Where Buyers and Sellers Meet
The terms and conditions set forth here constitute the full and complete agreement between you and Management Solutions Software LLC, also known as MSS. (the owners of fleamarketweb.net and garagesaleonline.us) For purposes of this agreement Fleamarketweb, GaragesaleOnline and MSS all mean Management Solutions Software LLC. Your agreement to be bound by these terms is acknowledged by your use of the Fleamarketweb Hosting Services. This document supercedes and replaces any other agreement or negotiation between you and MSS whether oral, written or otherwise, including any statements made by any representative of MSS at any time.
1 FEES AND PAYMENTS
1.1 Fleamarketweb charges the following fees where applicable. All fees are subject to change at any time. Not all fees are applicable to all accounts.
1.1.1 Set-Up - This is a one time fee that may be charged for the establishment of a new account.
1.1.2 Service Fee - This is the fee for your web hosting services.
1.1.3 Other Fees - There may be other charges for additional services that you may choose to add to your account.
1.2 Fleamarketweb reserves the right to alter, change, amend or delete fees at it's sole option. Fleamarketweb reserves the right to institute new services and charge fees in association with those services as it deems appropriate.
1.3 Fleamarketweb reserves the right to offer promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not effect the existing rights and responsibilities of each party.
1.4 Payment of Fees - Fleamarketweb accepts payments processed by PayPal.
1.5 ACCOUNT ACTIVATION AND CONTINUING SERVICE
1.5.1 Prior to activation of your user account payment must be made, and funds available, to Fleamarketweb for the agreed service fee amount for the stated period together with any Fleamarketweb set-up charges or any other charges that may be applicable. Refusal, rejection or return of any such charges for any reason whatsoever or any portion thereof is grounds for account suspension and/or termination at the sole option of Fleamarketweb.
1.5.2 To continue service it is recommended that in order to avoid any service interruption that you submit your payment to MSS a sufficient time, usually 15 days, before the expiration of the current service period so that it reaches MSS in advance of the renewal date. For continuation of service it is recommended that a subscription be accepted that allows for the automatic withdrawal by MSS of funds from PayPal.
2 WEB HOSTING SERVICES
2.1 For the term of the agreement as set forth herein Fleamarketweb agrees to provide Web Hosting Services. Fleamarketweb reserves the right to change, amend and/or otherwise alter the services provided with equivalent or otherwise equal services without prior notice to you. The specifics of any particular offer are contained within the offer itself as published on the Fleamarketweb website at the time you create your account and remain in effect throughout the term of your agreement. Web Hosting Services shall be defined as server space and data transfer for the purposes of displaying and selling items by your business or personally.
2.2 The hosting service designed for fleamarketweb.net or garagesaleonline.us is specifically for the use of low volumn sale sites. If a sites data transfer rate becomes to high, as determined by Fleamarketweb, the account may, At the discretion of Fleamarketweb, be suspended and a refund of remaining hosting fees issued.
2.3 All hosting for each individual site requires the use of the Coffeecup Shopping Cart Creator software program. This program may be purchased from CoffeeCup software. Hosting fees do not include this software program. Fleamarketweb can provide support for this software program as it relates to publishing to your Fleamarketweb hosted site. Other support for this program is provided by CoffeeCup. The installation of any other software or pages outside of those produced by Coffeecup Shopping Cart Creator will result in immediate termination of your account without refund.
2.4 MSS is not associated with the Coffeecup company in any way besides being a member of their affiliate program and a user of their products.
3 DOMAIN NAME USAGE
3.1 All Fleamarketweb and GaragesaleOnline sites are set up as sub-domains of fleamarketweb.net or garagesaleonline.us, domain names owned by MSS. Fleamarketweb does not provide for primary domain name registration or hosting but reserves the right to do so.
3.2 The Fleamarketweb.net and garagesaleonline.us domain names are owned by Management Solutions Software LLC. MSS allows for it's use in the advertising of your web site subject to the following.
3.2.1 You may not represent that you are in any way an agent of, employee, partner, owner or associated in any way with MSS, Fleamarketweb or GaragesaleOnline.
3.2.2 The Fleamarketweb and GaragesaleOnline name may not be use in a derogetory manner.
3.2.3 The use of the MSS owned domain names may only be done within the structured name of the sub-domain that we issue for your web site. As an example your_subdomain.fleamarketweb.net.
3.2.4 At time of account setup you will be allowed to select, with Fleamarketweb approval, your sub-domain name and which domain, fleamarketweb.net or garagesaleonline.us, you would like that sub-domain name associated with.
3.3 MSS reserves the right, at it's sold descretion, to suspend or terminate any account that violates the above advertising rules. MSS is the sole arbitrator in determining if the rules have been violated.
4 ACCEPTABLE USE
4.1 Fleamarketweb strictly enforces compliance with its acceptable use policy. You agree to maintain your website in full compliance with the terms set forth below and their spirit. Failure to so comply is cause for immediate suspension and/or termination of your account at the sole option of Fleamarketweb.
4.2 You agree that you will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government.
4.3 You agree not to take any action which threatens, encourages or causes any harm to minors of any kind or to perform any activity which is likely to cause such harm or which assists any other person or group in doing so.
4.4 You agree not to take any action which encourages or consists of any threat of harm of any kind to any person or property or assists any other person or group in doing so.
4.5 You agree not use your account to or otherwise knowingly or otherwise permit the violation of any provision of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM ACT) including the following:
4.5.1 False or Misleading Header Information
4.5.2 Deceptive Subject Lines
4.5.3 Failure to provide an opt-out method
4.5.4 Failure to Identify the message as an advertisement
4.5.5 Failure to include your physical Postal Address
4.6 You agree not to make any inappropriate communication to any Newsgroup, Mailing List, Chat Facility, or other Internet Forum. Fleamarketweb shall make the sole determination of what is "Inappropriate".
4.7 You shall not use your account to host pornographic content.
4.8 You agree not to make or attempt any unauthorized access to any Fleamarketweb website or the website of any Fleamarketweb customer.
4.9 You agree not to infringe 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 the unauthorized transmittal of copyrighted software.
4.10 You agree not to collect or attempt to collect personally identifiable information of any person or entity without their express consent. You shall maintain records of any such consent throughout the term of any agreement that you have with Fleamarketweb and for three years thereafter.
4.11 You agree not to undertake any action which is harmful or potentially harmful to the Fleamarketweb server structure.
4.12 You agree that the Fleamarketweb servers including the space occupied by your account is and remains the property of MSS. Your limited license to use the service is not subject to lease, sublease or any other sharing or transfer without the specific, express consent of MSS. You may not make your account available to any third party in any way.
4.13 You agree not to run a banner exchange, free adult tgp (thumbnail gallery post) and/or free adult image galleries on your website. You understand and agree that shared server space is for business and personal website operations purposes only and not for unrelated data storage.
4.14 You agree that you will not sell any sexually related adult items including but not limited to adult toys, lubricants, birth control devices, adult DVDs.
4.14 You agree not to utilize "circular popups", "multiple popups" or any redirect, link or referral which creates an offensive or unpleasant user experience.
4.15 You agree not to abuse whether verbally or physically or whether in person, via email or telephone or otherwise (a) any other customer of Fleamarketweb (b) any reseller of Fleamarketweb (c) any other person or (d) any employee or contractor of Fleamarketweb.
4.16 You agree that the account that you are accepting is not for high volumn sales or usage. This web service is designed for personal use or for the use of small one or two person businesses.
4.16 You agree that MSS will make the sole determination of whether the acceptable use policy has been violated. This policy may be amended by MSS at any time without notice to you by posting the new policy in this location. Such new policy shall become effective immediately upon such posting for all accounts. It shall be your obligation to check this page regularly for updates to this policy.
5 LICENSE
MSS, subject to the terms and conditions set forth herein, hereby grants you a non-exclusive, limited, personal, license to use the Fleamarketweb Web Hosting Service for the term of the agreement as set forth herein. Your rights under this agreement may be assigned only upon prior notice and express approval by MSS. Any other assignment is null and void.
6 OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY
6.1 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Fleamarketweb including but not limited to the Fleamarketweb customer service and maintenance tools. You acknowledge that all right and title to any such Fleamarketweb intellectual property shall remain the sole property of MSS and that you have no right, title or interest to them. You further agree not to provide access to the Fleamarketweb services to any third party. You agree yourself not to assist any third party in any way to use, translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Fleamarketweb Services. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Fleamarketweb service shall also remain the sole property or MSS.
6.2 During the term of this agreement you may have access to certain information and materials relating to the Fleamarketweb business, customers, software technology and marketing which Fleamarketweb treats as confidential. You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any confidential information without the express prior written consent of Fleamarketweb; and (ii) not use or disclose any of the confidential information for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the confidential information is a trade secret under applicable law and shall continue for three (3) years following termination of this agreement with respect to confidential information, which does not rise to the level of a trade secret.
6.3 You are the sole owner of any information that you post within your account area. Fleamarketweb does not normally review or edit the information posted within your account. Notwithstanding Fleamarketweb specifically reserves all right to edit, change, remove or delete any information posted in violation of this policy, the acceptable use policy or section 4 or any applicable law, order or public policy. Fleamarketweb is not your partner, associate, joint venturer or agent with respect to any information placed by you on the Fleamarketweb servers.
7 TERM
The term of this agreement shall be the period selected by you at the commencement of your account. This term may be extended by Fleamarketweb or your purchase of additional service. Purchase of additional services will be based upon the price of those services at the time of that purchase.
8 SUSPENSION AND TERMINATION
8.1 Suspension - At the sole option of Fleamarketweb for any reason set forth herein or in the event that you breach any term of this agreement Fleamarketweb may suspend your account by deactivating any access by you and/or by web users to any information contained on the Fleamarketweb servers related to your account while maintaining the information and data related to your account upon the Fleamarketweb servers. Suspension shall specifically include the disabling of your account and/or any access to information or data related to your account. In the event of any such suspension you will be notified. At the option of Fleamarketweb you may be given an opportunity to correct such breach or violation. Upon being notified of an opportunity to correct such breach or violation, if such breach or violation is not corrected the account may be terminated under paragraph 8.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
8.2 Termination - This agreement and all of it's terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the Fleamarketweb servers. Such information or data may or may not be made available to you by Fleamarketweb after any such termination. This agreement may be terminated either (a) after a period of suspension as set forth in paragraph 8.1 or (b) except as otherwise stated herein by either party upon 15 days notice in advance of a renewal period for any reason.
8.3 In the event of termination under paragraph 8.2(a) there will be no refund provided to you. In addition, MSS reserves the right to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney's fees or other costs of any kind as may be applicable under South Dakota Law
9 INFORMATION USAGE AND COMMUNICATIONS
9.1 You hereby consent and agree that as to any information which Fleamarketweb may collect from you and/or maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, correspondence to or from Fleamarketweb concerning you or your account, or other information which in Fleamarketweb sole judgment is reasonable, Fleamarketweb may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of Fleamarketweb and may include but shall not be limited to (1) compliance with court order, subpoena or other request of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the Fleamarketweb Terms of Service or other policies.
9.2 During and after the term of this agreement you agree to receive periodic emails, telephone calls, or SMS message from Fleamarketweb and partners or agents in regards to Fleamarketweb products and services. We may also contact you concerning your account, system conditions, changes, updates and or schedules.
9.3 You agree to provide and at all times during the term of this agreement maintain true and accurate account information, requested at the time of service signup, on file with Fleamarketweb. You further agree that the failure to provide or maintain such accurate information is a material breach of this agreement and subjects your account to suspension and/or termination as set forth in paragraph eight.
9.4 You agree to the terms of the Fleamarketweb Privacy Policy located here.
10 NOTICE
10.1 Any notice under this agreement shall be given by Fleamarketweb to you via email at the address provided by you to Fleamarketweb at the commencement of this agreement or as Fleamarketweb is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so by contacting customer service via the Fleamarketweb website located at http://www.fleamarketweb.net/supportcontact.htm.
10.2 Any notice by you to Fleamarketweb shall be made by use of the support contact form at http://www.fleamarketweb.net/supportcontact.htm. All messages through use of this form will be acknowledged by email. If a message is not acknowledged please check in your spam folder for an acknowledgement or resend your message. Notices may also be sent via United States Mail to our mail box at the following Address:
Management Solutions Software LLC
PMB 2854
3700 S Westport Ave
Sioux Falls SD 57106
11 WARRANTEES AND LIMITATIONS
11.1 Fleamarketweb makes every reasonable effort to maintain operation of the Fleamarketweb service however because as many events and circumstances are beyond the control of Fleamarketweb, Fleamarketweb does not in any way warrant or otherwise guarantee the availability of the Fleamarketweb system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Fleamarketweb.
11.2 THE FLEAMARKETWEB SERVICE IS PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
11.3 In general, Fleamarketweb has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. Fleamarketweb accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Fleamarketweb provides no warrantee for any goods or services which you obtain over the Internet nor the compatibility of any such services with the Fleamarketweb system.
11.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to not be infringing.
11.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO FLEAMARKETWEB IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL FLEAMARKETWEB BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
12 INDEMNITY
12.1 You agree to fully defend and indemnify and hold harmless MSS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of MSS in any way related to your use of the Fleamarketweb service or any portion thereof. Any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Fleamarketweb service or any portion thereof. Choice of counsel remains exclusively that of MSS.
12.2 You agree that upon the assignment of your user ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your user ID. You further agree to defend and indemnify and hold harmless MSS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of MSS.
13 FORCE MAJEURE
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
14 ASSIGNMENT
Your rights under this agreement may be assigned only upon prior notice and express approval by MSS. MSS may assign it's rights hereunder to any person or entity who shall become a principal owner, or shareholder of MSS. Any other attempted transfer or assignment of rights hereunder shall be null and void.
15 SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
16 CHOICE OF LAW
This Agreement shall be interpreted under the laws of the State of South Dakota without regard to any conflict of laws provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be venued in the Courts of the county of Minnehaha in the State of South Dakota. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue.
17 NO AGENCY
Notwithstanding any other provision of this agreement, MSS is not your agent, partner or joint venturer in any respect.
18 AMENDMENT
MSS may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the Fleamarketweb web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts.
1 FEES AND PAYMENTS
1.1 Fleamarketweb charges the following fees where applicable. All fees are subject to change at any time. Not all fees are applicable to all accounts.
1.1.1 Set-Up - This is a one time fee that may be charged for the establishment of a new account.
1.1.2 Service Fee - This is the fee for your web hosting services.
1.1.3 Other Fees - There may be other charges for additional services that you may choose to add to your account.
1.2 Fleamarketweb reserves the right to alter, change, amend or delete fees at it's sole option. Fleamarketweb reserves the right to institute new services and charge fees in association with those services as it deems appropriate.
1.3 Fleamarketweb reserves the right to offer promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not effect the existing rights and responsibilities of each party.
1.4 Payment of Fees - Fleamarketweb accepts payments processed by PayPal.
1.5 ACCOUNT ACTIVATION AND CONTINUING SERVICE
1.5.1 Prior to activation of your user account payment must be made, and funds available, to Fleamarketweb for the agreed service fee amount for the stated period together with any Fleamarketweb set-up charges or any other charges that may be applicable. Refusal, rejection or return of any such charges for any reason whatsoever or any portion thereof is grounds for account suspension and/or termination at the sole option of Fleamarketweb.
1.5.2 To continue service it is recommended that in order to avoid any service interruption that you submit your payment to MSS a sufficient time, usually 15 days, before the expiration of the current service period so that it reaches MSS in advance of the renewal date. For continuation of service it is recommended that a subscription be accepted that allows for the automatic withdrawal by MSS of funds from PayPal.
2 WEB HOSTING SERVICES
2.1 For the term of the agreement as set forth herein Fleamarketweb agrees to provide Web Hosting Services. Fleamarketweb reserves the right to change, amend and/or otherwise alter the services provided with equivalent or otherwise equal services without prior notice to you. The specifics of any particular offer are contained within the offer itself as published on the Fleamarketweb website at the time you create your account and remain in effect throughout the term of your agreement. Web Hosting Services shall be defined as server space and data transfer for the purposes of displaying and selling items by your business or personally.
2.2 The hosting service designed for fleamarketweb.net or garagesaleonline.us is specifically for the use of low volumn sale sites. If a sites data transfer rate becomes to high, as determined by Fleamarketweb, the account may, At the discretion of Fleamarketweb, be suspended and a refund of remaining hosting fees issued.
2.3 All hosting for each individual site requires the use of the Coffeecup Shopping Cart Creator software program. This program may be purchased from CoffeeCup software. Hosting fees do not include this software program. Fleamarketweb can provide support for this software program as it relates to publishing to your Fleamarketweb hosted site. Other support for this program is provided by CoffeeCup. The installation of any other software or pages outside of those produced by Coffeecup Shopping Cart Creator will result in immediate termination of your account without refund.
2.4 MSS is not associated with the Coffeecup company in any way besides being a member of their affiliate program and a user of their products.
3 DOMAIN NAME USAGE
3.1 All Fleamarketweb and GaragesaleOnline sites are set up as sub-domains of fleamarketweb.net or garagesaleonline.us, domain names owned by MSS. Fleamarketweb does not provide for primary domain name registration or hosting but reserves the right to do so.
3.2 The Fleamarketweb.net and garagesaleonline.us domain names are owned by Management Solutions Software LLC. MSS allows for it's use in the advertising of your web site subject to the following.
3.2.1 You may not represent that you are in any way an agent of, employee, partner, owner or associated in any way with MSS, Fleamarketweb or GaragesaleOnline.
3.2.2 The Fleamarketweb and GaragesaleOnline name may not be use in a derogetory manner.
3.2.3 The use of the MSS owned domain names may only be done within the structured name of the sub-domain that we issue for your web site. As an example your_subdomain.fleamarketweb.net.
3.2.4 At time of account setup you will be allowed to select, with Fleamarketweb approval, your sub-domain name and which domain, fleamarketweb.net or garagesaleonline.us, you would like that sub-domain name associated with.
3.3 MSS reserves the right, at it's sold descretion, to suspend or terminate any account that violates the above advertising rules. MSS is the sole arbitrator in determining if the rules have been violated.
4 ACCEPTABLE USE
4.1 Fleamarketweb strictly enforces compliance with its acceptable use policy. You agree to maintain your website in full compliance with the terms set forth below and their spirit. Failure to so comply is cause for immediate suspension and/or termination of your account at the sole option of Fleamarketweb.
4.2 You agree that you will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government.
4.3 You agree not to take any action which threatens, encourages or causes any harm to minors of any kind or to perform any activity which is likely to cause such harm or which assists any other person or group in doing so.
4.4 You agree not to take any action which encourages or consists of any threat of harm of any kind to any person or property or assists any other person or group in doing so.
4.5 You agree not use your account to or otherwise knowingly or otherwise permit the violation of any provision of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM ACT) including the following:
4.5.1 False or Misleading Header Information
4.5.2 Deceptive Subject Lines
4.5.3 Failure to provide an opt-out method
4.5.4 Failure to Identify the message as an advertisement
4.5.5 Failure to include your physical Postal Address
4.6 You agree not to make any inappropriate communication to any Newsgroup, Mailing List, Chat Facility, or other Internet Forum. Fleamarketweb shall make the sole determination of what is "Inappropriate".
4.7 You shall not use your account to host pornographic content.
4.8 You agree not to make or attempt any unauthorized access to any Fleamarketweb website or the website of any Fleamarketweb customer.
4.9 You agree not to infringe 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 the unauthorized transmittal of copyrighted software.
4.10 You agree not to collect or attempt to collect personally identifiable information of any person or entity without their express consent. You shall maintain records of any such consent throughout the term of any agreement that you have with Fleamarketweb and for three years thereafter.
4.11 You agree not to undertake any action which is harmful or potentially harmful to the Fleamarketweb server structure.
4.12 You agree that the Fleamarketweb servers including the space occupied by your account is and remains the property of MSS. Your limited license to use the service is not subject to lease, sublease or any other sharing or transfer without the specific, express consent of MSS. You may not make your account available to any third party in any way.
4.13 You agree not to run a banner exchange, free adult tgp (thumbnail gallery post) and/or free adult image galleries on your website. You understand and agree that shared server space is for business and personal website operations purposes only and not for unrelated data storage.
4.14 You agree that you will not sell any sexually related adult items including but not limited to adult toys, lubricants, birth control devices, adult DVDs.
4.14 You agree not to utilize "circular popups", "multiple popups" or any redirect, link or referral which creates an offensive or unpleasant user experience.
4.15 You agree not to abuse whether verbally or physically or whether in person, via email or telephone or otherwise (a) any other customer of Fleamarketweb (b) any reseller of Fleamarketweb (c) any other person or (d) any employee or contractor of Fleamarketweb.
4.16 You agree that the account that you are accepting is not for high volumn sales or usage. This web service is designed for personal use or for the use of small one or two person businesses.
4.16 You agree that MSS will make the sole determination of whether the acceptable use policy has been violated. This policy may be amended by MSS at any time without notice to you by posting the new policy in this location. Such new policy shall become effective immediately upon such posting for all accounts. It shall be your obligation to check this page regularly for updates to this policy.
5 LICENSE
MSS, subject to the terms and conditions set forth herein, hereby grants you a non-exclusive, limited, personal, license to use the Fleamarketweb Web Hosting Service for the term of the agreement as set forth herein. Your rights under this agreement may be assigned only upon prior notice and express approval by MSS. Any other assignment is null and void.
6 OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY
6.1 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Fleamarketweb including but not limited to the Fleamarketweb customer service and maintenance tools. You acknowledge that all right and title to any such Fleamarketweb intellectual property shall remain the sole property of MSS and that you have no right, title or interest to them. You further agree not to provide access to the Fleamarketweb services to any third party. You agree yourself not to assist any third party in any way to use, translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Fleamarketweb Services. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Fleamarketweb service shall also remain the sole property or MSS.
6.2 During the term of this agreement you may have access to certain information and materials relating to the Fleamarketweb business, customers, software technology and marketing which Fleamarketweb treats as confidential. You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any confidential information without the express prior written consent of Fleamarketweb; and (ii) not use or disclose any of the confidential information for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the confidential information is a trade secret under applicable law and shall continue for three (3) years following termination of this agreement with respect to confidential information, which does not rise to the level of a trade secret.
6.3 You are the sole owner of any information that you post within your account area. Fleamarketweb does not normally review or edit the information posted within your account. Notwithstanding Fleamarketweb specifically reserves all right to edit, change, remove or delete any information posted in violation of this policy, the acceptable use policy or section 4 or any applicable law, order or public policy. Fleamarketweb is not your partner, associate, joint venturer or agent with respect to any information placed by you on the Fleamarketweb servers.
7 TERM
The term of this agreement shall be the period selected by you at the commencement of your account. This term may be extended by Fleamarketweb or your purchase of additional service. Purchase of additional services will be based upon the price of those services at the time of that purchase.
8 SUSPENSION AND TERMINATION
8.1 Suspension - At the sole option of Fleamarketweb for any reason set forth herein or in the event that you breach any term of this agreement Fleamarketweb may suspend your account by deactivating any access by you and/or by web users to any information contained on the Fleamarketweb servers related to your account while maintaining the information and data related to your account upon the Fleamarketweb servers. Suspension shall specifically include the disabling of your account and/or any access to information or data related to your account. In the event of any such suspension you will be notified. At the option of Fleamarketweb you may be given an opportunity to correct such breach or violation. Upon being notified of an opportunity to correct such breach or violation, if such breach or violation is not corrected the account may be terminated under paragraph 8.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
8.2 Termination - This agreement and all of it's terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the Fleamarketweb servers. Such information or data may or may not be made available to you by Fleamarketweb after any such termination. This agreement may be terminated either (a) after a period of suspension as set forth in paragraph 8.1 or (b) except as otherwise stated herein by either party upon 15 days notice in advance of a renewal period for any reason.
8.3 In the event of termination under paragraph 8.2(a) there will be no refund provided to you. In addition, MSS reserves the right to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney's fees or other costs of any kind as may be applicable under South Dakota Law
9 INFORMATION USAGE AND COMMUNICATIONS
9.1 You hereby consent and agree that as to any information which Fleamarketweb may collect from you and/or maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, correspondence to or from Fleamarketweb concerning you or your account, or other information which in Fleamarketweb sole judgment is reasonable, Fleamarketweb may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of Fleamarketweb and may include but shall not be limited to (1) compliance with court order, subpoena or other request of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the Fleamarketweb Terms of Service or other policies.
9.2 During and after the term of this agreement you agree to receive periodic emails, telephone calls, or SMS message from Fleamarketweb and partners or agents in regards to Fleamarketweb products and services. We may also contact you concerning your account, system conditions, changes, updates and or schedules.
9.3 You agree to provide and at all times during the term of this agreement maintain true and accurate account information, requested at the time of service signup, on file with Fleamarketweb. You further agree that the failure to provide or maintain such accurate information is a material breach of this agreement and subjects your account to suspension and/or termination as set forth in paragraph eight.
9.4 You agree to the terms of the Fleamarketweb Privacy Policy located here.
10 NOTICE
10.1 Any notice under this agreement shall be given by Fleamarketweb to you via email at the address provided by you to Fleamarketweb at the commencement of this agreement or as Fleamarketweb is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so by contacting customer service via the Fleamarketweb website located at http://www.fleamarketweb.net/supportcontact.htm.
10.2 Any notice by you to Fleamarketweb shall be made by use of the support contact form at http://www.fleamarketweb.net/supportcontact.htm. All messages through use of this form will be acknowledged by email. If a message is not acknowledged please check in your spam folder for an acknowledgement or resend your message. Notices may also be sent via United States Mail to our mail box at the following Address:
Management Solutions Software LLC
PMB 2854
3700 S Westport Ave
Sioux Falls SD 57106
11 WARRANTEES AND LIMITATIONS
11.1 Fleamarketweb makes every reasonable effort to maintain operation of the Fleamarketweb service however because as many events and circumstances are beyond the control of Fleamarketweb, Fleamarketweb does not in any way warrant or otherwise guarantee the availability of the Fleamarketweb system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Fleamarketweb.
11.2 THE FLEAMARKETWEB SERVICE IS PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
11.3 In general, Fleamarketweb has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. Fleamarketweb accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Fleamarketweb provides no warrantee for any goods or services which you obtain over the Internet nor the compatibility of any such services with the Fleamarketweb system.
11.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to not be infringing.
11.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO FLEAMARKETWEB IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL FLEAMARKETWEB BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
12 INDEMNITY
12.1 You agree to fully defend and indemnify and hold harmless MSS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of MSS in any way related to your use of the Fleamarketweb service or any portion thereof. Any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Fleamarketweb service or any portion thereof. Choice of counsel remains exclusively that of MSS.
12.2 You agree that upon the assignment of your user ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your user ID. You further agree to defend and indemnify and hold harmless MSS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of MSS.
13 FORCE MAJEURE
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
14 ASSIGNMENT
Your rights under this agreement may be assigned only upon prior notice and express approval by MSS. MSS may assign it's rights hereunder to any person or entity who shall become a principal owner, or shareholder of MSS. Any other attempted transfer or assignment of rights hereunder shall be null and void.
15 SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
16 CHOICE OF LAW
This Agreement shall be interpreted under the laws of the State of South Dakota without regard to any conflict of laws provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be venued in the Courts of the county of Minnehaha in the State of South Dakota. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue.
17 NO AGENCY
Notwithstanding any other provision of this agreement, MSS is not your agent, partner or joint venturer in any respect.
18 AMENDMENT
MSS may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the Fleamarketweb web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts.
