MEMBERSHIP TERMS OF SERVICE
Welcome to mobibird.com, Chase Merchant Services eWEBuilder Service. Chase Merchant Services eWEBuilder Service provides the web site Chase Merchant Services eWEBuilder Service and all services offered through the web site (collectively the "Site"), subject to the following Membership Terms of Service Agreement ("Agreement"). Your access to and use of the Site is governed by this Agreement. As used in this Agreement Chase Merchant Services eWEBuilder Service "We", "Us", or "Our" refers to Chase Merchant Services eWEBuilder Service Inc. "You" or "Your" refers to you, a business or nonprofit organization subscribing this Site.
1. ELECTRONIC TRANSACTIONS
Communications and transactions at this Site are conducted electronically. Chase Merchant Services eWEBuilder Service may provide all communications, disclosures, and notices electronically including, without limitation, in text on a web page or via email to any email address you may provide. If you do not wish to deal with Chase Merchant Services eWEBuilder Service electronically, please do not use this Site.
All electronic records are deemed sent when properly addressed and when they enter an information processing system outside the control of the sender. All electronic records are deemed received when the record enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records of the type sent, in a form capable of being retrieved from that system.
2. DESCRIPTION OF SERVICE
The Site currently permits businesses and nonprofit organizations to maintain a business presence on the Internet via personalized web pages. Unless explicitly stated in any offer from Chase Merchant Services eWEBuilder Service to amend this Agreement, any new features that augment or enhance the current Site, including the release of new Chase Merchant Services eWEBuilder Service features and services, are subject to this Agreement.
3. LICENSE TO USE THE SITE
Chase Merchant Services eWEBuilder Service hereby grants you a non-exclusive, non-transferable, personal license to access and use the Site solely as necessary to create and manage personalized web pages solely in connection with the operation of a licensed business ("Account"). Except for the license in this Section 3, Chase Merchant Services eWEBuilder Service retains all right, title, and interest in and to the Site. Subject to applicable law, Chase Merchant Services eWEBuilder Service reserves the right to suspend or deny, at its sole discretion, your access to all or any portion of the Site with or without notice. You may not access or use the Site or any portion of the Site if such access would violate any law. We advise you to retain a copy of this Agreement. Permission to reprint or electronically reproduce any content available on the Site, in whole or in part for any purpose other than as necessary to create and manage your Account is expressly prohibited, unless you have obtained prior written consent from Chase Merchant Services eWEBuilder Service. The Site is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws under both United States and foreign laws. All rights not expressly granted herein are reserved to Chase Merchant Services eWEBuilder Service and its licensors.
4. PROTECT YOUR PASSWORD: YOU AUTHORIZE ALL USES MADE OF IT.
You are responsible for maintaining the confidentiality of the password that you choose to access and use the Site and your Account. Subject to applicable law, you agree to be liable for all uses of your Account whether or not actually authorized by you, including but not limited to access to your Account information through the "Manage your Site" feature. This means that you should not supply your password to anyone who is not authorized to take actions for you.
6. CONDUCT ON THE SITE
You understand that all information, data, text, files, software, music, sound, photographs, graphics, video, messages whether posted or transmitted by you through your Account and the Site, are your sole responsibility. This means that you, and not Chase Merchant Services eWEBuilder Service, are entirely responsible for all content that you or users of your web site upload, post or otherwise transmit via the Site. Chase Merchant Services eWEBuilder Service does not control the content on this Site and does not guarantee the accuracy, integrity or quality of any content. You understand that by using the Site, you may be exposed to content that is offensive, indecent or objectionable. Further, you agree to not use the Site to:
- upload, post or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, slanderous, vulgar, obscene, libelous, invasive of another's privacy, hateful, embarrassing, or racially, ethnically or otherwise objectionable to any other person or entity as determined by Chase Merchant Services eWEBuilder Service in its sole discretion;
- impersonate any person or entity, including, but not limited to, a Chase Merchant Services eWEBuilder Service staff, or falsely state or otherwise misrepresent your affiliation with a person or other entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Site or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
- upload, post or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any party or the privacy or publicity rights of others;
- upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- upload, post or otherwise transmit any content that contains viruses or any other computer code, files or programs which interrupt, destroy, limit the functionality of, or cause damage to any computer software or hardware or telecommunications equipment;
- disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Site are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
- interfere with or disrupt the Site or servers or networks connected to the Site, or fail to comply with any requirements, procedures, policies or regulations of networks connected to the Site;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations having the force of law;
- "stalk," harass, or otherwise harm another;
- collect or store personal data in violation of any laws governing privacy;
- promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals;
- use your Account as storage for remote loading or as a door or signpost to another home page, whether inside or beyond the Site;
- reproduce, duplicate, copy, sell, resell or exploit any portion of the Site, use of the Site, or access to the Site.
- engage in any other conduct that inhibits any other person from using or enjoying the Site;
- engage in any other behavior on the Site, which in Chase Merchant Services eWEBuilder Service's sole discretion is unacceptable.
Chase Merchant Services eWEBuilder Service may (but is not obligated) to remove your content and terminate your Account and access to the Site for any reason, with or without notice to you, including without limitation, your web page or any listings on your web page that do not conform with the rules for the Site.
7. CONTENT SUBMITTED TO THE SITE
By submitting content to the Site for any purpose, including use in connection with your Account, you grant Chase Merchant Services eWEBuilder Service a world-wide, royalty-free, perpetual, irrevocable, non-exclusive license to use, copy, reproduce, modify, create derivative works from, adapt, and publish, edit, translate, sell, distribute, publicly perform and display the content without any limitation and in any media or any form now known or later developed for the purpose of providing you services under this Agreement. You acknowledge that Chase Merchant Services eWEBuilder Service does not pre-screen content, but that Chase Merchant Services eWEBuilder Service and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Site. You agree that you must evaluate and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
You agree to defend, indemnify and hold harmless Chase Merchant Services eWEBuilder Service, and its subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, due to or arising out of your content, your use of the Site or your Account, your violation of this Agreement or any third party's rights. Chase Merchant Services eWEBuilder Service reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from you, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Chase Merchant Services eWEBuilder Service if the settlement would affect Chase Merchant Services eWEBuilder Service ability to provide the Site.
Chase Merchant Services eWEBuilder Service may terminate this Agreement and your access to the Site upon thirty (30) days notice without cause. Chase Merchant Services eWEBuilder Service may terminate this Agreement and your access to the Site immediately if you breach this Agreement. In the event that Chase Merchant Services eWEBuilder Service terminates this Agreement without cause and you have prepaid for services, you may request a refund of any undisputed prepaid fees.
We may provide, or third parties may provide, links to other Internet sites or resources. Chase Merchant Services eWEBuilder Service is not responsible for and does not endorse the informational content or any products or services available through other Internet sites or resources, and does not make any representations regarding its content or accuracy. We do not control any third party Internet sites and we are not liable for any technological, legal, or other consequences that arise out of your visit or transactions there. Your use of third party Internet sites is at your own risk and subject to the terms and conditions of use for such sites. This means that we are not your agent and will not be a party to any agreement that you may enter at third party Internet sites.
You represent and warrant for the benefit of Chase Merchant Services eWEBuilder Service and Chase Merchant Services eWEBuilder Service licensors, suppliers, and any third parties mentioned on the Site that: (a) you possess the legal right and ability to enter into and make the representations and warranties contained in this Agreement; (b) all information that you submit to us is true and accurate; (c) you will keep your registration information current; (d) you will be responsible for all use of your Account even if such use was conducted without your authority or permission; (e) you will not use the Site for any purpose that is unlawful or prohibited by this Agreement; and (f) all content submitted to the Site is owned by you and Chase Merchant Services eWEBuilder Service use of the content does not infringe or violate the intellectual property or other rights of any third parties; and (g) you have a valid business license.
12. DISCLAIMER OF WARRANTIES
THIS SITE AND ALL INFORMATION ACCESSIBLE ON OR THROUGH IT IS PROVIDED "AS IS," "AS AVAILABLE," "WITH ALL FAULTS," AND WITHOUT WARRANTY OF ANY KIND. Chase Merchant Services eWEBuilder Service GIVES NO EXPRESS WARRANTIES AND DISCLAIMS: (A) ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; AVAILABILITY OF THE SITE; LACK OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, CURRENCY, OR USEFULNESS OF ANY CONTENT ON THE SITE; AND (B) ANY DUTIES OF REASONABLE CARE, WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE IN CONNECTION WITH THE SITE OR CONTENT AVAILABLE ON IT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IN CONNECTION WITH THE SITE AND CONTENT AVAILABLE ON IT IS BORN BY YOU.
IN ADDITION, Chase Merchant Services eWEBuilder Service DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT IN CONNECTION WITH THE SITE AND INFORMATION AVAILABLE ON IT.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL Chase Merchant Services eWEBuilder Service BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, PERSONAL INJURY, FAILURE TO MEET ANY DUTY INCLUDING ACTS OF GOOD FAITH OR OF REASONABLE CARE, LACK OF NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE THIS SITE AND ANY INFORMATION AVAILABLE ON IT, THE DELAY OR INABILITY TO USE THE SITE OR ANY INFORMATION, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF Chase Merchant Services eWEBuilder Service AND EVEN IF Chase Merchant Services eWEBuilder Service HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 12 AND 13 MAY NOT APPLY TO YOU.
14. THIRD PARTY BENEFICIARY
Chase Merchant Services eWEBuilder Service will provide the web site development and maintenance services for Chase Merchant Services eWEBuilder Service as anticipated under this Agreement. You hereby agree that Vista is a third party beneficiary to this Agreement and will enjoy all the rights and privileges of Chase Merchant Services eWEBuilder Service as set forth herein.
15. EXPORT CONTROLS
You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to your web site(s) hosted by Chase Merchant Services eWEBuilder Service any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
16. AMENDING THIS AGREEMENT
This Agreement constitutes the entire agreement between you and Chase Merchant Services eWEBuilder Service about this Site and your use of it and it supercedes any prior or contemporaneous communications or displays whether electronic, oral, or written between you and Chase Merchant Services eWEBuilder Service regarding the Site (including, but not limited to, any prior versions of the Agreement). Except as described below in Section 17 regarding changes to fees, this Agreement may not be amended except by a specific offer from Chase Merchant Services eWEBuilder Service designated as an offer to amend its terms which is accepted by you in the manner indicated in the offer. If you accept the amended terms, they supercede any previous terms in the Agreement (or any amended version of the Agreement). If you do not accept the amended terms, you may terminate the Agreement and request a refund of any undisputed prepaid fees.
17. FEES; PAYMENT
Your use of the Site and your Account is subject to fees that Chase Merchant Services eWEBuilder Service sets from time to time. Chase Merchant Services eWEBuilder Service reserves the right to change its services or any fees charged for them upon 30 days' notice. If you do not agree to changes in fees, you may terminate your Account. You are responsible to pay Chase Merchant Services eWEBuilder Service for all fees, duties, taxes, and assessments arising out of your use of this Site and your Account. Current applicable charges for the services are due in advance of each month for which the services are provided. If any service, other than the basic service plan, is selected by you, payment shall be due in full upon ordering the service. Only valid credit cards acceptable to Chase Merchant Services eWEBuilder Service may be used for orders placed at the site, and all refunds will be credited to the same card. By submitting your order for processing, you authorize us to charge your order (including taxes and any amounts shown to you before submission) to your card. If your card cannot be verified, is invalid, or is not otherwise acceptable, your order will be suspended automatically and we will send you an e-mail notice. You must resolve any problem within the time stated in the email notification or your order will be cancelled without further notice. You will also be liable for all attorney and collection fees arising from Chase Merchant Services eWEBuilder Service efforts to collect any unpaid balance of your Account(s).
18. GENERAL INFORMATION
This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between you and Chase Merchant Services eWEBuilder Service. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever.
Your rights and obligations under this Agreement shall not be transferred or assigned directly or indirectly without the prior written consent of Chase Merchant Services eWEBuilder Service.
This Agreement and the relationship between you and Chase Merchant Services eWEBuilder Service are governed by the laws of the State of New York without regard to its conflict of law provisions. You and Chase Merchant Services eWEBuilder Service agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Suffolk, New York. The failure of Chase Merchant Services eWEBuilder Service to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, then the provision (or portion) will be deemed superseded by valid enforceable language that most clearly matches the intent and allocation of risk in the original provision (or portion), and the other provisions of this Agreement remain in full force and effect. 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 this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Agreement are for convenience only and have no legal or contractual effect.