Last Revised: December 13, 2016
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Website Builder Service Agreement (this “Agreement”) is entered into by and between DomainSmart, an AZ individual ("DomainSmart") and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of DomainSmart’s Website Builder services (“Website Builder” or the “Services”).
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with (i) DomainSmart’s Universal Terms of Service Agreement, and (ii) any plan limits, product disclaimers or other restrictions presented to you on the Website Builder landing page of the DomainSmart website (this “Site”), both (i) and (ii) of which are incorporated herein by reference.
The terms “we”, “us” or “our” shall refer to DomainSmart. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement and/or uses the Services. Unless otherwise specifically provided in this Agreement, nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
You acknowledge and agree that (i) DomainSmart, in its sole and absolute discretion, may change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site, and (ii) your use of this Site or the Services found at this Site after such changes or modifications have been made (as indicated by the “Last Revised” date at the top of this page) shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services found at this Site. In addition, DomainSmart may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account (“Shopper Account”) information, including your email address, current. DomainSmart assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate or out-of-date email address.
2. description of services
Website Builder is an online website builder, which allows you to build a website within the parameters specific to your plan. InstantPage is an online website builder, which allows you to build a one-page website.
3. facebook page designer
Website Builder and InstantPage include access to a Facebook page designer (the “Facebook Page Designer”).
The Facebook Page Designer allows you to create customized Facebook pages designed to complement your website. The number of Facebook pages allowed varies depending on your Website Builder plan, and is in addition to the number of site pages included with your Website Builder plan.
In order to use the Facebook Page Designer, you will need to (i) set up a Facebook account (if you do not have one already) and (ii) activate a public page from within your Facebook account. After you finish designing your Facebook pages, you will need to link the Facebook pages to your Facebook account in order for the Facebook pages to be navigable. Please note that your Facebook pages will be built on the same hosting account (and accessible via the same control panel) as your website. Accordingly, at least one page of your website must be published before your Facebook pages can be published.
TLDs. You acknowledge and agree that your website will be subject to any and all content (or other) restrictions specific to the top level domain (“TLD”) with which it is associated. If you have more than one Website Builder account, only the Website Builder account associated with the TLD in question will be affected by such limitations.
Coming Soon Pages. Website Builder offers a “Coming Soon Page” option for customers who are not yet ready to build their website. You acknowledge and agree that if you select the “Coming Soon Page” option, you will have a more limited selection of design and color combinations than those available in the Website Builder template library.
Obligation to Maintain Subscription. Provision of Website Builder is dependent upon your active subscription to (and payment for) Website Builder. Failure to maintain your subscription at any time will result in termination of Website Builder. Recurring billing for your Website Builder plan will begin on the date of purchase. Fees paid for Website Builder are not transferable to other Website Builder accounts (or other DomainSmart accounts) other than the account initially associated with Website Builder on the date of purchase.
Instant Publication. InstantPage is designed to promote your website live on your domain name instantly. You acknowledge and agree that you will not have the ability to preview either initial design selections or subsequent design changes to your website before they become live. Accordingly, we encourage you to carefully review your (i) background, (ii) text, (iii) layouts, (iv) widgets, and (v) colors carefully at each step.
5. integration with hosting platform; ownership of websites
The websites created using Website Builder or InstantPage are built on and integrated with DomainSmart’s hosting platform, and any attempt to migrate or otherwise transfer any such website to another hosting provider is a violation of this Agreement.
Except for the content provided by you, the websites created using Website Builder or InstantPage belong to DomainSmart, and all such websites (including all copies thereof) are subject to copyright, trademark, patent, and other intellectual property laws of the United States and foreign countries. DomainSmart grants you an unrestricted license in the website for the duration of your Website Builder subscription. Cancellation of your Website Builder subscription for any reason terminates your license to the website thereafter. You agree to prevent any unauthorized copying of the websites created using Website Builder or InstantPage. Unless otherwise specifically provided in this Agreement, no right or license under any copyright, trademark, patent, or other intellectual property right or license is granted by this Agreement. DomainSmart reserves all rights not expressly granted herein.
By uploading content for your website, you grant DomainSmart an unrestricted license (i) to use the content for the purpose of including in your website, and (ii) to display screenshots of any website created using Website Builder online, in marketing materials, or in other manners as determined by DomainSmart in its sole and absolute discretion. In addition, you represent and warrant to DomainSmart that (a) you have all necessary rights to distribute such content, either because you are the author of the content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the content, and (b) you do not violate the rights of any third party. As used herein, “content” shall include without limitation any text, software, widgets, applications, scripts, source code, API, photographs, illustrations, images, graphics, sounds, music, audio, video and interactive features (and the trademarks, service marks and logos contained therein). You acknowledge and agree that content you upload into Website Builder may be immediately available. Content provided may also be cached for up to one year and deleting content from Website Builder does not remove cached versions of the content.
6. other DomainSmart products and services
Website Builder may include access to other DomainSmart products and services, such as DomainSmart’s (i) Email, (ii) Photo Album, and (iii) SSL products.
If you purchase Website Builder, your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with the product-level agreements for any other DomainSmart products and services included with Website Builder, such as DomainSmart’s (i) Workspace Service Agreement, and (ii) SSL Certificate Service Subscriber Agreement located here, which are incorporated herein by reference.
The products and services included with Website Builder may be found on the Website Builder landing page.
PhotoAlbum Sevices. Photo Album allows you to (i) upload, organize, edit, and download photos and (ii) upload and organize videos in public, private and password-protected galleries. You will also be able to share photos and videos by email or by posting the same to their blogs or websites. You acknowledge and agree that all photos, videos, other content uploaded or displayed on Photo Album must comply with the Universal Terms of Service.
Smart Space Services. The SmartSpace service allows you to personalize a web site. You may customize or modify the appearance of Your website as provided and allowed by the instructions and this Agreement. You may not otherwise alter or modify the application, or any content provided. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code. You are not authorized to combine the website with any other software program or applications, nor are You authorized to integrate any plug-in or enhancement other than those provided. The RSS feeds, chat application and API's may not be modified, distributed or shared in any way. The RSS feeds, chat application and API's are subject to termination at anytime. You acknowledge and agree that your use of the SmartSpace service must comply with the terms of the Universal Terms of Service.
7. general rules of conduct; facebook restrictions
In addition to Section 4 (General Rules of Conduct) contained in the Universal Terms of Service Agreement, you specifically acknowledge and agree that:
- If you access the Facebook Page Designer, you shall not use it to launch a Facebook page that promotes, provides content referencing, facilitates, contains, or uses any of the following:
- Alcohol-related content, or sale of tobacco products, ammunition and/or firearms;
- Content that infringes upon the rights of any third party, including intellectual property rights, privacy, publicity, moral or other personal or proprietary rights, or that is deceptive or fraudulent;
- Gambling, including without limitation, any online casino, sports books, bingo or poker;
- Illegal activity and/or illegal contests, pyramid schemes, sweepstakes or chain letters (if you run, reference, or facilitate a legally permissible sweepstakes, contest, or other promotion you are subject to Facebook's Promotions Guidelines located here); or
- Content that is hateful, threatening, defamatory, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
- If you access the Facebook Page Designer, you must ensure that you own or have secured all rights necessary to copy, display, distribute, deliver, render and publicly perform all content of or within your application to Facebook users in all countries where you make the content available.
8. third-party images and software
Definitions and Scope. As part of Website Builder and Instant Page, you may be allowed to use certain (i) photographs, illustrations, or other images (“Images”) and/or (ii) software, widgets, or other applications (“Software”) developed, owned, or licensed by third-party providers as DomainSmart may contract with from time to time. If the Images/Software are accompanied by or require consent to a license agreement from the third-party provider, your use of the Images/Software is subject to the terms and conditions of such license agreement, which are in addition to (not in lieu of) the terms and conditions of this Agreement.
Terms and Conditions Applicable to all Images/Software. You acknowledge and agree that (i) the Images/Software are neither sold nor distributed to you and you may use the Images/Software solely as part of Website Builder or InstantPage; (ii) you may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Images/Software; and (iii) you may not modify, reverse-engineer, decompile, disassemble, reverse compile, create derivative works of or attempt to derive the source code from the Images/Software.
DomainSmart may provide your personal information to third-party providers as required to provide the third-party Images/Software, including, but not limited to, the domain name associated with the Website Builder or InstantPage page. DomainSmart reserves the right to modify, change, or discontinue provision of the Images/Software at any time, and you agree to cooperate in performing any steps necessary in connection therewith.
DomainSmart makes no representations or warranties about any third-party Images/Software offered in connection with Website Builder or InstantPage, and expressly disclaims any liability or responsibility regarding the same.
You acknowledge and agree that you will protect, defend, indemnify and hold harmless DomainSmart from and against any and all claims imposed upon or incurred by DomainSmart directly or indirectly arising from your use or misuse of the third-party Images/Software. You acknowledge and agree that the providers of the third-party Images/Software are third-party beneficiaries to this Agreement for purposes of enforcing their rights under this Agreement.
Additional Terms and Conditions Applicable to Fotolia. You acknowledge and agree to Fotolia’s Terms and Conditions of Use located here, which are hereby incorporated by reference.
Additional Terms and Conditions Applicable to MapQuest. You acknowledge and agree that you will not (i) record, save, archive, store, create a database of or otherwise copy in any manner any map and/or driving directions (or any portion thereof) other than as may be necessary to generate such map and/or driving directions to view and print them on a temporary basis; (ii) sublicense, lease, rent, assign, distribute, repackage, rebrand, or otherwise transfer or disclose any map and/or driving directions to any third party; or (iii) cause, assist or with knowledge permit any third party to do any of the foregoing.
Additional Terms and Conditions Applicable to eBay. You acknowledge and agree that you will comply with the eBay Developers Program & API License Agreement located here, which are hereby incorporated by reference. You acknowledge and agree that eBay owns all rights in the Developers Program intellectual property as described in the Developers Program & API License Agreement.
Additional Terms and Conditions Applicable to Google Maps. You acknowledge and agree that your use of Google Maps is subject to the terms of service located here: http://www.google.com/intl/en_us/help/terms_maps.html, which are hereby incorporated by reference.
Additional Terms and Conditions Applicable to Get Found. You acknowledge and agree that if you use the Get Found widget you are subject to the Get Found Terms of Service, located here, which are hereby incorporated by reference.
Additional Terms and Conditions Applicable to Mapbox. You acknowledge and agree that your use of Mapbox is subject to the terms of service located here, which are hereby incorporated by reference.
9. titles and headings; independent covenants; severability
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
10. DEFINITIONS; CONFLICTS
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.