VISUALSERVER™ TERMS OF SERVICE
Please read and agree to these Terms before using VisualServer hosting and content management services. By setting up a VisualServer account, you agree to be bound by all the terms and conditions of this Agreement.
ďVisualServerĒ is an online, fee-based website hosting and self-administered content management service owned and operated by PHOTO-EYE, LLC, presently at 376 Garcia Street, Suite A, Santa Fe, NM 87501. "User" means any person who establishes or accesses any connection to VisualServer.com Web site for access to or use of the VisualServer service, or who has a website hosted by VisualServer.
2. DESCRIPTION OF SERVICE
The VisualServer service provides the User with the capability to create and/or manage their website via the World Wide Web by using the VisualServer server(s) and VisualServer content management system, with features as described on the site (which may be supplemented or changed from time to time without notice). The user accesses the VisualServer content manager or administration tool by having their site hosted by VisualServer. Fees are based on the number of images the user chooses to show on their hosted site.
(A) In consideration for this Service, User agrees to comply with the terms and conditions stated in these Terms of Service. If any information provided by User is incomplete or inaccurate or directly or indirectly violates any provision of the Terms of Service, VisualServer may limit or terminate User's use of and access to the Service. By setting up a VisualServer account, User agrees to comply with all of the terms and conditions hereof. The right to use VisualServer is personal to User and is not transferable to any other person or entity. User is responsible for all use of User's Account and for ensuring that all use of User's Account complies fully with the provisions of this Terms of Service. User shall be responsible for protecting the confidentiality of User's password(s).
(B) VisualServer shall have the right at any time, and without notice, to change, add, delete or discontinue any aspect or feature of VisualServer Service, including, but not limited to, content, programs, hours of availability (e.g., downtime for scheduled maintenance), and equipment needed for access or use.
4. USER RESPONSIBILITIES
(A) GENERAL. User shall use VisualServer for lawful purposes only.
User shall not post or transmit through VisualServer any material which violates or infringes in any way upon any the right of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, promotional of bigotry, racism, or hatred, spam or unauthorized volume email or solicitation or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise intentionally or unintentionally violate any law, or which, without VisualServer's express prior written approval, contains advertising or any solicitation with respect to products or services. Any conduct by a User that in VisualServer's discretion either (a) restricts or inhibits any other User from using or enjoying VisualServer, or (b) reduces or interferes with VisualServerís ability to manage, operate, and/or modify the site, will not be permitted. User shall not use their website to advertise or perform any third-party commercial solicitation, including, but not limited to, the solicitation of users to become Users of other online information services competitive with VisualServer or forge headers or otherwise manipulate technical information or identifiers to disguise the origin of any posting or email to or from the site. If VisualServer determines that a userís web site is pornographic in nature with no artistic value, VisualServer may terminate this agreement. If this agreement is terminated for any reason, no monies will be refunded.
(C) INTELLECTUAL PROPERTY
The VisualServer website and content management programs contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of VisualServer.com Web site and content manager are copyrighted as a collective work under the U.S. copyright laws. VisualServer owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, publicly distribute, publicly display or in any way exploit, any of the content, in whole or in part. Except as otherwise expressly permitted as to some particular, specified downloaded item(s) under copyright law, no copying, redistribution, retransmission, publication, modification, public display, public distribution, or commercial exploitation of downloaded material will be permitted without the express written permission of both. The User agrees that VisualServer has no control of the copying or misuse of the Userís content on their on individual website hosted by VisualServer.
(D) PUBLICATION LIMITATIONS
1. Prohibition. User shall not upload, post, submit, link, or otherwise make available on their Web site hosted by VisualServer any material protected by copyright, trademark or other proprietary right without the express permission of the confirmed owner(s) of the all the copyright, trademark or other proprietary rights and the burden of determining that any material is not protected by copyright rests with the User. You warrant that moral rights (sometimes called right of attribution or paternity and right of integrity or against modification) in any uploaded material have been waived and hereby waive such rights by posting.
2. Responsibility / Sole Liability. User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a publication.
3. By publishing images and text not owned by the User, User automatically grants, or warrants that the owner of such material has expressly granted to the User the royalty-free, perpetual, irrevocable, non-exclusive, worldwide, fully sublicenseable right and license to use, reproduce, modify, adapt, publish, translate, publicly display, and publicly distribute such material (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term and any renewal term(s) of any copyright that may exist in such material.
(E) EMAIL LIMITATIONS
User agrees not to use the Service to send unsolicited bulk e-mails ("spam"), which constitutes misuse of the Service.
(F) PROPRIETARY SOFTWARE PROTECTION
User shall not copy, distribute, reverse engineer, license, or resell the VisualServer software or template designs, or any web site content created with VisualServer.
(G) USER LINKS
User agrees to periodically verify and maintain all links published on their website hosted by VisualServer.
(H) NOT FOR PERMANENT STORAGE
VisualServer is not a storage facility for original files. User agrees to create, identify/label, and separately keep safely copies of all files uploaded to VisualServer in case of file corruption, deletions, hardware failure, or any other reason that a file is no longer deemed accessible.
(I) BANDWIDTH LIMITS
Users typically have ample monthly traffic bandwidth for normal needs. However, to protect other VisualServer Users, each service level does have a bandwidth limitation. Traffic is not automatically throttled. Instead, we reserve the right to limit a Userís monthly bandwidth to 1 GB (Lite), 2 GB (Standard), and 5 GB (Professional). Additional bandwidth may be negotiated at any time depending upon a Userís needs. The User will be contacted by a VisualServer administrator if ever their monthly bandwidth is exceeded.
Userís account must be in kept in good standing. All fees must be paid in advance. If a userís account is no longer paid in full, VisualServer reserves the right to remove the site entirely within 30 days of non-payment.
5. ADVERTISING AND PROMOTION
User agrees to allow VisualServer the right to exhibit the public area of a Userís website on the VisualServer.com website, e-mail newsletter, or other venues where VisualServer advertises in order to promote the VisualServer service.
VisualServer shall have the right, but not the obligation, to directly or indirectly monitor the content of any website hosted by VisualServer without notice to you, to determine compliance with this Terms of Service and any operating rules established by VisualServer and to satisfy any law, regulation or authorized government request. VisualServer shall have the right in its sole discretion to edit, refuse to publish, or remove any material published on a Userís Web site. Without limiting the foregoing, VisualServer shall have the right to remove without notice to you any material that VisualServer, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
7. CHANGES IN TERMS
VisualServer shall have the right at any time to change or modify these terms and conditions. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof which may be given by means including but not limited to posting on VisualServer.com Web site, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use or access of VisualServer hosting service and content manager (see above) by User after such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.
8. LIMITATION OF LIABILITY
Under no circumstances, including but not limited to negligence, shall VisualServer be liable you or any third party for any special, incidental or consequential damages that result from the use of, or the inability to use, the materials in this site, even if VisualServer or a VisualServer authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability or special, incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no event shall VisualServer's total liability to you or any third party for all damages, losses, and causes of action whether in contract, tort (including, but not limited to, negligence or otherwise) exceed the amount paid by you, if any, for using these services.
9. JURISDICTIONAL ISSUES
These Web sites and services are controlled by VisualServer and VisualServer makes no representation that materials in the site are appropriate or available for use outside the U.S. Many of the images used here are for use in the U.S. only and those who choose to access these images from outside the U.S. do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. This Terms of Service shall be governed by and construed in accordance with the internal laws of New Mexico, without giving effect to any principles of conflicts of law. Any litigation regarding any Use or these Terms of Service must be filed and heard solely in Santa Fe, Mexico.
User agrees to fully defend, indemnify and hold harmless VisualServer, its affiliates, information providers, content partners, suppliers, and advertisers, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees and related costs, arising out of any violation of these Terms of Service or rights of any third party, use of or access to VisualServer.com Web site by User or User's Account.
11. TERM AND TERMINATION
For trial accounts, the term of the agreement is 7 days from the day User sets up a trial account. For paid accounts, the term of this agreement ends when the Userís time period expires. All account payments are non-refundable. We reserve the right to terminate this agreement and the Userís account (with notice) if User has been found to be in violation of this agreement. If termination is made, no refund will be given on any remaining unused service time period.
12. DISCLAIMER OF WARRANTIES
THE SERVICES HEREUNDER ARE PROVIDED ON AN ďAS ISĒ BASIS. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, SUBJECT TO THE TERMS OF THIS AGREEMENT. WE MAKE NO WARRANTY, EITHER EXPRESSED OR IMPLIED, ABOUT OUR EQUIPMENT OR SERVICES. WE DISCLAIM ALL WARRANTIES, EXPRESSED, IMPLIED, OR ARISING BY LAW OR CUSTOM INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT WE DO NOT EXERCISE CONTROL OVER THE CONTENT OF INFORMATION PASSING THROUGH THE EQUIPMENT WITH THE SERVICES WE PROVIDE. WE DO NOT TAKE ANY RESPONSIBILITY FOR THE ACCURACY, QUALITY, OR NATURE OF THE INFORMATION OBTAINED THROUGH THE SERVICES WE PROVIDE. WE WILL NOT BE RESPONSIBLE FOR LOSS OF PROPERTY OR INJURY RESULTING FROM ANY DEFECT IN THE EQUIPMENT, ITS INSTALLATION, DISCONNECTION, OR OTHERWISE; OR FOR ANY SERVICE, SERVICE FAILURE, UNAVAILABILITY, OR INTERRUPTION INCLUDING ANY RESULTING FROM CIRCUMSTANCES BEYOND OUR CONTROL. OUR ONLY RESPONSIBILITY FOR ANY FAILURE OR INTERRUPTION OF SERVICES WILL BE TO CREDIT YOUR ACCOUNT FOR ANY DOWN TIME, IF THAT DOWN TIME IS LONGER THAN TWENTY-FOUR HOURS PER MONTH. IN NO EVENT SHALL OUR LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER EXCEED THE AMOUNT OF FEES PAID BY YOU IN THE APPLICABLE MONTH.
13.COPYRIGHT COMPLIANCE - NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
VisualServer respects the intellectual property of others, and we require that our Users do the same. If you believe that your proprietary work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, then provide VisualServer's Copyright Agent the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a specific description of the copyrighted work or other intellectual property that you claim has been infringed (including image content, color or monochrome, etc.);
3. a specific description of where the material that you claim is infringing is located on the site;
4. your full address, telephone number, and email address;
5. a specific statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
VisualServer's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail: VisualServer Copyright Agent, c/o PHOTO-EYE, LLC, 376 Garcia Street, Suite A Santa Fe, NM 87501
If any provision of these Terms of Service shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the subject matter. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Use of the site or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. You agree that there shall be no third-party beneficiaries to your Use. VisualServer is a trademark of photo-eye and is used to describe its particular services. VisualServer is not responsible for the contents of any third party site to which it may link or refer. You are, and VisualServer is not, responsible for storage of any material or message you post or upload to or receive from VisualServer. VisualServer may assign its rights under these Terms of Service. VisualServer may provide User account information to comply with government order. VisualServer may limit or delete any account that is not used for an extended period of time in VisualServer sole good faith judgment. If VisualServer retains counsel to enforce these Terms of Service, User will reimburse VisualServerís attorneysí fees and related costs. User represents that he/she is over eighteen (18) years of age and able to form a binding contractual commitment.