Vistaprint Hosting Service Member Agreement
1. Acceptance of Terms
2. General Use of the Hosting Service
The Hosting Service is offered to Member conditioned upon Member's acceptance without modification of this Agreement. Member acknowledges that, from time to time, it may be necessary for Vistaprint to update or revise certain provisions of the Agreement. By signing up for the Hosting Service and accepting this Agreement, Member agrees that Vistaprint may change the terms of the Agreement in its sole discretion without specific notice to Member. If Member does not agree to the changes implemented by Vistaprint, Member's sole and exclusive remedy is to cancel Member's subscription to the applicable Hosting Service ("Member's Hosting Service Account").Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Hosting Service shall be subject to this Agreement.
3. Charges and Billing
Member shall not use the Hosting Service, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. Without limiting the generality of the foregoing, Member agrees that Member will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other Website or product, transfer, or sell any information, content, artwork, graphics, software, lists of users, databases or other lists, products or services provided through or obtained from the Hosting Service other than for use as expressly permitted by this Agreement. This means, among other activities, that Member agrees not to engage in the practices of "screen scraping," "database scraping," or any other activity with the purpose of obtaining lists of users or other information. Member agrees that Member will not use the Hosting Service in any manner that could damage, disable, overburden, or impair the Hosting Service or interfere with any other person's use and enjoyment of the Hosting Service. Member may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Hosting Service. Except with the written permission of Vistaprint, Member agrees that Member will not access or attempt to access password protected, secure or non-public areas of the Hosting Service. Without limiting any of Vistaprint’s rights or remedies under this Agreement or available to Vistaprint at law or in equity, if Member violates any of the above restrictions Member's Hosting Service Account may be terminated and Member may be subject to prosecution.
4. Vistaprint Support Services
Vistaprint reserves the right to charge fees for the Hosting Service or any portion thereof and any applicable fees will be posted on the Vistaprint website. If Member is required to pay a fee for all or any part of the Hosting Service for which Member has chosen to subscribe, Member hereby authorizes Vistaprint to charge Member's valid and current credit or debit card in advance for all applicable fees incurred by Member in connection with Member's Hosting Service Account. Member's Hosting Service Account will automatically renew at the end of each applicable subscription period, unless Member's Hosting Service Account is terminated in advance of the end of the then-current subscription period. If there are any annual, monthly or similar periodic subscription fees associated with Member's Hosting Service Account, these fees will be billed automatically to the Member's designated valid and current credit or debit card at the start of each renewal period, unless Member terminates Member's Hosting Service Account before the relevant period begins. If Member registered for the Hosting Service using a Vistaprint promotional code or discount, after the initial promotional period expires, Member's subscription (base package and any purchased upgrades) will automatically be renewed and billing will continue at the then-current prices for the Hosting Service. Member further acknowledges that it is Member's responsibility to notify Vistaprint of any changes to Member's credit card and to update Member's credit card number if Member's credit card has expired, or Member's Hosting Service Account and access to the Hosting Service may be terminated or interrupted. All fees associated with Member's Hosting Service Account shall be paid in the currency referenced on the Vistaprint website at checkout.
Vistaprint reserves the right to change any fees (which includes but is not limited to, increasing prices on existing or new Hosting Services and charging a fee for upgrades and/or a Hosting Service for which Vistaprint does not currently charge a fee) at any time and from time to time, provided, however, that Vistaprint will provide Member with reasonable notice prior to making any fee changes to existing Hosting Services. If Member finds any change to the pricing of any Hosting Service to be unacceptable for Member's continued use of the Hosting Service, Member is free to cancel such Hosting Service and terminate Member's Hosting Service Account at any time, but Vistaprint will not be obligated to refund any remaining portion of Member's pre-paid fees when Member cancels such Hosting Service.
Member agrees to pay Member's Hosting Service Account balance when due. Member also agrees to pay any taxes, including sales, use, value added or other similar taxes, resulting from Member's use of the Hosting Service. Member is responsible and liable for any fees, including attorney and collection fees, that Vistaprint may incur in its efforts to collect any remaining balances due from Member. This Section 3 shall in no way limit any other remedies available to Vistaprint at law or in equity. Member also acknowledges and agrees that Member will be billed for and will pay any outstanding balances if Member's Hosting Service Account is terminated due to Member's breach of this Agreement. Member must notify Vistaprint of any billing problems or discrepancies within sixty (60) days after they first appear on Member's credit card account statement. If Member does not notify Vistaprint within sixty (60) days, Member waives any right to dispute such problems or discrepancies.
|4.1 General Support Services
Vistaprint offers certain phone support services at no additional charge. Phone support is limited to technical questions only. Non-technical questions including, but not limited to, questions relating to design, search engine optimization, marketing planning or similar services, shall not be included in the phone support services offered at no additional charge.
Members may contact Vistaprint Support by dialing 1-800-961-2077, Monday through Friday from 9:00am-10:00pm (Eastern Time).
6. Member Account Limitations
In order for Member to participate in the Hosting Service, Vistaprint will require Member to provide specific information about Member and (if applicable) Member's business. Member agrees to provide true, accurate and complete information and to refrain from impersonating or falsely representing Member's affiliation with any person or entity. Member shall maintain with Vistaprint a valid email address for Member at all times. Member shall be responsible for maintaining the confidentiality of Member's Hosting Service Account and password and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such account and password. Member shall be responsible for all actions by such users, including without limitation present and former employees, partners, agents and representatives, and shall indemnify Vistaprint for such actions as set forth in Section 16.
7. Exchange of Information; Monitoring
Member hereby acknowledges that Vistaprint may, from time to time, in its sole discretion, establish general practices and limits concerning the use of the Hosting Service and Member Site, including without limitation, (a) the maximum number of days that specific Hosting Service offerings, such as email messages, guest book entries, discussion board postings or other content posted on the Member's Site(to the extent available and subscribed for) will be retained by Vistaprint, (b) maximum limits on bandwidth usage that will be allotted to Member, (c) maximum limits on storage space, (d) the maximum number of Member Sites and/or email addresses per Member's Hosting Service Account, (e) the maximum number of photographs or other data (if any) according to the type of Member's Hosting Service Account, (f) maximum limits on the number of pages within each Member Site, and (g) maximum time limitations for the retention of Member Content following any trial periods or account cancellation. Vistaprint further reserves the right to delete at any time, in its sole discretion and without prior notice, duplicate images uploaded for printing. Any of the foregoing limits will be consistent with the Hosting Service (including any upgrades) for which Member has registered. Member agrees that Vistaprint has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Hosting Service, including without limitation any Member Content. Member further acknowledges and agrees that Vistaprint reserves the right to change these general practices and limits at any time, in its sole discretion. If Member finds any such changes to be unacceptable for Member's continued use of the Hosting Service, Member is free to cancel the Hosting Service and terminate Member's Hosting Service Account at any time, but Vistaprint will not be obligated to refund any remaining portion of Member's pre-paid fees.
8. Member Conduct
The Hosting Service enables Members to disseminate and exchange thoughts and opinions to and with other users or the public. Vistaprint is under no obligation, but does reserve the right in its sole discretion, to monitor, pre-screen, filter, modify, refuse and remove any and all such thoughts, opinions, and other Member Content posted through the Hosting Service or stored in its servers without notice at any time. Vistaprint is not responsible for the appropriateness, legality, integrity, accuracy, sufficiency, correctness, veracity, completeness, or timeliness of any such Member Content. Vistaprint also reserves the right to disclose any information or materials belonging to any person or entity as necessary to satisfy any applicable law, rule, regulation, legal process, governmental request or contractual obligation binding upon Member. Member acknowledges that Member should always use caution when posting any personally identifying information about Member or Member's employees on the Hosting Service, the Member Site, or any other user sites.
9. Third Party Content
Member's right to use the Hosting Service is personal to Member and Member's company and its employees (if applicable). Member, and not Vistaprint, is entirely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials and content, as applicable, posted or linked to by Member or its affiliates, agents, employees, representatives, or customers via the Hosting Service, including, without limitation, any such information, data, text, software, music, sound, photographs, graphics, video, messages or other materials and content posted or linked to on any Member Site (including, without limitation, as part of a domain name selected or used by Member) (collectively, “Member Content”). Member, and not Vistaprint, is responsible for compliance with all laws, regulations and ordinances connected with all aspects of the creation, use and maintenance of the Member Content, Hosting Service and Member Sites by Member and its affiliates, employees, agents, representatives and customers. Without limiting the generality of the foregoing, Member, and not Vistaprint, is responsible for compliance with all policies, rules, procedures, regulations, and other terms and requirements of the Internet Corporation for Assigned Names and Numbers (“ICANN”), the applicable registry governing the registration of the domain name associated with the Member Site (each, a “Registry”), and any applicable independent Third Party Domain Name Vendors (collectively, “TPDNVs”) responsible for the registration of the domain name associated with the Member Site. Member shall not use the Member Content, Hosting Service or Member Sites for any illegal purpose in violation of any local, state, federal or foreign law. Member must provide all required and appropriate warnings, information and disclosures, comply with all applicable laws and regulations, and take all other required and appropriate actions in connection with the creation, use and maintenance of the Member Content, Hosting Service and Member Sites by Member and its affiliates, employees, agents, representatives and customers. If the Hosting Service or Member Sites do not provide adequate facility or features for Member to provide such information or take such actions, then Member shall not create, use or access the Member Content, Hosting Service or Member Sites or permit any other party to do so.
With respect to any Member Content, Member Data, or End-User Data (as defined below) on the Hosting Service and Member Sites, Member agrees not to submit, post, upload, transmit or otherwise make available any Member Content, Member Data, End-User Data or other information that:
a. is misleading to others, including but not limited to consumers or other visitors to Member Sites;
b. is unlawful, threatening, abusive, harassing, tortious, defamatory, obscene, harmful, libelous, invasive of another's privacy, hateful, or racially or ethnically objectionable;
c. Member does not have a right to submit, post, upload transmit or otherwise make available under any law (including without limitation data privacy laws or export control restrictions) or under contractual or fiduciary relationships (such as information learned or disclosed as part of employment relationships or under nondisclosure agreements);
d. infringes or violates any party's patent, trademark, trade secret, copyright or other proprietary right;
e. contains software viruses or any other computer codes, worms, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment and/or that attempts to access the accounts of others, or attempts to penetrate security measures of Vistaprint, its vendors or suppliers or other entities' systems ("hacking"), whether or not the intrusion results in corruption or loss of data;
f. imposes an unreasonable or disproportionately large load on Vistaprint's infrastructure or that exceeds the limits provided by the Hosting Service for which Member registered;
g. includes any unsolicited or unauthorized advertising, promotional materials, "spam," "chain letters," "pyramid schemes," "junk mail", or any other similar form of solicitation; or
h. relates to prostitution, escort services, or sex trafficking, all whether legal or not.
With respect to use of the Hosting Service and Member Sites, Member further agrees not to:
a. interfere with, disrupt or harm in any way the Hosting Service or servers or networks connected to the Hosting Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Hosting Service;
b. intentionally or unintentionally violate any applicable local, state, national or foreign laws, including, but not limited to, rules and regulations promulgated by the U.S. Securities Exchange Commission, U.S. Federal Trade Commission, U.S. Federal Communications Commission, U.S. Department of State, U.S. Department of Treasury, U.S. Department of Commerce, any rules and regulations of national or other securities exchanges, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any applicable regulations having the force of law;
c. impersonate any person or entity or falsely state or otherwise misrepresent Member’s affiliation with any person or entity; intentionally omit, delete forge or misrepresent transmission information, including any headers, return mailing, and Internet protocol addresses; or otherwise manipulate any identifiers in order to disguise the origin of any Member Content transmitted through the Hosting Service;
d. 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;
e. sell, distribute, disseminate or link to any sites for marketing, sales, or distribution of: firearms, explosives, ammunition, tobacco products and any other products or services that (i) Member cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via a Member Site could cause Vistaprint to violate any law, statute or regulation;
f. post or disclose any personal or private information or images about children or any third party without their express written consent (or a parent's express written consent in the case of a minor), or engage in any activities that would violate the personal privacy rights of others;
g. intentionally or unintentionally violate any policies, rules, procedures, regulations, or other terms or requirements of ICANN, the Registry, or the applicable TPDNV responsible for the registration of the domain name associated with the Member Site;
h. violate any third party contracts to which Member is subject as a result of its access to or use of the Hosting Service; or
i. encourage, permit or enable any of its representatives, agents, employees, affiliates, customers or any other third party to do any of the foregoing.
Vistaprint may immediately terminate Member's Hosting Service Account and access to and use of all or part of the Hosting Service in the event Vistaprint reasonably concludes that Member is or may be in breach of any of the above listed rules of member conduct.
10. DISCLAIMER OF WARRANTIES
For Member's convenience, the Hosting Service may contain products, services, content and information from third party providers (such as advertisers and affiliates) and/or links to their Websites ("Third Party Content"). Such Third Party Content is not under the control of Vistaprint and Vistaprint is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. Vistaprint is under no obligation, but does reserve the right in its sole discretion to pre-screen Third Party Content available on the Hosting Service. Vistaprint is not responsible for, disclaims all liability for and makes no representations or warranties for any Third Party Content provided by others. Vistaprint is providing such Third Party Content to Member only as a convenience, and the inclusion of such content does not imply endorsement by Vistaprint of such Third Party Content or the affiliate or advertiser. Member may be subject to additional and/or different terms, conditions, and privacy policies when using third party products, services, content, software, or sites and agrees to comply with any and all end-user obligations or terms and conditions imposed by the providers of such Third Party Content. Vistaprint reserves the right to remove any Third Party Content that does not meet Vistaprint’s standards, but Vistaprint is not responsible for any failure or delay in removing such Third Party Content.
Vistaprint is not and will not be responsible for (i) the terms and conditions of any transaction between Member and any third party, (ii) any insufficiency of, suspension of or problems with any such third party's service, background, insurance, credit or licensing, or (iii) the quality of any Third Party Content provided by any such third party or any other legal liability arising out of or related to any Third Party Content. In the event that Member has a dispute with any such third party, Member releases Vistaprint (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
11. LIMITATION OF LIABILITY
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT: (A) MEMBER'S USE OF THE HOSTING SERVICE, INCLUDING, WITHOUT LIMITATION, THE CREATION, USE AND MAINTENANCE OF THE MEMBER SITE, IS AT MEMBER'S SOLE RISK. VISTAPRINT AND ITS SUPPLIERS PROVIDE THE HOSTING SERVICE, INCLUDING WITHOUT LIMITATION ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE HOSTING SERVICE AND THE MEMBER SITES "AS IS" AND “AS AVAILABLE,” AND WITHOUT ANY WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (B) VISTAPRINT AND ITS SUPPLIERS MAKE NO WARRANTY(i) THAT THE HOSTING SERVICE OR MEMBER SITES WILL MEET MEMBER'S REQUIREMENTS, (ii) THAT THE HOSTING SERVICE OR MEMBER SITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (iii) REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, VALIDITY OR TRUTHFULNESS OF ANY INFORMATION, MATERIAL OR OTHER CONTENT OBTAINED THROUGH USE OF THE HOSTING SERVICE OR MEMBER SITES; OR (iv) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY MEMBER THROUGH THE HOSTING SERVICE WILL MEET MEMBER'S EXPECTATIONS; AND (C) ANY INFORMATION, MATERIAL OR OTHER CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE HOSTING SERVICE OR MEMBER SITES, IS DONE AT MEMBER'S OWN DISCRETION AND RISK, AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S OR THIRD PARTIES’ COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH INFORMATION, MATERIAL OR OTHER CONTENT.
12. Additional Representations and Warranties and additional Covenants
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL VISTAPRINT AND/OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, OR ANY OTHER DAMAGES OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA, OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF VISTAPRINT OR ANY OF SUCH PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING OR ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT SHALL VISTAPRINT AND/OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE IN ANY RESPECT ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE HOSTING SERVICE OR MEMBER SITES, (B) THE PROVISION OF OR FAILURE TO PROVIDE HOSTING SERVICES OR MEMBER SITES, (C) ANY MEMBER CONTENT OR OTHER INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR RELATED GRAPHICS OBTAINED OR PROVIDED THROUGH THE HOSTING SERVICE OR MEMBER SITES OR OTHERWISE ARISING OUT OF THE CREATION, USE OR MAINTENANCE OF THE HOSTING SERVICE OR MEMBER SITES, (D) STATEMENTS OR CONDUCT OF MEMBER OR ANY THIRD PARTY ON OR WITH RESPECT TO THE HOSTING SERVICE OR MEMBER SITES, OR (E) ANY DOMAIN NAME DISPUTES ARISING FROM OR RELATING TO A DOMAIN NAME SELECTED BY MEMBER FOR USE WITH THE MEMBER SITE. THE FOREGOING DISCLAIMER OF LIABILITY IS EFFECTIVE WITHOUT REGARD TO THE FORM OF ANY ACTION, INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO MEMBER. IN NO EVENT SHALL VISTAPRINT’S AGGREGATE LIABILITY TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT MEMBER ACTUALLY PAYS TO VISTAPRINT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER VISTAPRINT NOR ANY OF ITS AFFILIATES, LICENSORS, OR SUPPLIERS IS OR SHALL BE RESPONSIBLE FOR ANY MEMBER CONTENT OR OTHER MEMBER DATA RESIDING ON OR ARISING FROM THE HOSTING SERVICE, ANY MEMBER SITE, OR ANY HARDWARE OF VISTAPRINT OR ITS SUPPLIERS. IT IS MEMBER'S RESPONSIBILITY TO TAKE THE NECESSARY STEPS TO ENSURE THAT MEMBER'S PRIMARY MEANS OF BUSINESS IS MAINTAINED (IF APPLICABLE).
13. Proprietary Rights to Member Content
|Member represents, warrants, and covenants that (a) Member has the power and authority to enter into this Agreement; (b) Member is at least eighteen (18) years of age; and, (c) Member will only access and use the Hosting Service and Member Sites in accordance with this Agreement.
Member further agrees that it is and will at all times be, in full compliance with all applicable laws, regulations, rules and ordinances regarding its business, the creation, use and maintenance of the Hosting Service and Member Sites, including without limitation applicable data protection laws and export control laws, and otherwise as related to this Agreement and Member's performance hereunder.
14. Vistaprint Proprietary Rights/Software Licenses
|Vistaprint does not claim ownership of the Member Content that Member provides to Vistaprint or through the Hosting Service and/or that Member places on the Member Site, and Vistaprint acknowledges and agrees that, subject to the terms and conditions of this Agreement, Member will retain any and all applicable copyright and other intellectual property rights in any Member Content. Notwithstanding the foregoing, Member hereby grants Vistaprint a non-exclusive, worldwide, irrevocable, perpetual, unlimited, assignable, royalty-free, license to (i) copy, host, use, reproduce, modify, prepare derivative works of, improve, distribute, transmit, publish, remove, retain, add to, combine with information provided by third parties, and publicly display the Member Content (a) on and through the Hosting Service and Member Sites for the purpose of creating, operating and maintaining the Hosting Service and Member Sites and (b) in Vistaprint’s promotional and advertising materials for the limited purpose of promoting the Hosting Service, and (ii) sublicense to third parties such Member Content to the extent necessary for the creation, operation, and maintenance of, in part or in whole, the Hosting Service and Member Sites. Member also hereby grants Vistaprint the perpetual and irrevocable right to delete any or all of the Member Content from Vistaprint’s servers, the Hosting Service and the Member Site, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to Member or any other person. Member agrees that even though Member retains certain copyright or other intellectual property rights in the Member Content, Member does not own the Member Hosting Service Account used to access the Hosting Service or Member Site, nor does Member own any data stored on Vistaprint servers (including without limitation any data representing or embodying any or all of the Member Content). No compensation will be paid or due Member with respect to Vistaprint’s or its sublicensee's use of the materials as licensed in accordance with the foregoing terms. By submitting, posting, uploading, transmitting or otherwise making available any Member Content or by posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through the Hosting Service or any Member Site, Member warrants and represents that Member owns or otherwise controls the rights necessary to do so and to grant Vistaprint the license set forth above, and, pursuant to the terms set forth in Section 16, Member will defend, indemnify and hold harmless Vistaprint and the other Indemnified Parties from any third party claim related to a breach of any of the foregoing representations and warranties.
15. Vistaprint Proprietary Rights in Provided Designs, Artwork and other Content
Member hereby agrees and acknowledges that the Hosting Service and Member Sites and any software used in connection with the Hosting Service and Member Sites (the "Software") contain proprietary and confidential information of Vistaprint and/or its licensors that is protected by applicable copyright, trade secrets, trademarks, and other intellectual property and other laws. No reproduction, distribution, or transmission of the proprietary materials of the Hosting Service or the Software is permitted without the express written consent of Vistaprint. Member further agrees and acknowledges that content contained in sponsor advertisements or information presented to Member through the Hosting Service and advertisers is protected by applicable copyrights, trademarks, service marks, patents and other proprietary rights and laws. Any rights not expressly granted herein are reserved.
On the condition that Member complies with all of its obligations under this Agreement, Vistaprint grants Member a non-exclusive, revocable, non-transferable, limited license to use the Software for the purposes of utilizing the Hosting Services and operating and maintaining the Member Sites, in each case, solely to the extent provided for herein. Member may not sub-license or charge others to use or access the Software. The Software is owned by Vistaprint and/or its licensors and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification, creation of derivative works from, redistribution or retransmission of the Software is expressly prohibited, and may result in severe civil and criminal penalties. The Software, its structure, sequence and organization and source code are considered trade secrets of Vistaprint and its licensors and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. MEMBER MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER EXCEPT AS AND SOLELY TO THE EXTENT PERMITTED UNDER APPLICABLE LAW NOTWITHSTANDING THIS PROVISION.
|As part of the Hosting Service, Vistaprint may provide Member access to and use of graphics, photographs, images, document layouts, artwork, text, fonts, software tools, and similar design and graphical content (referred to herein as “Design Content”). Such Design Content may be accessed and used by Member for the sole purpose of creating, operating and maintaining Member Sites through the Hosting Service. To the extent Vistaprint provides Member access to and use of Design Content, Vistaprint grants Member a non-exclusive, revocable, non-transferable, non-assignable, limited license to copy, use, reproduce, modify, and publish the Design Content for the sole purpose of creating, operating and maintaining the Member Sites through the Hosting Service during the term of the Member's Hosting Service Account. Member acknowledges and agrees that Vistaprint or its licensors own all legal right, title and interest in and to such Design Content, including any intellectual property rights. All rights in such Design Content are reserved worldwide and Vistaprint reserves all rights not expressly granted herein, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Design Content. It is strictly prohibited for Member or any other third party to use, modify, retain, copy, distribute, transmit, publish, prepare derivative works of, or use any portion of the Design Content except as expressly allowed in this Agreement for the sole purpose of creating, operating and maintaining the Member Site through the Hosting Service during the term of the Member's Hosting Service Account. Member, and not Vistaprint, is entirely responsible for its use of Design Content on the Member Site and for its combination with any other information or Member Content. Vistaprint is providing such Design Content to Member only as a convenience, and the inclusion of such content does not imply endorsement by Vistaprint of such content. Vistaprint reserves the right to add to, delete from, modify or remove completely any part of the Design Content at any time without prior notice, but Vistaprint is not responsible for any failure or delay in doing so. Without limiting the generality of the foregoing, upon any termination of Member's Hosting Service Account and/or the Hosting Service, the foregoing license shall automatically terminate and Member must immediately cease all use of and access to the Design Content.
17. Vistaprint Proprietary Trademarks/ Notices
|Member agrees to indemnify, defend and hold Vistaprint and its suppliers, licensors, affiliates, partners, subsidiaries and employees (collectively, the "Indemnified Parties") harmless from and against any and all claims and demands, losses, liability, costs and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, “Liabilities”), incurred by an Indemnified Party arising out of or related to (i) Member's breach of this Agreement including without limitation Member’s breach of any of its representations and warranties or covenants herein; (ii) the creation, use, or maintenance of Member Sites, including, without limitation, any allegation that any Member Content or other information or content not provided by Vistaprint and contained on Member Sites (including, without limitation, any such Member Content contained in a domain name selected by Member for use with the Member Site) infringes a third person's copyright, trademark or other proprietary or intellectual property right, or misappropriates a third person's trade secrets or is unlawful, threatening, abusive, harassing, tortious, defamatory, obscene, harmful, libelous, invasive of another's privacy, hateful, or racially or ethnically objectionable; (iii) any dispute or litigation between an Indemnified Party and a third party or any other third party claim caused by, arising from or relating to Member's actions or omissions in relation to this Agreement, any Member Content, the Hosting Service or the Member Sites, including, without limitation, any domain name disputes involving the domain name selected by Member for use with the Member Site; (iv) Member's negligence or intentional misconduct; or (v) Member’s business dealings with any of its customers, including, without limitation the provision of any products or services to such customers. These obligations will survive any termination of Member's Hosting Service Account or Member's use of the Hosting Service and Member Sites. To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of Vistaprint and/or its suppliers, licensors, affiliates, partners, subsidiaries and employees.
18. Modification/Availability of the Hosting Service
Vistaprint, Vistaprint.com, the Vistaprint logo, Vistaprint Site Builder and other Vistaprint owned or licensed logos and product and service names used in connection with the Hosting Service and Member Sites, are trademarks of Vistaprint or its licensors (the “Hosting Service Marks"). Member agrees not to display or use the Hosting Service Marks in any manner whatsoever without Vistaprint’s prior written consent. From time to time Vistaprint may in it sole discretion offer a limited license to Member to display Vistaprint award logos or other symbols of merit on Member Sites after Vistaprint in its sole discretion confers such distinctions to applicable Members. However, Vistaprint reserves the right to withdraw such logos or symbols and delete them in its sole discretion for any reason.
19. Termination/Cancellation of Member's Hosting Service Account
Vistaprint reserves the right, in its sole discretion, at any time and from time to time, to modify, replace, remove, suspend or discontinue the Hosting Service, temporarily or permanently, (or any part or feature thereof), including the imposition of limits on certain features and services or restriction of access to parts or all of the Hosting Service, with or without notice. Vistaprint also reserves the right, in its sole discretion, at any time, to cancel, suspend, disable or refuse access to the Hosting Service, Member Sites or Member Content of any Member or any third party, with or without prior notice. In addition, Member understands and acknowledges that features and components of the Hosting Service and Member Sites may be suspended, limited, and/or terminated due to actions taken by third party suppliers, licensors, and regulators, such as TPDNVs. Member agrees that Vistaprint shall not be liable to Member or to any third party for any modification, suspension or discontinuance of the Hosting Service, or for any cancellation, suspension, disabling or refusal of access to the Hosting Service, Member Sites or Member Content of any Member or any third party. If Member does not agree to any such modifications, Member's sole and exclusive remedy is to cancel Member's Hosting Service Account. While Vistaprint endeavors to ensure that the Hosting Service is available at all times, Vistaprint shall not be liable if for any reason, the Hosting Service is unavailable at any time or for any period. Member acknowledges and agrees that if Vistaprint disables Member’s access to the Hosting Service, Member will not be able to access Member's Hosting Account details, Member Data, or Member Content.
20. Export Controls
Either Member or Vistaprint may terminate or cancel Member's Hosting Account and/or Member's use of and access to all or part of the Hosting Service and Member Sites at any time, as follows:
a. Termination by Member.
Member may cancel Member's Hosting Service Account or any part of the Hosting Service at any time. To cancel, Member must call 1-866-811-1674 from the U.S. or Canada. Member will receive a cancellation confirmation via email after Vistaprint processes Member's cancellation request. Upon confirmation of such cancellation, Member will forfeit all credits, pre-paid fees, and any other amounts accruing to Member, if any, and Vistaprint shall not be required to refund, redeem, or pay any such or other amounts to Member. Vistaprint also reserves the right to collect fees incurred before Member cancels Member's Hosting Service Account in addition to any applicable cancellation fee(s).
Member must provide Vistaprint with the following information in order for Vistaprint to process the cancellation:
- The exact name of the Hosting Service that Member would like to cancel;
- Member's email address;
- Member's billing information, including the credit card number that the member used when purchasing the Hosting Service; and
- Member's reason for canceling the Hosting Service.
b. Termination by Vistaprint.
Vistaprint, in its sole discretion, may terminate Member’s Hosting Service Account and Member's use of and access to the Hosting Service and Member Sites, including without limitation any related domain names, at any time and for any reason, including, without limitation, (i) if Member breaches this Agreement, including, without limitation, due to (X) failure of Member to make any required payments to Vistaprint when due, or (Y) failure of Member to comply with the member conduct rules set forth in this Agreement, including without limitation Sections 8 and 12 above; (ii) if Vistaprint is unable to verify or authenticate any information that Member provides to Vistaprint; (iii) Vistaprint concludes in its sole discretion that Member’s use of or access to the Hosting Service or Member Sites may result in liability to Vistaprint or its suppliers or licensors, or (iv) upon the bankruptcy or insolvency of Member. If Vistaprint terminates Member's Account pursuant to (i), (ii), (iii) or (iv) above, Member will forfeit all credits, pre-paid fees, and any other amounts accruing to Member, if any, and Vistaprint shall not be required to refund, redeem, or pay any such or other amounts to Member.
c. Effect of Termination.
Upon cancellation or other termination of Member's Hosting Account for any reason, Vistaprint shall (a) collect all fees, commitments and obligations incurred or accrued by Member; (b) delete any Member Content, Member Data, listings, messages or other information in connection with Member's Hosting Account and Member's use of or access to the Hosting Service and Member Site; and (c) prohibit Member's access to and use of Member's Hosting Service Account, the Hosting Service and the Member Sites, including without limitation by deactivating Member's password. In no event shall Vistaprint be required to return any Member Content to Member upon any such termination. Vistaprint is not responsible for any damages to or losses incurred by Member or any third party in the event Member chooses to cancel the Member Account and Vistaprint takes any of the above actions.
Member understands and agrees that Member's cancellation of Member's Hosting Service Account is Member's sole right and remedy with respect to any dispute with Vistaprint. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this Agreement or Vistaprint's enforcement or application of any such term; (2) any policy or practice of Vistaprint or Vistaprint's enforcement or application of these policies; (3) any content available through the Hosting Service or any change in content provided through the Hosting Service; (4) Member's ability to access or use the Hosting Service or Member Sites; or (5) the amount or type of fees, surcharges, applicable taxes, billing methods or change to the fees, applicable taxes, surcharges or billing methods, if any.
21. Data Privacy and Security
Customer, not Vistaprint, will be responsible for complying with all applicable United States laws, rules and regulations relating to export compliance. Without limiting the generality of the foregoing, Member shall ensure that all Member Content, Member Data and End-User Data is not subject to U.S. export controls, or, to the extent any such content or data is subject to export controls, Member will so notify Vistaprint immediately and Member will implement all necessary security and access measures required to comply with all applicable U.S. laws, rules and regulations. Member further represents and warrants that it is not itself subject to export restrictions imposed by any such laws, rules and regulations.
Vistaprint utilizes reasonable physical, electronic and procedural safeguards to help Vistaprint protect against the loss, misuse, disclosure and alteration of any Member Data that Vistaprint receives from Member and any personal data Vistaprint receives from Member about Member’s end users or customers (“End-User Data”). With respect to certain services provided pursuant to this Agreement as part of the Hosting Service, Vistaprint may act as Member’s data processor with respect to such End-User Data, in which case Vistaprint processes such End-User Data only in accordance with Member’s instructions. Member is responsible for complying with all consumer protection and data privacy laws with respect to such End-User Data, and will indemnify, defend, and hold harmless Vistaprint and each other Indemnified Party from and against any and all Liabilities incurred by an Indemnified Party arising out of or related to Member’s failure to so comply.
Statements, notices and other communications to Member may be made by mail, email, postings within the Hosting Service or Vistaprint's website, or other reasonable means. Member shall be solely responsible for updating the account's registered email and postal address. Vistaprint shall not be responsible for any undelivered notices caused by Member's failure to update the account information. Without limiting the generality of the foregoing, Vistaprint may provide notices of changes to this Agreement and the Hosting Service by displaying notices or links to notices generally on the Vistaprint website. Member should refer to Vistaprint's website for information on how to contact and/or provide notice to Vistaprint.
24. Information for California Residents
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Vistaprint’s failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Member shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without prior written approval of Vistaprint, and any such attempted assignment shall be void. Vistaprint shall have the right to freely assign all or part of this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent of or notice to Member. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and permitted assigns. This Agreement sets forth the entire understanding and agreement between Vistaprint and Member with respect to the subject matter hereof. The section and subsection titles in the Agreement are for convenience only and have no legal or contractual effect. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures.
25. Independent Review
Under California Civil Code Section 1789.3, California Members are entitled to the following specific consumer rights information:
a. Pricing Information - Current rates for using the Hosting Service may be obtained by going to Member's "My Services" page on the Vistaprint website. Vistaprint reserves the right to change any fees, surcharges, and/or monthly Member fees or to institute new fees at any time.
b. Complaints - The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
26. Internet Domain Names
MEMBER ACKNOWLEDGES THAT MEMBER HAS READ THIS AGREEMENT AND ALL RELATED POLICIES REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT MEMBER AGREES TO ALL ITS TERMS AND CONDITIONS. MEMBER HAS INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
a. Vistaprint owns the primary domain names listed on Schedule 1 attached hereto, as such Schedule may be updated by Vistaprint from time to time in its sole discretion (the “Primary Domains”). Customer does not have any ownership interest or rights of any kind to any of the Primary Domains. If Customer subscribes for the Starter Hosting Service, Vistaprint will register, through one or more third party vendors, subdomain name(s) under the applicable Primary Domain for use with the Member Site----e.g., “[Name of Member Business].vpweb.com” (collectively, “Standard Subdomains”). Vistaprint will own and control all Standard Subdomains. Customer will not have any ownership interest in any Standard Subdomain, but will have a limited, revocable, nonexclusive, non-transferable, non-assignable license to use such Standard Subdomain solely during the term of Member's Hosting Service Account in connection with the operation of its Member Sites through the Hosting Service.
b. Member may request Vistaprint to acquire, if available, customized top-level domain name(s) for use in connection with the Member Sites as part of an upgraded Hosting Service (collectively, the “Member Domain Name”). Subject to clause (c) of this Section 26, Vistaprint will use its reasonable commercial efforts to register the Member Domain Name if available, and, if successful in registering the Member Domain Name, will serve as registrant with respect to such Member Domain Name and will own and control the Member Domain Name (“Registrant”). Customer will not have any ownership interest in any such Member Domain Name, but will have a limited, revocable, nonexclusive, non-transferable, non-assignable, license to use such Member Domain Name solely during the term of the Member's Hosting Service Account in connection with the operation of its Member Sites through the Hosting Service. Without limiting the generality of the foregoing, upon any termination of Member’s Website Account, Member will have no further access to or use of the Member Domain Name.
By requesting that Vistaprint register a Member Domain Name for the Member Site through the Hosting Service, Member hereby represents and warrants to Vistaprint that (a) all information Member provides to Vistaprint for purposes of registering the Member Domain Name and serving as Registrant therefor is complete and accurate; (b) the registration of the Member Domain Name will not infringe upon or otherwise violate the rights of any third party; (c) Member is not seeking to have the Member Domain Name registered for an unlawful purpose; and (d) Member will not knowingly use the Member Domain Name in violation of any applicable laws or regulations. It is Member’s sole responsibility to determine whether the Member Domain Name registration infringes or violates someone else's rights.
Vistaprint may in its sole discretion use one or more TPDNVs who are ICANN accredited registrars, to provide domain name registration services in connection with the Member Domain Names. In cases where Vistaprint serves as the Registrant for the Member Domain Name, Vistaprint will have entered into the TPDNV’s terms of service with respect to such registration, which the TPDNVs may modify from time to time under certain circumstances (the “TPDNV Registration Agreement”). A copy of the current form of TPDNV Registration Agreement for the Hosting Service is attached hereto as Annex A and incorporated by reference herein. Member agrees and understands that Member is required to comply with all of the obligations imposed upon Vistaprint as a party to the TPDNV Registration Agreement with respect to the creation, operation, and maintenance of the Hosting Service and Member Site to the same extent as if Member were directly a party thereto, and the TPDNVs, ICANN and the Registry may have certain rights under the TPDNV Registration Agreement and related policies, rules and regulations that can be enforced against or in relation to Member. Member will remain liable to Vistaprint, the TPDNV, ICANN and the Registry to the extent of any violation of any of the terms and conditions of the TPDNV Registration Agreement or any related policies, rules, procedures, and regulations to the extent caused by or resulting from the actions or omissions of Member or any of its affiliates, agents, employees, representatives, or customers. Accordingly, without limiting any other remedies available to Vistaprint under this Agreement or at law or in equity, Member agrees to indemnify, defend and hold the Indemnified Parties harmless from and against any and all Liabilities incurred by them arising out of or related to any such actions or omissions.
c. Under certain circumstances, Vistaprint may in its sole discretion elect to offer to certain Members the opportunity to own and control their Member Domain Names and to serve as Registrant in connection with such Member Domain Names. In all such cases, Member must enter into the TPDNV’s then current TPDNV Registration Agreement directly with the TPDNV prior to such registration. Without limiting the generality of the foregoing or any of the terms and conditions set forth in the TPDNV Registration Agreement, as set forth in the TPDNV Registration Agreement, in such cases Member must also agree to the terms and conditions of the ICANN Uniform Domain Name Dispute Resolution Policy as then in effect, a copy of the current version of which is attached hereto as Annex B and incorporated by reference herein, which may be modified by ICANN at any time in its sole discretion. Member understands that Member is creating a separate contractual relationship between Member and each of the TPDNV and ICANN with respect to the Member Domain Name by agreeing to the TPDNV Registration Agreement and ICANN Uniform Domain Name Dispute Resolution Policy, as applicable, and that Member, and not Vistaprint, is responsible for all liability and obligations in connection with those contracts. If, after registering one or more Member Domain Names as Registrant, Member chooses to delete a previously registered Member Domain Name and subsequently register one or more additional different Member Domain Names, Member will be charged the resulting domain name registration fees.
In cases where Member serves as Registrant of the Member Domain Names, Member will be listed as the Registrant and administrative contact in connection with Member's Member Domain Name; however, Vistaprint may in its sole discretion temporarily list itself as the Registrant and administrative contact in the event that it changes to a different TPDNV until the TPDNV change is completed. In such cases, Member hereby authorizes Vistaprint to list itself as the billing contact, technical contact and name servers in connection with Member's Member Domain Name and to take any actions Vistaprint deems appropriate in those capacities. However, upon termination of the Member's Hosting Service Account, Vistaprint will immediately cease acting in those capacities. After such time, Vistaprint will not be responsible to forward any notices, emails or other correspondence to Member or to take any other actions in connection with Member's Member Domain Name. Additionally, in the event that Member’s Hosting Service Account is suspended or terminated by Vistaprint for lack of payment or any other reason or is cancelled by Member, Vistaprint shall not renew any domain names that may become due for renewal during the suspension of the account or following termination. Member will be solely responsible for all ongoing fees, as well as removing Vistaprint as the billing, technical contact and name servers in connection with such Registrant-owned Member Domain Names.
d. Without limiting any other remedies available to Vistaprint under this Agreement or at law or in equity, Vistaprint, in its sole discretion, reserves the right at any time to deny, cancel, suspend, transfer or modify any domain name registration (i) to correct a mistake, (ii) if Vistaprint is notified or discovers that a complaint has been filed with a judicial or administrative body or other third party, including without limitation ICANN, the Registry or the TPDNV, challenging the registration, reservation or use of Member’s domain name, (iii) to protect the integrity and stability of Vistaprint, (iv) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or dispute resolution process, (v) to avoid any liability, civil or criminal, or (vi) if the TPDNV, ICANN or the Registry denies, cancels, suspends or transfers the domain name in accordance with such entities’ agreements or policies then in effect. Member agrees and understands that Vistaprint shall have no liability to Member or any other person or entity for any damages, costs, expenses or other losses that may arise from any refusal to register, cancellation, suspension, transfer or modification of Member’s domain name registration in accordance with the foregoing sentence or otherwise.
e. Member agrees and acknowledges that Vistaprint will make domain name registration information Member provides available to ICANN, to TPDNVs’, to the Registry administrators, law enforcement agencies and to other third parties as necessary to fulfill its obligations under this Agreement and comply with applicable laws, rules, regulations and policies of such third parties. Member further agrees and acknowledges that Vistaprint may make publicly available, or directly available to third party vendors, some or all, of the domain name registration information Member provides, for purposes of inspection (such as through a Whois service) or other purposes as required or permitted by ICANN and applicable laws. Member hereby consents to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by Member in connection with the registration of a domain name (including any updates to such information), whether during or after the term of the registration of the domain name. Member hereby irrevocably waives any and all claims and causes of action Member may have arising from such disclosure or use of Member’s domain name registration information by Vistaprint or any third party.
To the extent Vistaprint in its sole discretion makes available to Members through the Hosting Service email services provided by one or more independent Third Party Email Services Vendor (each, a "TPESV"), Vistaprint will not be responsible for the actions or inaction of the then current TPESV or the unavailability or malfunction of its network or services. Vistaprint may change a TPESV, if any, at any time and from time to time in its sole discretion. Vistaprint is not a party to, and shall not be involved in or responsible for, any transactions, agreements, and/or disputes between Member and the TPESV ("TPESV Dispute"). In the event of a TPESV Dispute, Member hereby releases Vistaprint (and its officers, directors, agents, affiliates, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. By using email services, if any, Member further agrees to the terms and conditions contained in Vistaprint’s then current Email Services Policy, a copy of which will be attached to this Agreement and incorporated by reference herein.
Annex A: TPDNV Registration Agreement
Annex B: ICANN Uniform Domain Name Dispute Resolution Policy