such as our pricing policy, posted on this site. These policies also govern your use of Builders Network Services, including BuilderPro. We reserve the right to make changes to our site, policies, Service Terms, and these Conditions of Use at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
XXI. OUR ADDRESS
Builders Network, Inc.
5755 Oberlin Drive, #301
San Diego, CA 92121
XXII. HOW TO SERVE A SUBPOENA
If you have a subpoena to serve on Builders Network, please note that Builders Network does not accept service via e-mail or fax and will not respond to the subpoena. All subpoenas must be properly served on Builders Network preferably by mailing the subpoena Builders Network’s registered agent. Please find below the address for the registered Agent:
5755 Oberlin Drive,
Suite No. 301,
San Diego, CA 92121
Attn: Builders Network Legal Department - Subpoena
Please note also that providing detailed and accurate information at the outset will facilitate efficient processing of your request. That information will include, for example, e-mail and/or credit card number used to make purchases for retail purchase information; the name, e-mail, and physical address of a seller for seller information.
XXIII. ADDITIONAL BUILDERS NETWORK SOFTWARE TERMS
(1) Use of the Builders Network Software. You may use Builders Network Software solely for purposes of enabling you to use and enjoy the Builders Network Services as provided by Builders Network, and as permitted by the Conditions of Use, these Software Terms and any Service Terms. Builders Network Software includes, but is not limited to BuilderPro. You may not incorporate any portion of the Builders Network Software into your own programs or compile any portion of it in combination with your own programs, transfer it for use with another service, or sell, rent, lease, lend, loan, distribute or sub-license the Builders Network Software or otherwise assign any rights to the Builders Network Software in whole or in part. You may not use the Builders Network Software for any illegal purpose. We may cease providing any Builders Network Software and we may terminate your right to use any Builders Network Software at any time. Your rights to use the Builders Network Software will automatically terminate without notice from us if you fail to comply with any of these Software Terms, the Conditions of Use or any other Service Terms. Additional third party terms contained within or distributed with certain Builders Network Software that are specifically identified in related documentation may apply to that Builders Network Software (or software incorporated with the Builders Network Software) and will govern the use of such software in the event of a conflict with these Conditions of Use. All software used in any Builders Network Service is the property of Builders Network or its software suppliers and protected by United States and international copyright laws.
(3) No Reverse Engineering. You may not, and you will not encourage, assist or authorize any other person to copy, modify, reverse engineer, decompile or disassemble, or otherwise tamper with, the Builders Network Software, whether in whole or in part, or create any derivative works from or of the Builders Network Software.
(4) Updates. In order to keep the Builders Network Software up-to-date, we may offer automatic or manual updates at any time and without notice to you.
(5) Export Regulations; Government End Users. You must comply with all export and re-export restrictions and regulations of the Department of Commerce and other United States agencies and authorities that may apply to the Builders Network Software.
Builders Network Acceptable Use Policy
Access to The Builders Network internet web site and BuilderPro (collectively, the “Service”) is a free service provided by Builders Network, Inc. ("Provider"). By accessing the Service you agree to utilize the Service in accordance with the terms and conditions of this Acceptable Use Policy ("AUP"). Your access to the Service is and shall remain completely at the discretion of Provider, and your access to the Service may be blocked, suspended, or terminated at any time for any reason including, but not limited to, violation of this AUP, the commission by you of actions that may lead to liability for Provider or its owners, partners, members, directors, employees or agents, the disruption by you of access to other users or networks, and/or the violation by you of applicable laws or regulations. Provider may revise this AUP at any time. You must accept this AUP each time you use the Service and it is your responsibility to review it for any changes at such time.
Provider does not exercise editorial control or review over the content of any web site, electronic mail transmission, newsgroup, or other material created or accessible over or through the Service, however, Provider may remove, block, filter, or restrict by any means any materials, in Provider's sole and absolute discretion, which may be illegal, inappropriate, objectionable, or offensive or which may subject Provider to liability, or which may violate this AUP. Provider may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Violation of this AUP may result in the suspension or termination of either access to the Service and/or Provider account or other actions as detailed below.
The following shall constitute violations of this AUP (this list is intended to be illustrative and not exhaustive; other uses may violate the AUP and Provider remains the sole and final arbiter of acceptable usage of its Service):
a. Illegal Use. Using the Service to advertise, solicit, transmit, receive, store, post, display, or otherwise make available any material (by email, uploading, posting, or otherwise) that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.
b. Obscene or Indecent Speech or Materials. Using the Service to advertise, solicit, transmit, receive, store, post, display, or otherwise make available obscene or indecent images or other materials.
c. Inappropriate, Objectionable or Offensive Use. Using the Service to advertise, solicit, transmit, receive, store, post, display, or otherwise make available any material which in the sole opinion of Provider may be inappropriate, objectionable or offensive material (by email, uploading, posting, or otherwise), whether illegal or otherwise.
d. Defamatory or Abusive Language. Using the Service to transmit, post, upload, or otherwise making available defamatory, harassing, abusive, or threatening material or language that encourages bodily harm, destruction of property or harasses another.
e. Harm to Minors. Using the Service to harm, or attempt to harm, minors in any way.
f. Fraudulent Activity. Using the Service to make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scam such as "pyramid schemes," "Ponzi schemes," unregistered sales of securities, securities fraud and/or "chain letters."
g. Distribution of Internet Viruses, Trojan Horses or Other Destructive Activities. Distributing information regarding the creation of and sending internet viruses, worms, Trojan Horses, pinging, flooding, mailbombing, or denial of service attacks.
h. Forgery or Impersonation. Using the Service to deceive, impersonate or misrepresent the identity of any person or entity, whether by adding, removing or modifying identifying network, message, or article header information or otherwise or by redirecting or misidentifying the owner of any website or the sender of any emails whether sent to one or more parties.
i. Unsolicited Commercial Email/Unsolicited Bulk Email/Spam. Using the Service to transmit any unsolicited commercial email or unsolicited bulk email or spam, including but not limited to activities which have the effect of facilitating unsolicited commercial email or unsolicited bulk email or using deliberately misleading headers in e-mails sent to one or more parties.
j. Unauthorized Access. Using the Service to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Provider's or another entity's computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in disruption of service or the corruption or loss of data.
k. Copyright or Trademark Infringement. Using the Service to transmit any material (by email, uploading, posting, or otherwise) that infringes upon any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and/or the unauthorized transmittal of copyrighted software, films, music or video or computer games.
l. Collection of Personal Data. Using the Service to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
m. Facilitating a Violation of this AUP. Advertising, transmitting, or otherwise making available any software product, product, or service that is designed to violate this AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mailbombing, denial of service attacks, and piracy of software.
n. Export Control Violations. Using the Service to technology, software, or other materials in violation of applicable export laws and regulations, including but not limited to the U.S. Export Administration Regulations and Executive Orders.
o. Reselling the Service. Reselling the Service without Provider's prior written authorization.
p. Network Disruptions and Unfriendly Activity. Using the Service for any activity which adversely affects the ability of other people or systems to use the Service or the internet, including but not limited to the excessive consumption of network, system or bandwidth resources whether intentional or unintentional and/or the interference with or disruption of other network users, network services or network equipment.
q. High Volume. Using the Service for sustained, continuous or routine high volume data transfers.
r. Server Hosting. Using the Service for hosting a web server, IRC server, or any other server.
s. Non-Traditional End User Activities. Using the Service for any use other than an end user's periodic active use of email, instant messaging, browsing the World Wide Web, and other typical end user activities.
Provider maintains the right to terminate any user's connection or other right to use the Service upon any determination by Provider that such user is in violation of this AUP. Provider will notify and fully cooperate with law enforcement if it becomes aware of any use of the Service in any connection with child pornography or the solicitation of sex with minors.
It is the user's sole responsibility to ensure that their system is configured, operated, and used in a manner to avoid excessive consumption of network or system resources. It is the user's responsibility to ensure that their system is configured in a secure manner. A user may not, through action or inaction, allow others to use their system for illegal or inappropriate actions. A user may not permit their system, through action or inaction, to be configured in such a way that gives a third party the capability to use their system in an illegal or inappropriate manner.
Notwithstanding the foregoing, Provider undertakes no responsibility to monitor or police any person's compliance or noncompliance with this AUP nor shall Provider be liable or otherwise responsible for any person's compliance or noncompliance with this AUP.
By accepting this AUP, you acknowledge and agree that:
a. the Service may not be uninterrupted or error-free;
b. viruses or other harmful applications may be available through the Service;
c. Provider does not guarantee the security of the Service and that unauthorized third parties may access your computer or files or otherwise monitor your connection;
d. Provider's ability to provide the Service without charge is based on the limited warranty, disclaimer and limitation of liability specified in this Section and it would require a substantial charge if any of these provisions were unenforceable.
The Service and any products or services provided on or in connection with the service are provided on an "as is", "as available" basis without warranties of any kind. All warranties, conditions, representations, indemnities and guarantees with respect to the content or service and the operation, capacity, speed, functionality, qualifications, or capabilities of the services, goods or personnel resources provided hereunder, whether express or implied, arising by law, custom, prior oral or written statements by Provider, or otherwise (including, but not limited to any warranty of satisfactory quality, merchantability, fitness for particular purpose, title and non-infringement) are hereby overridden, excluded and disclaimed. Some jurisdictions do not allow the exclusion of certain warranties, so the above exclusions may not apply to you.
Under no circumstances shall Provider, its owners, members, partners, their affiliates, suppliers or licensors, or their respective officers, directors, employees, and agents be liable for consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, based on claims of user, its appointees or its or their customers (including, but not limited to, unauthorized access, damage, or theft of your system or data, claims for loss of goodwill, claims for loss of data, use of or reliance on the service, stoppage of other work or impairment of other assets, or damage caused to equipment or programs from any virus or other harmful application), arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise.
In no event will the aggregate liability Provider or its owners, members, partners, their affiliates, suppliers or licensors, or their respective officers, directors, employees, and agents in connection with or arising out of this AUP exceed $100. The limitations, exclusions and disclaimers set forth in this section will not apply only if and to the extent that the law or a court of competent jurisdiction establishes liability under applicable law beyond and despite these limitations, exclusions and disclaimers.
You agree to indemnify, defend and hold harmless Provider, its owners, members, partners, their affiliates, suppliers or licensors, or their respective officers, directors, employees, and agents from any claim, liability, loss, damage, cost, or expense (including without limitation attorney's fees and court costs) arising out of or related to your use of the Service, any materials downloaded or uploaded through the Service, any actions taken by you in connection with your use of the Service, any violation of any third party's rights or an violation of law or regulation, or any breach of this agreement. This Section will not be construed to limit or exclude any other claims or remedies that Provider may assert under this AUP or by law.
Provider's performance of this AUP is subject to existing laws and legal process, and nothing contained in this AUP shall waive or impede Provider's right to comply with law enforcement requests or requirements relating to your use of this Service or information provided to or gathered by Provider with respect to such use. This AUP constitutes the complete and entire statement of all terms, conditions and representations of the agreement between you and Provider with respect to its subject matter and supersedes all prior writings or understanding.
I have read and understand the AUP provided above, and I agree to be bound by the provisions of this AUP.