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SERVICES AGREEMENT
Definitions for this agreement
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TOTF : TOTF web sites,
TOTF programs,servers used by TOTF programs,
the people who made TOTF,
and the people who operate TOTF.
Astal: Astal Web
Effects, Astal Investments and Software LTD.,
Astal's employees, Share holders and menagers.
TOTF MEMBER: The
person and/or organization identified
by the Account and User Information
and own a copy of TOTF program.
TOTF Account: All
web pages created by TOTF MEMBER, space used on TOTF.
1. Terms for Providing
TOTF services.
Subject to the terms of this Agreement, Astal agrees to provide TOTF MEMBER
with TOTF services which will enable you to establish a commercial presence
within TOTF on the World Wide Web (the "Site").
Your Site will contain materials created by you (the "Content") which may
be
accessed by users of the World Wide Web through TOTF.
Astal also agrees to provide you with such other services that Astal may
decide to offer
as part of its TOTF program.
2. TOTF account Requirements.
On behalf of yourself and
TOTF Account you warrant and represent that you are at least eighteen years
old and are authorized to enter into this Agreement.
You agree to use TOTF Account
in a manner consistent with all applicable local, state, national and international
laws and regulations, the TOTF Account contents guidelines and otherwise
in accordance with this Agreement.
3.Price and Payment.
As part of the TOTF Account registration process,
each TOTF account designates
a credit card for the payment of TOTF service fees.
You hereby agree that Astal
is authorized to charge your designated card.
Your card issuers agreement
governs your use of the designated card, and you must refer to such agreement
and not this Agreement with respect to your rights and liabilities as a
cardholder.
TOTF MEMBER must provide
Astal with valid credit card information and Astal will automatically charge
TOTF MEMBER's account at the beginning of each TOTF PERIOD of service.
If payment cannot be charged
to TOTF account's credit card or TOTF MEMBER's charge is returned to Astal
for any reason, Astal reserves the right to either suspend or terminate
TOTF MEMBER's TOTF services, or terminate this Agreement and all obligations
of Astal hereunder, and all outstanding amounts due shall be paid directly
by you.
Current rates for using
TOTF Account may be obtained and reviewed at http://www.astal.com/totf/billing.html.
Such rates exclude all sales, use, value-added, personal property or other
governmental tax or levy imposed on the goods or services, other than taxes
based on net income or profits of Astal, all of which are the responsibility
of TOTF Account.
An explanation of Astal's
billing practices is provided at http://www.astal.com/totf/billing.html.
If Astal does not receive
the full amount of your TOTF Account balance within thirty (30) days
of the due date, an additional 1.5% (or the highest amount allowed by law,
whichever is lower) per month late charge may be added to your bill and
shall immediately become due and payable.
TOTF MEMBER shall also be
liable for all attorney and collection fees arising from Astal's efforts
to collect any unpaid balance due.
Unless you notify Astal
and TOTF SITE of any discrepancies within ninety (90) days after they first
appear on your account statement, they will be deemed acceptable by you
for all purposes, including resolution of inquiries made by your card issuer.
You release Astal and TOTF
from all liabilities and claim of loss resulting from any error or discrepancy
that is not reported to Astal within ninety (90) days of its publication.
4. Changes to the Terms of
this Agreement.
At any time Astal may modify
this Agreement including, without limitation, to change the amount of,
or basis for determining, any fees or charges for Astal, and to institute
new fees or charges, or change the services offered. Astal will give
notice of such changes to TOTF Accounts by means of a general notice posted
by electronic mail to TOTF MEMBER 's e-mail address on record in TOTF Account
information, and/or by written communication sent by fax to TOTF MEMBER's
current address
of record in Astal account
information.
Your continued use of TOTF
following any such change shall be deemed acceptance of such change.
Your service fee is payable in advance for each month and is not refundable
in whole or part.
You are responsible for
all charges associated with, among other things, operating your TOTF Account,
including, but not limited to, the cost of connecting to TOTF and modifying
your Account. You are also responsible for all charges associated with
collecting payments from your customers.
5. Duration and Termination
of Agreement.
This Agreement will continue
unless terminated by either party. You may terminate this Agreement
at any time, for any reason, including, but not limited to, if any change
to this Agreement is unacceptable to you.
Astal agrees that it will
terminate TOTF Account upon notice from TOTF MEMBER.
Astal may terminate your
account if you breach any terms in this Agreement.
If termination occurs within
the first thirty (30) days of TOTF Account signing up for the service,
TOTF MEMBER will be refunded
all initial subscription fees,
but TOTF MEMBER will still
be obligated to pay any other charges incurred.
If Astal terminates an account
for breach of TOTF Content Guidelines at any time TOTF Account
will not be entitled to any refund of any fees.
If TOTF account cancels
a service after thirty (30) days of signing up for the TOTF service, no
refund of the initial fee will be made, and TOTF MEMBER shall be responsible
for all fees incurred, including the service fee for the month in which
the Agreement terminates.
If TOTF account has a balance
due on any Astal account upon termination, TOTF account agrees to pay these
amounts.
Astal and TOTF may terminate
this Agreement at any time, for any reason, by sending notice to TOTF MEMBER
at the current e-mail address on record with TOTF.
In the event Astal or TOTF
terminates this Agreement without cause; TOTF will refund to TOTF MEMBER
the pro-rated amount of fees, which have been pre-paid to Astal by TOTF
Account pursuant to this Agreement for the time period subsequent to the
termination date.
TOTF MEMBER agrees that
this will be Astal and TOTF maximum liability resulting from any termination
of this Agreement by Astal or TOTF.
6. LIMITATION OF TOTF and/or
Astal LIABILITY AND WARRANTY.
TOTF MEMBERAGREES THAT ITS
USE OF TOTF ACCOUNT IS ENTIRELY AT TOTF MEMBER'S OWN RISK. TOTF SERVICES
HEREUNDER ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY REGARDING THE NUMBER
OF POTENTIAL CUSTOMERS WHO MAY ACCESS THE SITE, OR FOR INFORMATION, SERVICES,
OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION
WITH ASTAL OR TOTF, INCLUDING
WITHOUT LIMITATION THE TOTF SOFTWARE LICENSED TO THE TOTF MEMBER, THE CONTENT,
INFORMATION, LINKS OR RESULTS OBTAINED THROUGH TOTF OR LINKS THEREON.
SPECIFICALLY, TOTFAND
ASTAL DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION:
1) ANY WARRANTIES CONCERNING
THE AVAILABILITY, ACCURACY OR CONTENT OF INFORMATION, PRODUCTS OR SERVICES;
AND
2) ANY WARRANTIES OF TITLE
OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY
ANY REASON, INCLUDING BUT NOT LIMITED TO FAILURE OF PERFORMANCE, ERROR,
OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION,
COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED
ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT,
TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
TOTF MEMBER SPECIFICALLY
ACKNOWLEDGES THAT TOTF IS NOT LIABLE FOR THE DEFAMATORY, LIBELOUS OFFENSIVE
OR ILLEGAL CONDUCT OF OTHER TOTF MEMBERS,
TOTF HOMESTEADERS OR THIRD
PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH
TOTF MEMBER.
NEITHER ASTAL NOR TOTF NOR
ANY OF ITS AGENTS OR AFFILIATES SHALL BE LIABLE FOR ANY EXEMPLARY, SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF
THE USE OF TOTF OR INABILITY TO GAIN ACCESS TO OR USE TOTF/TOTF ACCOUNT
OR OUT OF ANY BREACH OF ANY WARRANTY OF ASTAL, EVEN IF ASTAL HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. ASTAL AND TOTF, TOTAL LIABILITY FOR
ACTUAL DAMAGES, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID
BY TOTF MEMBER TO Astal UNDER THIS AGREEMENT.
7.Breach of Security.
If TOTF MEMBER has reason
to believe that its account or method of payment is no longer secure (for
example, in the event of a loss, theft or unauthorized disclosure or use
of TOTF MEMBER'S ID, password, or any credit card number stored on or used
by TOTF), TOTF MEMBER must promptly change TOTF MEMBER's password and charge
card information, notify TOTF of the problem by notice given as described
in this Agreement to minimize possible liability for any unauthorized charges
to TOTF MEMBER's account.
8.Rights and Responsibilities.
TOTF MEMBER agrees and warrants
that the Site shall not be used by TOTF MEMBER for any unlawful activities,
and shall comply with all TOTF content guidelines.
In particular, TOTF account
agrees and warrants that the Site shall not contain any Content that is
subject to any copyright, patent, trademark, trade secret, right of publicity
or privacy, or any other proprietary right of any third party ("Intellectual
Property Rights") unless TOTF MEMBER is the owner or legally authorized
user of such rights.
By submitting Content to
reside on TOTF you automatically grant and warrant that the owner
of such Content has expressly granted TOTF and Astal the royalty-free,
perpetual, irrevocable, non-exclusive right and license to utilize such
Content and/or to incorporate it in other works in any form, media, or
technology now known or later developed for the full term of any Intellectual
Property Rights that may exist in such Content for the purposes of this
Agreement.
9.Prohibited Conduct.
TOTD may elect at its sole
discretion to monitor some, all or none of the areas of TOTF for adherence
to this Agreement and its content guidelines. If notified or otherwise
becomes aware of actions of a TOTF MEMBER that is alleged not to conform
to the Agreement, Astal and TOTF may investigate the allegation and determine
in good faith and in its sole discretion whether to remove or request the
removal of Content from TOTF Account or terminate this Agreement. Astal
or TOTF shall have no liability or responsibility to you in respect
of its performance or non-performance of such activities.
By using TOTF, you agree
that you will not transmit, link, post or store or perform any of the following
in or on the Site, or within TOTF or other locations on the Internet, Content
or other information or communications that:
9.1. libels, defames,
abuses or threatens others.
9.2. is bigoted,
hateful or racially offensive.
9.3. advocates illegal
activity or discusses illegal activities with the intent to commit them,
including, but not limited to, computer hacking or cracking.
9.4. is vulgar, obscene
or indecent language or images.
9.5. harass, threaten,
embarrass or cause distress, unwanted attention or discomfort
upon another TOTF MEMBER or user of TOTF or other person or entity.
9.6. is sexually
explicit images or other content, which is deemed by to be offensive.
9.8. is an impersonation
of any person, including but not limited to, a Astal officer,
employee, homesteader or community leader, under a false name or a name
that you are not entitled or authorized to use.
9.9. disrupts the
normal flow of data in TOTF in a manner that negatively affects
TOTF, other TOTF Accounts, users, individuals or entities.
9.10. is a sweepstakes,
lottery, chain letters or pyramid schemes.
9.11. violate any
operating rule, policy or guideline of any other interactive service.
9.12. intentionally
or unintentionally violate any applicable local, state, national or international
law or ordinance, including but not limited to any regulations having the
force of law.
9.13. is an unauthorized
copy of copyrighted photographs, drawings, graphics, text or other
writings, computer programs or other software, recordings video, animation,
music or designs;
infringes upon the Intellectual Property Rights of any person or entity;
in an unfair, unlawful or deceptive business practice.
9.14 violates any privacy
or data protection laws applicable to the gathering, processing,
storing, transmitting and use of user or customer information.
TOTF MEMBER shall maintain the strict confidentiality of all user information
unless otherwise lawfully consented to by the user, or in the case of a
minor,
by the user's parent or guardian.
10. Burden of Proof.
The burden of determining that any information, software or any other Content
in TOTF is not protected by Intellectual Property Rights rests
with the TOTF MEMBER.
11. Use of TOTF Materials.
All softwares,source codes, ideas, techniques, algorithms and methods or
rights,
whether considered to be Intellectual Property Rights or not, thereto owned
by Astal
at the time this Agreement is executed, and which are employed by Astal
in connection with TOTF,or any of Astal sites and/or softwares, shall be
and remain
the property of Astal.
Astal and TOTF grants to TOTF MEMBER a non-exclusive, non-transferable,
limited license to
use TOTF and TOTF softwares solely in conjunction with the TOTF.
Astal reserves the right to suspend or terminate at its discretion TOTF
Account
or this Agreement to require the removal of links or other Content
on or through TOTF Account
or links or other content on or through TOTF Account's webpages or links
cause potential liability.
for Astal
and/or TOTF, or undue strain on TOTF server(s) either through excessive
hits
or by excessive bandwidth demand.
12. Use of TOTF Account Content.
TOTF MEMBER hereby grants to TOTF a non-exclusive, transferable, license,
subject to the termination or expiration of this Agreement, to store and
maintain
the Content on the Server for the benefit of TOTF Account
in accordance with this Agreement.
Astal
and TOTF may make such copies of the Content and Account as may be
reasonably
necessary to perform its obligations under this Agreement,
or enforce
the terms.
hereof,
including making back-up copies of the Content
Astal
and TOTF may also make any other use of the Content or Site in order to
promote TOTF Site.
13. TOTF MEMBER Warranties.
TOTF MEMBER represents and warrants that:
(1) it has full authority to enter into this Agreement.
(2) all obligations owed to third parties with respect to the activities
contemplated
to be undertaken by TOTF MEMBER pursuant to this Agreement are or will
be fully satisfied
by TOTF MEMBER, so that Astal will not have any obligations with respect
thereto.
(3) TOTF account will comply with all applicable federal, state and local
laws in the performance
of its obligations hereunder, and
(4) no materials provided by TOTF MEMBER for inclusion in TOTF will be
false or deceptively
misleading to the public, or infringe any copyright, patent, trademark,
trade secret,
right of publicity or privacy, or any other proprietary right of any third
party or other proprietary
right.
14. Indemnification.
TOTF MEMBER agrees to defend, indemnify and hold Astal and TOTF,
and its affiliated companies,
harmless from any claims and expenses (including, but not limited to attorney's
fees)
from any claim which may arise from a breach of terms of this Agreement.
Astal reserves the right to choose counsel to represent Astal and TOTF
to defend any such claim.
15. Choice of Law and
Arbitration.
This Agreement will be governed by and construed in accordance
with the laws of ISRAEL
without giving effect to its conflicts-of-laws principles.
All disputes and claims relating to this Agreement and Astal and/or TOTF
products and services,
any other claims or causes of action relating to the performance of this
Agreement shall be settled
totally and finally by arbitration in
Tel Aviv - Israel , or such other location as Astal prescribes.
If a TOTF MEMBER files a claim or counterclaim against
Astal and/or TOTF, the TOTF MEMBER
shall do so on an individual basis and not with any other TOTF
account or as part of a class action.
Punitive damages may not be awarded by the arbitrator.
The decision of the arbitrator shall be final and binding on
the parties and may, if need be,
be reduced to a judgment in any court of competent jurisdiction.
This agreement to arbitrate shall survive any termination or expiration
of this Agreement.
16.Purchasing Products and
Services through TOTF.
TOTF
does not endorse, warrant or guarantee any product or service offered through
TOTF
and will not be a party to or in any way monitor any transaction between
you and
third-party providers of products or services.
You understand
that neither TOTF nor Astal nor any of its affiliates controls, provides,
operates
or is responsible for any Content, goods or services available on the Internet.
All such
Content, goods and services are made accessible on the Internet by independent
third parties and are not part of TOTF or TOTF Account or controlled
by Astal neither endorses nor is responsible for the accuracy or reliability
of such Content, goods or services.
Nor Astal
nor TOTF guarantee the accuracy, completeness, usefulness, quality
or availability of
any Content, goods or services and your use thereof is solely at your own
risk.
Neither
Astal nor TOTF nor its affiliates shall be held responsible or liable,
directly or indirectly, for any loss or damage caused or alleged to have
been caused by your use of or reliance on
any Content, goods or services or your inability to access the Internet
or any site on the Internet.
The foregoing
provisions of this paragraph shall apply with equal force even where Astal/TOTF
features or displays a link with any particular Web site.
TOTF MEMBER agrees
that it will not, without the written consent of TOTF in each instance:
(1) use
in advertising, publicity or otherwise (including, without limitation,
on the Internet)
the name of TOTF, any trademark, trade name, symbol or any abbreviation
or contraction thereof owned by or referring to Astal or
(2) represent,
directly or indirectly, that any product or service offered by TOTF MEMBER
has been approved by or endorsed by TOTF.
17. Privacy.
Except as otherwise described in this Section, TOTF will not disclose to
an unaffiliated
third party your name, address, phone number, credit card, debit card,
banking information, electronic funds transfer information, e-mail or alias
e-mail address, or other specific personal
identifying information, unless you provide express written permission
in advance, or it is directed by a search warrant or court order to release
such information,
or unless governmental agencies request this information, or unless required
by law.
In the event that a third party (including governmental agencies) makes
an allegation that TOTF MEMBER is engaged in unlawful activities
through its use of TOTF, Astal reserves the right, in its sole discretion,
to take the action it deems necessary and appropriate under the circumstances,
and TOTF MEMBER hereby consents to Astal release of personally
identifying information, if Astal deems it necessary and appropriate under
the circumstances, without the necessity of judicial process.
18. Partial Invalidity.
Should any provision of this Agreement be held to be void, invalid or inoperative,
the remaining provisions of this Agreement shall not be affected and shall
continue
in effect and the invalid provision shall be deemed modified to the least
degree necessary to remedy such invalidity.
19. No Waiver.
The failure of either Party to partially or fully exercise any right or
the waiver by either Party of any breach, shall not prevent a subsequent
exercise of such right or be deemed a waiver of any subsequent breach
of the same or any other term of this Agreement.
20. Non-Transferability.
This Agreement is personal to TOTF account and is non-exclusive,
non-assignable and non-transferable without the written consent of Astal.
21. Entire Agreement.
This Agreement comprises the entire agreement between Astal-TOTF
and you,
and supersedes any prior agreements between you and
Astal or TOTF with respect to the subject
matter this Agreement.
I
HAVE READ AND UNDERSTAND THIS TOTF Services Agrement,
AND
SOFTWARE End -User License Agrement, and Terms
Of Use
AND
AGREE TO BE BOUND BY ALL OF THE TERMS AND AGREMENTS .
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