Last Revised: April 7, 2017
PLEASE READ THIS UNIVERSAL TERMS
OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION
REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
1. OVERVIEW
This Universal Terms of Service
Agreement (this “Agreement”) is entered into by and between Esurf.com, LLC, a
Delaware limited liability company ("Esurf") and you, and is made
effective as of the date of your use of this website ("Site") or
the date of electronic acceptance. This Agreement sets forth the
general terms and conditions of your use of the Site and the
products and services purchased or accessed through this Site
(individually and collectively, the “Services”), and is in addition to (not
in lieu of) any specific terms and conditions that apply to the particular
Services.
Whether you are simply browsing or
using this Site or purchase Services, your use of this Site and your
electronic acceptance of this Agreement signifies that you have read,
understand, acknowledge and agree to be bound by this Agreement, along with
the following policies and the applicable product agreements, which are
incorporated herein by reference:
Agreements
Auctions Membership Agreement
|
CashParking® Service Agreement
|
Change of Registrant Agreement
|
Direct Affiliate Program
Agreement
|
Domain Buy Service Agreement
|
Domain Name Appraisal Agreement
|
Domain Name Proxy Agreement
|
Domain Name Registration
Agreement
|
Domain Name Transfer Agreement
|
Hosting Agreement
|
Marketing Applications
Agreement
|
Online Bookkeeping Service
Agreement
|
Email Marketing Service
Agreement
|
Pro Service Agreement
|
Online Store/Quick Shopping
Cart
|
Reseller Agreement
|
Professional Web Services
Agreement
|
Website Builder Service
Agreement
|
Email Archiving Agreement
|
Workspace Service Agreement
|
Get Found Service Agreement
|
Microsoft Office Terms of Use
|
Email Encryption Service
Agreement
|
GoCentral Service Agreement
|
SmartLine Agreement
|
|
|
Policies
Privacy Policy
|
Subpoena Policy Attorney Tips
|
Dispute on Transfer Away Form
|
Uniform Domain Name Dispute
Resolution Policy
|
ICANN Registrant Rights and
Responsibilites
|
ICANN Registrar Transfer Dispute Resolution Policy
|
Trademark Copyright
Infringement
|
Brand Guidelines and
Permissions
|
Patent Notice
|
Refund Policy
|
|
|
The terms “we”, “us” or “our”
shall refer to Esurf. The terms “you”, “your”, “User” or “customer”
shall refer to any individual or entity who accepts this Agreement, has
access to your account or uses the Services. Nothing in this Agreement
shall be deemed to confer any third-party rights or benefits.
Esurf may, in its sole and
absolute discretion, change or modify this Agreement, and any policies or
agreements which are incorporated herein, at any time, and such changes or
modifications shall be effective immediately upon posting to this Site.
Your use of this Site or the Services after such changes or modifications
have been made shall constitute your acceptance of this Agreement as last
revised. If you do not agree to be bound by this Agreement as last
revised, do not use (or continue to use) this Site or the Services. In
addition, Esurf may occasionally notify you of changes or modifications to
this Agreement by email. It is therefore very important that you keep
your shopper account (“Account”) information current. Esurf assumes no
liability or responsibility for your failure to receive an email notification
if such failure results from an inaccurate email address.
2. ELIGIBILITY; AUTHORITY
This Site and the Services are
available only to Users who can form legally binding contracts under
applicable law. By using this Site or the Services, you represent and
warrant that you are (i) at least eighteen (18) years of age, (ii)
otherwise recognized as being able to form legally binding contracts under
applicable law, or (iii) are not a person barred from purchasing or receiving
the Services found under the laws of the United States or other applicable
jurisdiction.
If you are entering into this
Agreement on behalf of a corporate entity, you represent and warrant that you
have the legal authority to bind such corporate entity to the terms and
conditions contained in this Agreement, in which case the terms
"you", "your", "User" or "customer"
shall refer to such corporate entity. If, after your electronic
acceptance of this Agreement, Esurf finds that you do not have the legal
authority to bind such corporate entity, you will be personally responsible
for the obligations contained in this Agreement, including, but not limited
to, the payment obligations. Esurf shall not be liable for any loss or damage
resulting from Esurf’s reliance on any instruction, notice, document or
communication reasonably believed by Esurf to be genuine and originating from
an authorized representative of your corporate entity. If there is reasonable
doubt about the authenticity of any such instruction, notice, document or
communication, Esurf reserves the right (but undertakes no duty) to require
additional authentication from you. You further agree to be bound by the
terms of this Agreement for transactions entered into by you, anyone acting
as your agent and anyone who uses your account or the Services, whether or
not authorized by you.
3. ACCOUNTS; TRANSFER OF DATA
ABROAD
Accounts. In order to access some of
the features of this Site or use some of the Services, you will have to
create an Account. You represent and warrant to Esurf that all information
you submit when you create your Account is accurate, current and complete, and
that you will keep your Account information accurate, current and
complete. If Esurf has reason to believe that your Account information
is untrue, inaccurate, out-of-date or incomplete, Esurf reserves the right,
in its sole and absolute discretion, to suspend or terminate your
Account. You are solely responsible for the activity that occurs on
your Account, whether authorized by you or not, and you must keep your
Account information secure, including without limitation your customer
number/login, password, Payment Method(s) (as defined below), and shopper
PIN. For security purposes, Esurf recommends that you change your
password and shopper PIN at least once every six (6) months for each Account
. You must notify Esurf immediately of any breach of security or
unauthorized use of your Account. Esurf will not be liable for any loss you
incur due to any unauthorized use of your Account. You, however, may be
liable for any loss Esurf or others incur caused by your Account, whether
caused by you, or by an authorized person, or by an unauthorized person.
Transfer of Data Abroad. If you are visiting this
Site from a country other than the country in which our servers are located,
your communications with us may result in the transfer of information
(including your Account information) across international boundaries.
By visiting this Site and communicating electronically with us, you
consent to such transfers.
4. AVAILABILITY OF
WEBSITE/SERVICES
Subject to the terms and
conditions of this Agreement and our other policies and procedures, we shall
use commercially reasonable efforts to attempt to provide this Site and the
Serviceson a twenty-four (24) hours a day, seven (7) days a week basis. You
acknowledge and agree that from time to time this Site may be inaccessible or
inoperable for any reason including, but not limited to, equipment
malfunctions; periodic maintenance, repairs or replacements that we undertake
from time to time; or causes beyond our reasonable control or that are not
reasonably foreseeable including, but not limited to, interruption or failure
of telecommunication or digital transmission links, hostile network attacks,
network congestion or other failures. You acknowledge and agree that we have
no control over the availability of this Site or the Service on a continuous
or uninterrupted basis, and that we assume no liability to you or any other
party with regard thereto.
From time to time, Esurf may offer
new Services (limited preview services or new features to existing Services)
in a pre-release version. New Services, new features to existing Services or
limited preview services shall be known, individually and collectively, as
“Beta Services”. If you elect to use any Beta Services, then your use of the
Beta Services is subject to the following terms and conditions: (i) You
acknowledge and agree that the Beta Services are pre-release versions and may
not work properly; (ii) You acknowledge and agree that your use of the Beta
Services may expose you to unusual risks of operational failures; (iii) The
Beta Services are provided as-is, so we do not recommend using them in
production or mission critical environments; (iv) Esurf reserves the right to
modify, change, or discontinue any aspect of the Beta Services at any time;
(v) Commercially released versions of the Beta Services may change
substantially, and programs that use or run with the Beta Services may not
work with the commercially released versions or subsequent releases; (vi) Esurf
may limit availability of customer service support time dedicated to support
of the Beta Services; (vii) You acknowledge and agree to provide prompt
feedback regarding your experience with the Beta Services in a form
reasonably requested by us, including information necessary to enable us to duplicate
errors or problems you experience. You acknowledge and agree that we may use
your feedback for any purpose, including product development purposes. At our
request you will provide us with comments that we may use publicly for press
materials and marketing collateral. Any intellectual property inherent in
your feedback or arising from your use of the Beta Services shall be owned
exclusively by Esurf; (viii) You acknowledge and agree that all information
regarding your use of the Beta Services, including your experience with and
opinions regarding the Beta Services, is confidential, and may not be
disclosed to a third party or used for any purpose other than providing
feedback to Esurf; (ix) The Beta Services are provided “as is”, “as
available”, and “with all faults”. To the fullest extent
permitted by law, Esurf disclaims any and all warranties, statutory, express
or implied, with respect to the Beta Services including, but not limited to,
any implied warranties of title, merchantability, fitness for a particular
purpose and non-infringement.
In addition to our many free
services, as described here, Esurf offers
paid support services :
- GetStarted - Hosting: up to 30 minutes with a
support representative to assist with setting up your
hosting account following the getting started guide. This service
is available for cPanel, Plesk, and Managed WordPress.
- Website Migration: Esurf will assist
customer with moving customer’s website from another host to Esurf,
includes shared, VPS, dedicated. Please allow up to 24-hours to
complete. Website migrations are subject to the Website Transfer Service
Agreement which is hereby incorporated by
reference.
- VPS Services:
described here.
You acknowledge and agree that you
have the necessary rights and permissions to share all information necessary
to provide the Services with Esurf. You acknowledge and agree that the
Services may be provided by independent contractors or third party service
providers.
All paid services are
non-refundable.
5. GENERAL RULES OF CONDUCT
You acknowledge and agree that:
- Your use of this Site and the
Services , including any content you submit, will comply with this
Agreement and all applicable local, state, national and international
laws, rules and regulations.
- You will not collect or
harvest (or permit anyone else to collect or harvest) any User Content
(as defined below) or any non-public or personally identifiable
information about another User or any other person or entity without
their express prior written consent.
- You will not use this Site or
the Services in a manner (as determined by Esurf in its sole and
absolute discretion) that:
- Is illegal, or promotes or
encourages illegal activity;
- Promotes, encourages or
engages in child pornography or the exploitation of children;
- Promotes, encourages or
engages in terrorism, violence against people, animals, or property;
- Promotes, encourages or
engages in any spam or other unsolicited bulk email, or computer or
network hacking or cracking;
- Violates the Ryan Haight
Online Pharmacy Consumer Protection Act of 2008 or similar legislation,
or promotes, encourages or engages in the sale or distribution of
prescription medication without a valid prescription;
- Infringes on the
intellectual property rights of another User or any other person or
entity;
- Violates the privacy or
publicity rights of another User or any other person or entity, or
breaches any duty of confidentiality that you owe to another User or
any other person or entity;
- Interferes with the
operation of this Site or the Services found at this Site;
- Contains or installs any
viruses, worms, bugs, Trojan horses or other code, files or programs
designed to, or capable of, disrupting, damaging or limiting the
functionality of any software or hardware; or
- Contains false or deceptive
language, or unsubstantiated or comparative claims, regarding Esurf or Esurf’s
Services.
- You will not copy or
distribute in any medium any part of this Site or the Services , except
where expressly authorized by Esurf.
- You will not modify or alter
any part of this Site or the Services found at this Site or any of its
related technologies.
- You will not access Esurf
Content (as defined below) or User Content through any technology or
means other than through this Site itself, or as Esurf may designate.
- You agree to back-up all of
your User Content so that you can access and use it when needed. Esurf
does not warrant that it backs-up any Account or User Content, and you
agree to accept as a risk the loss of any and all of your User Content.
- You will not re-sell or
provide the Services for a commercial purpose, including any of Esurf’s
related technologies, without Esurf's express prior written
consent.
- You agree to provide government-issued photo
identification and/or government-issued business identification as
required for verification of identity when requested.
- You are aware that Esurf may from time-to-time
call you about your account, and that, for the purposes of any and all
such call(s), you do not have any reasonable expectation of privacy
during those calls; indeed you hereby consent to allow Esurf, in its
sole discretion, to record the entirety of such calls regardless of
whether Esurf asks you on any particular call for consent to record such
call. You further acknowledge and agree that, to the extent
permitted by applicable law, any such recording(s) may be submitted as
evidence in any legal proceeding in which Esurf is a party. Further,
by providing your telephone or mobile number, you consent to receive
marketing telephone calls from or on behalf of Esurf that may be
initiated by an automatic telephone dialing system and/or use an
artificial or prerecorded voice. You understand that providing consent
is not a condition of purchasing any good or service from Esurf.
Similarly, by providing your mobile number, you consent to receive
marketing text messages from or on behalf of Esurf that may be sent by
an automatic telephone dialing system. You understand that providing
consent is not a condition of purchasing any good or service from Esurf.
Message and data rates may apply.
Esurf reserves the right to
modify, change, or discontinue any aspect of this Site or the Services,
including without limitation prices and fees for the same, at any time.
6. YOUR USE OF ESURF CONTENT AND USER CONTENT
In addition to the general rules
above, the provisions in this Section apply specifically to your use of Esurf
Content and User Content posted to Esurf’s corporate websites (i.e., those
sites which Esurf directly controls or maintains). The applicable provisions
are not intended to and do not have the effect of transferring any ownership
or licensed rights (including intellectual property rights) you may have in
content posted to your hosted websites.
Esurf Content. Except for User Content, the
content on this Site and the Services , including without limitation the
text, software, scripts, source code, API, graphics, photos, sounds, music,
videos and interactive features and the trademarks, service marks and logos
contained therein (“Esurf Content”), are owned by or licensed to Esurf in
perpetuity, and are subject to copyright, trademark, and/or patent protection
in the United States and foreign countries, and other intellectual property
rights under United States and foreign laws. Esurf Content is provided to you
“as is”, “as available” and “with all faults” for your information and
personal, non-commercial use only and may not be downloaded, copied,
reproduced, distributed, transmitted, broadcast, displayed, sold, licensed,
or otherwise exploited for any purposes whatsoever without the express prior
written consent of Esurf. No right or license under any copyright, trademark,
patent, or other proprietary right or license is granted by this Agreement. Esurf
reserves all rights not expressly granted in and to the Esurf Content, this
Site and the Services, and this Agreement do not transfer ownership of any of
these rights.
User Content. Some of the features of this
Site or the Services may allow Users to view, post, publish, share, store, or
manage (a) ideas, opinions, recommendations, or advice (“User Submissions”),
or (b) literary, artistic, musical, or other content, including but not
limited to photos and videos (together with User Submissions, “User
Content”). User Submissions include, but are not limited to, forum
posts, content submitted in connection with a contest, product reviews or
recommendations, or photos to be incorporated into a social media event or
activity. User Content includes all content submitted through your Account.
By posting or publishing User Content to this Site or to the Services, you
represent and warrant to Esurf that (i) you have all necessary rights to
distribute User Content via this Site or via the Services, either because you
are the author of the User Content and have the right to distribute the same,
or because you have the appropriate distribution rights, licenses, consents,
and/or permissions to use, in writing, from the copyright or other owner of
the User Content, and (ii) the User Content does not violate the rights of
any third party.
Security. You agree not to circumvent,
disable or otherwise interfere with the security-related features of this
Site or the Services found at this Site (including without limitation those
features that prevent or restrict use or copying of any Esurf Content or User
Content) or enforce limitations on the use of this Site or the Services found
at this Site, the Esurf Content or the User Content therein.
7. ESURF'S USE OF USER CONTENT
The provisions in this Section apply
specifically to Esurf’s use of User Content posted to Esurf’s corporate
websites (i.e., those sites which Esurf directly controls or
maintains). The applicable provisions are not intended to and do
not have the effect of transferring any ownership or licensed rights
(including intellectual property rights) you may have in content posted to
your hosted websites.
Generally. You shall be solely
responsible for any and all of your User Content or User Content that is
submitted through your Account, and the consequences of, and requirements
for, distributing it.
With Respect to User Submissions. You acknowledge and agree
that:
- Your User Submissions are
entirely voluntary.
- Your User Submissions do not
establish a confidential relationship or obligate Esurf to treat your
User Submissions as confidential or secret.
- Esurf has no obligation,
either express or implied, to develop or use your User Submissions, and
no compensation is due to you or to anyone else for any intentional or
unintentional use of your User Submissions.
- Esurf may be working on the
same or similar content, it may already know of such content from other
sources, it may simply wish to develop this (or similar) content on its
own, or it may have taken / will take some other action.
Esurf shall own exclusive rights
(including all intellectual property and other proprietary rights) to any
User Submissions posted to this Site, and shall be entitled to the
unrestricted use and dissemination of any User Submissions posted to this Site
for any purpose, commercial or otherwise, without acknowledgment or
compensation to you or to anyone else.
With Respect to User Content
(Other Than User Submissions).
If you have a website or other
content hosted by Esurf, you shall retain all of your ownership or licensed
rights in User Content.
By posting or publishing User
Content to this Site or through the Services, you authorize Esurf to use the
intellectual property and other proprietary rights in and to your User
Content to enable inclusion and use of the User Content in the manner
contemplated by this Site and this Agreement. You hereby grant Esurf a
worldwide, non-exclusive, royalty-free, sublicensable (through multiple
tiers), and transferable license to use, reproduce, distribute, prepare
derivative works of, combine with other works, display, and perform your User
Content in connection with this Site, the Services and Esurf’s (and Esurf’s
affiliates’) business(es), including without limitation for promoting and
redistributing all or part of this Site in any media formats and through any
media channels without restrictions of any kind and without payment or other
consideration of any kind, or permission or notification, to you or any third
party. You also hereby grant each User of this Site a non-exclusive license
to access your User Content (with the exception of User Content that you
designate “private” or “password protected”) through this Site, and to use,
reproduce, distribute, prepare derivative works of, combine with other works,
display, and perform your User Content as permitted through the functionality
of this Site and under this Agreement. The above licenses granted by you in
your User Content terminate within a commercially reasonable time after you
remove or delete your User Content from this Site. You understand and agree,
however, that Esurf may retain (but not distribute, display, or perform)
server copies of your User Content that have been removed or deleted. The
above licenses granted by you in your User Content are perpetual and
irrevocable. Notwithstanding anything to the contrary contained herein,
Esurf shall not use any User Content that has been designated “private” or
“password protected” by you for the purpose of promoting this Site or Esurf’s
(or Esurf’s affiliates’) business(es).
8. PRODUCT CREDITS
In the event you are provided with
a product credit (“Credit”), whether for redemption of the purchase of a
specific product or for free with the purchase of another product
(“Purchased Product”), you acknowledge and agree that such Credit is only
valid for one (1) year and is only available with a valid purchase and may be
terminated in the event the product purchased is deleted, cancelled,
transferred or not renewed.The Credit will expire one (1) year from date of
purchase of the Purchased Product if the Credit has not been redeemed.
In the event that the Credit is redeemed, after the initial subscription
period, the product will automatically renew at the then-current renewal
price until cancelled. If you wish to cancel the automatic renewal of the
product, you may do so by visiting your Account or by contacting customer
service. In the event your Purchased Product includes a free
domain name, if you cancel the Purchased Product, the list price for the
domain name will be deducted from the refund amount. The list price is
the price of the domain name listed on Esurf’s website and is not subject to
any promotion, discount, or other reduction in price. For Credits issues for
free with another Purchased Product, you acknowledge and agree that we may
swap your Credit for a similar product, in our sole discretion.
9. MONITORING OF CONTENT; ACCOUNT
TERMINATION POLICY
Esurf generally does not
pre-screen User Content (whether posted to a website hosted by Esurf or
posted to this Site). However, Esurf reserves the right (but undertakes
no duty) to do so and decide whether any item of User Content is appropriate
and/or complies with this Agreement. Esurf may remove any item of User
Content (whether posted to a website hosted by Esurf or posted to this Site)
and/or terminate a User’s access to this Site or the Services found at this
Site for posting or publishing any material in violation of this Agreement,
or for otherwise violating this Agreement (as determined by Esurf in its sole
and absolute discretion), at any time and without prior notice. Esurf may
also terminate a User’s access to this Site or the Services found at this
Site if Esurf has reason to believe the User is a repeat offender. If Esurf
terminates your access to this Site or the Services found at this Site, Esurf
may, in its sole and absolute discretion, remove and destroy any data and
files stored by you on its servers.
10. ADDITIONAL RESERVATION OF
RIGHTS
Esurf expressly reserves the right
to deny, cancel, terminate, suspend, lock, or modify access to (or control
of) any Account or Services (including the right to cancel or transfer any
domain name registration) for any reason (as determined by Esurf in its sole
and absolute discretion), including but not limited to the following: (i) to
correct mistakes made by Esurf in offering or delivering any Services
(including any domain name registration), (ii) to protect the integrity and
stability of, and correct mistakes made by, any domain name registry, (iii)
to assist with our fraud and abuse detection and prevention efforts, (iv) to
comply with court orders against you and/or your domain name or website and
applicable local, state, national and international laws, rules and regulations,
(v) to comply with requests of law enforcement, including subpoena requests,
(vi) to comply with any dispute resolution process, (vii) to defend any legal
action or threatened legal action without consideration for whether such
legal action or threatened legal action is eventually determined to be with
or without merit, or (viii) to avoid any civil or criminal liability on the
part of Esurf, its officers, directors, employees and agents, as well as Esurf’s
affiliates, including, but not limited to, instances where you have sued or
threatened to sue Esurf.
Esurf expressly reserves the right
to review every Account for excessive space and bandwidth utilization, and to
terminate or apply additional fees to those Accounts that exceed allowed levels.
Esurf expressly reserves the right
to terminate, without notice to you, any and all Services where, in Esurf's
sole discretion, you are harassing or threatening Esurf and/or any of Esurf's
employees.
11. NO SPAM; LIQUIDATED DAMAGES
No Spam. We do not tolerate the
transmission of spam. We monitor all traffic to and from our web servers for
indications of spamming and maintain a spam abuse complaint center to
register allegations of spam abuse. Customers suspected to be using our products
and services for the purpose of sending spam are fully investigated. If we
determine there is a problem with spam, we will take the appropriate action
to resolve the situation.
We define spam as the sending of
Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or
Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients
as an advertisement or otherwise, without first obtaining prior confirmed
consent to receive these communications. This can include, but is not limited
to, the following:
i. Email Messages
ii. Newsgroup postings
iii. Windows system messages
iv. Pop-up messages (aka "adware" or
"spyware" messages)
v. Instant messages (using AOL, MSN, Yahoo or
other instant messenger programs)
vi. Online chat room advertisements
vii. Guestbook or Website Forum postings
viii. Facsimile Solicitations
ix. Text/SMS Messages
We will not allow our servers and
services to be used for the purposes described above. In order to use our
products and services, you must not only abide by all applicable laws and
regulations, which include the Can-Spam Act of 2003 and the Telephone
Consumer Protection Act, but you must also abide by this no spam policy.
Commercial advertising and/or bulk emails or faxes may only be sent to
recipients who have "opted-in" to receive messages. They must
include a legitimate return address and reply-to address, the sender's
physical address, and an opt-out method in the footer of the email or fax.
Upon request by us, conclusive proof of opt-in may be required for an email
address or fax number.
If we determine the account,
products, or services in question are being used in association with spam, we
may re-direct, suspend, or cancel any account, web site hosting, domain
registration, email boxes, or other applicable products or services. In such
event, at our election, we may require you to respond by email to us stating
that you will cease to send spam and/or have spam sent on your behalf and to
require a non-refundable reactivation fee to be paid before the site, email
boxes, and/or services are reactivated.
We encourage all customers and
recipients of email generated from our products and services to report
suspected spam. Suspected abuse can be reported by email or through our Spam
Abuse Complaint Center on the Web. Web: report abuse.
Liquidated Damages. You agree that we may
immediately terminate any Account which we believe, in our sole and absolute
discretion, is transmitting or is otherwise connected with any spam or other
unsolicited bulk email. In addition, if actual damages cannot be reasonably
calculated then you agree to pay us liquidated damages in the amount of $1.00
for each piece of spam or unsolicited bulk email transmitted from or
otherwise connected with your Account.
12. TRADEMARK AND/OR COPYRIGHT
CLAIMS
Esurf supports the protection of
intellectual property. If you would like to submit (i) a trademark
claim for violation of a mark on which you hold a valid, registered trademark
or service mark, or (ii) a copyright claim for material on which you hold a
bona fide copyright, please refer to Esurf’s Trademark and/or Copyright
Infringement Policy referenced above and available here.
13. LINKS TO THIRD-PARTY WEBSITES
This Site and the Services found
at this Site may contain links to third-party websites that are not owned or
controlled by Esurf. Esurf assumes no responsibility for the content, terms
and conditions, privacy policies, or practices of any third-party websites.
In addition, Esurf does not censor or edit the content of any third-party
websites. By using this Site or the Services found at this Site, you
expressly release Esurf from any and all liability arising from your use of
any third-party website. Accordingly, Esurf encourages you to be aware when
you leave this Site or the Services found at this Site and to review the
terms and conditions, privacy policies, and other governing documents of each
other website that you may visit.
14. DISCLAIMER OF REPRESENTATIONS
AND WARRANTIES
YOU
SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE
SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND
THE SERVICES FOUND AT THIS SITE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND
“WITH ALL FAULTS”. ESURF, ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE
PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ESURF, ITS
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR
WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE,
(II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH
HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE
SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER
ADVERTISING OR OTHERWISE) TO THIS SITE, AND ESURF ASSUMES NO LIABILITY
OR RESPONSIBILITY FOR THE SAME.
IN
ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN
INFORMATION OR ADVICE PROVIDED BY ESURF, ITS OFFICERS, DIRECTORS,
EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER
SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL
(I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY
KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS
SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE
FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE
FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR
EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND
AT THIS SITE.
15. LIMITATION OF LIABILITY
IN NO
EVENT SHALL ESURF, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND
ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR
ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY,
COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR
CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR
OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES
LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE,
(IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V)
THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO
OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION,
FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY
INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES
LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE,
(VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE
TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS,
BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR
CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY
PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE,
AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF
THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY,
CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR
NOT ESURF IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN
ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION
ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES FOUND AT THIS SITE
MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES,
OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
IN
ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL ESURF’S
TOTAL AGGREGATE LIABILITY EXCEED $10,000.00 U.S. DOLLARS.
THE
FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED
BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR
YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
16. INDEMNITY
You agree to protect, defend,
indemnify and hold harmless Esurf and its officers, directors,
employees, agents, and third party service providers from and
against any and all claims, demands, costs, expenses, losses, liabilities and
damages of every kind and nature (including, without limitation, reasonable
attorneys’ fees) imposed upon or incurred by Esurf directly or indirectly
arising from (i) your use of and access to this Site or the Services found at
this Site; (ii) your violation of any provision of this Agreement or the
policies or agreements which are incorporated herein; and/or (iii) your
violation of any third-party right, including without limitation any intellectual
property or other proprietary right. The indemnification obligations
under this section shall survive any termination or expiration of this
Agreement or your use of this Site or the Services found at this Site.
17. DISCONTINUED SERVICES; END OF
LIFE POLICY
Esurf reserves the right to cease
offering or providing any of the Services at any time, for any or no reason,
and without prior notice. Although Esurf makes great effort to maximize the
lifespan of all its Services, there are times when a Service we offer will be
discontinued or reach its End-of-Life ("EOL"). If that is the case,
that product or service will no longer be supported by Esurf, in any way,
effective on the EOL date.
Notice and Migration. In the event that any Service we
offer has reached or will reach EOL, we will attempt to notify you thirty or
more days in advance of the EOL date. It is your responsibility to take all
necessary steps to replace the Service by migrating to a new Service before
the EOL date, or by entirely ceasing reliance on said Service before the EOL
date. In either case, Esurf will either offer a comparable Service for you to
migrate to for the remainder of the term of your purchase, a prorated
in-store credit, or a prorated refund, to be determined by Esurf in its sole
and absolute discretion. Esurf may, with or without notice to you, migrate
you to the most up-to-date version of the Service, if available. You agree to
take full responsibility for any and all loss or damage arising from any such
migration.
No Liability. Esurf will not be liable to you or
any third party for any modification, suspension, or discontinuance of any of
the Services we may offer or facilitate access to.
18. FEES AND PAYMENTS
You acknowledge and agree that
your Payment Method may be charged by one of our affiliated entities, Go
Daddy Domains Canada, Inc., Go Daddy India Domains and Hosting Services Pvt
Ltd, or Go Daddy Europe, Ltd. If, during your purchase, your payment was
identified as being processed in the United States, your transaction will be
processed by Esurf.com, LLC, 14455 N. Hayden Rd., Scottsdale, AZ 85260; if
your payment was identified as being processed in Canada, your transaction
will be processed by Go Daddy Domains Canada, Inc., 2900-550 Burrard Street,
Vancouver, BC V6C 043; if your payment was identified as being processed in
the United Kingdom, your transaction will be processed by Go Daddy Europe,
Ltd., 5 New Street Square, London EC4A3TW; if your payment was identified as
being processed in India, your transaction will be processed by Go Daddy
India Domains and Hosting Services India Pvt Ltd, Flat 101, Sai Krishna
Enclave, 6-1-132/99, Plot No. 99, Skanagiri, Padmaraonagar 50061. If,
during your purchase, your payment was identified as being processed in a
country that is not listed above, your transaction may be processed by an
entity within the disclosed country that is affiliated with our local payment
service provider, and subject to the provisions of our Privacy Policy.
(A) GENERAL TERMS, INCLUDING
AUTOMATIC RENEWAL TERMS
You agree to pay any and all
prices and fees due for Services purchased or obtained at this Site at the
time you order the Services. All prices and fees are non-refundable
unless otherwise expressly noted in the Refund Policy section below, even if
your Services are suspended, terminated, or transferred prior to the end of
the Services term. Esurf expressly reserves the right to change or
modify its prices and fees at any time, and such changes or modifications
shall be posted online at this Site and effective immediately without need
for further notice to you. If you have purchased or obtained Services
for a period of months or years, changes or modifications in prices and fees
shall be effective when the Services in question come up for renewal as
further described below.
Except as prohibited in any
product-specific agreement, you may pay for Services by utilizing any of the
following “Payment Methods”: (i) by providing a valid credit card, (ii) by
using Esurf’s “Good As Gold Prepaid Services” (defined below); (iii) via an
electronic check from your personal or business checking account, as
appropriate (and as defined below); (iv) by using PayPal (as defined below),
(v) by using an International Payment Option (as defined below) or (vi) via
in-store credit balances, if applicable (and as defined below), each a
“Payment Method”. For Services that offer “Express Checkout”, clicking
the Express Checkout button will automatically place an order for that
Service and charge the primary Payment Method on file for your Account.
Confirmation of that order will be sent to the email address on file for your
Account. Your Payment Method on file must be kept valid if you have any
active Services in your Account.
In addition, you acknowledge and
agree that the location for the processing of your payments may change based
on the type of Payment Method chosen, any changes or updates made to your
Payment Method, or based on the currency selected for the Payment Method.
Other than as required by
applicable law, Esurf does not retain hard copy or electronic versions of
mandate, standing order or standing instruction forms and/or any signed
consents relating to your usage of our automatic renewal services, and we are
therefore unable to provide any such document upon request. You may
view or change your automatic renewal settings at any time by logging into
your Esurf account.
You acknowledge and agree that
where refunds are issued to your Payment Method, Esurf's issuance of a refund
receipt is only confirmation that Esurf has submitted your refund to the
Payment Method charged at the time of the original sale, and that Esurf has
absolutely no control over when the refund will be applied towards your Payment
Method’s available balance. You further acknowledge and agree that the
payment provider and/or individual issuing bank associated with your Payment
Method establish and regulate the time frames for posting your refund, and
that such refund posting time frames may range from five (5) business days to
a full billing cycle, or longer.
In the event a refund is issued to
your Payment Method and the payment provider, payment processor or individual
issuing bank associated with your Payment Method imposes any limitations on
refunds, including but not limited to, limitations as to the timing of the
refund or the number of refunds allowed, then Esurf, in its sole and absolute
discretion, reserves the right to issue the refund either (i) in the form of
an in-store credit; or (ii) via issuance of a Esurf check, which will be sent
to the mailing address on file for your Account. Esurf also has
the right, but not the obligation, to offer an in-store credit for
customers seeking refunds, even if there are no limitations on refunds
imposed by the Payment Method. For the avoidance of doubt, any and all
refunds processed via the issuance of either in-store credits or a Esurf
check are solely within Esurf’s discretion and are not available at customer
request.
If you are being billed on a
monthly basis, your monthly billing date will be based on the date of the
month you purchased the Services unless that date falls after the 28th of the
month, in which case your billing date will be the 28th of each month.
IN ORDER
TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF
SERVICES, ALL SERVICES ARE OFFERED ON AUTOMATIC
RENEWAL. EXCEPT FOR REASONS DESCRIBED BELOW IN THIS
SECTION, AUTOMATIC RENEWAL AUTOMATICALLY RENEWS THE APPLICABLE SERVICE UPON
EXPIRATION OF THE THEN CURENT TERM FOR A RENEWAL PERIOD EQUAL IN TIME TO THE
MOST RECENT SERVICE PERIOD (EXCEPT FOR DOMAIN NAMES WHICH MAY RENEW FOR THE
ORIGINAL SERVICE PERIOD). FOR EXAMPLE, IF YOUR LAST SERVICE
PERIOD IS FOR ONE YEAR, YOUR RENEWAL PERIOD WILL TYPICALLY BE FOR ONE
YEAR. HOWEVER, IN THE EVENT RENEWAL WITH THE
PAYMENT METHOD ON FILE FAILS, ESURF MAY ATTEMPT TO RENEW THE
APPLICABLE SERVICE FOR A PERIOD LESS THAN THE ORIGINAL SUBSCRIPTION PERIOD TO
THE EXTENT NECESSARY FOR THE TRANSACTION TO SUCCEED.
UNLESS
YOU DISABLE THE AUTOMATIC RENEWAL OPTION, ESURF WILL AUTOMATICALLY RENEW THE
APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM
THE PAYMENT METHOD YOU HAVE ON FILE WITH ESURF AT ESURF’S THEN CURRENT RATES,
WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE
ORIGINAL SERVICE PERIOD. IN ORDER TO SEE THE RENEWAL SETTINGS
APPLICABLE TO YOU AND YOUR SERVICES, SIMPLY LOG INTO YOUR ACCOUNT
MANAGER FROM THIS SITE AND FOLLOW THE STEPS FOUND HERE. IF YOU DO NOT WISH FOR ANY
SERVICE TO AUTOMATICALLY RENEW, YOU MAY ELECT TO CANCEL RENEWAL, IN WHICH
CASE, YOUR SERVICES WILL TERMINATE UPON EXPIRATION OF THE THEN
CURRENT TERM, UNLESS YOU MANUALLY RENEW YOUR SERVICES PRIOR TO THAT DATE (IN
WHICH CASE THE SERVICES WILL AGAIN BE SET TO AUTOMATIC
RENEWAL). IN OTHER WORDS, SHOULD YOU ELECT TO CANCEL YOUR
PRODUCT AND FAIL TO MANUALLY RENEW YOUR SERVICES BEFORE THEY EXPIRE, YOU MAY
EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, AND ESURF SHALL NOT BE LIABLE
TO YOU OR ANY THIRD PARTY REGARDING THE SAME.
IN
ADDITION, ESURF MAY PARTICIPATE IN “RECURRING BILLING PROGRAMS” OR “ACCOUNT
UPDATER SERVICES” SUPPORTED BY YOUR CREDIT CARD PROVIDER (AND ULTIMATELY
DEPENDENT ON YOUR BANK’S PARTICIPATION). IF WE ARE UNABLE TO
SUCCESSFULLY CHARGE YOUR EXISTING PAYMENT METHOD, YOUR CREDIT CARD PROVIDER
(OR YOUR BANK) MAY NOTIFY US OF UPDATES TO YOUR CREDIT CARD NUMBER AND/OR
EXPIRATION DATE, OR THEY MAY AUTOMATICALLY CHARGE YOUR NEW CREDIT CARD ON OUR
BEHALF WITHOUT NOTIFICATION TO US. IN ACCORDANCE WITH RECURRING BILLING
PROGRAM REQUIREMENTS, IN THE EVENT THAT WE ARE NOTIFIED OF AN UPDATE TO YOUR
CREDIT CARD NUMBER AND/OR EXPIRATION DATE, ESURF WILL AUTOMATICALLY UPDATE
YOUR PAYMENT PROFILE ON YOUR BEHALF. ESURF MAKES NO GUARANTEES THAT WE WILL
REQUEST OR RECEIVE UPDATED CREDIT CARD INFORMATION. YOU ACKNOWLEDGE AND AGREE
THAT IT IS YOUR SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN YOUR ACCOUNT
SETTINGS, INCLUDING BUT NOT LIMITED TO (I) CANCELLING PRODUCTS AND (II) ENSURING
YOUR ASSOCIATED PAYMENT METHOD(S) ARE CURRENT AND VALID. FURTHER, YOU
ACKNOWLEDGE AND AGREE THAT YOUR FAILURE TO DO SO, MAY RESULT IN THE
INTERRUPTION OR LOSS OF SERVICES, AND ESURF SHALL NOT BE LIABLE TO YOU OR ANY
THIRD PARTY REGARDING THE SAME.
If for any reason Esurf is unable
to charge your Payment Method for the full amount owed for the Services
provided, or if Esurf receives notification of a chargeback, reversal,
payment dispute, or is charged a penalty for any fee it previously charged to
your Payment Method, you agree that Esurf may pursue all available lawful
remedies in order to obtain payment, including but not limited to, immediate
cancellation, without notice to you, of any domain names or Services
registered or renewed on your behalf. Esurf also reserves the right to
charge you reasonable "administrative fees" or "processing
fees" for (i) tasks Esurf may perform outside the normal scope of its
Services, (ii) additional time and/or costs Esurf may incur in providing its
Services, and/or (iii) your noncompliance with this Agreement (as determined
by Esurf in its sole and absolute discretion). Typical administrative
or processing fee scenarios include, but are not limited to (i) customer
service issues that require additional personal time or attention; (ii) UDRP
actions(s) in connection with your domain name(s) and/or disputes that
require accounting or legal services, whether performed by Esurf staff or by
outside firms retained by Esurf; (iii) recouping any and all costs and fees,
including the cost of Services, incurred by Esurf as the results of
chargebacks or other payment disputes brought by you, your bank or Payment
Method processor. These administrative fees or processing fees will be billed
to the Payment Method you have on file with Esurf.
Esurf may offer product-level
pricing in various currencies; however, transaction processing is supported
only in U.S. dollars and a select number of the currency options displayed on
this Site ("Supported Currency" or “Supported Currencies”). If the
currency selected is a Supported Currency, then the transaction will be
processed in the Supported Currency and the pricing displayed during the
checkout process will be the actual amount processed and submitted to your bank
for payment. If the currency selected is not a Supported Currency, then the
transaction will be processed in U.S. dollars and the pricing displayed
during the checkout process will be an estimated conversion price at the time
of purchase. In either case (whether the currency selected is a Supported
Currency or not), if the transaction is processed in a currency that differs
from the currency of your bank account, you may be charged exchange rate
conversion fees by your bank. In addition, due to time differences
between (i) the time you complete the checkout process, (ii) the time the
transaction is processed, and (iii) the time the transaction posts to your
bank statement, the conversion rates may fluctuate, and Esurf makes no
representations or warranties that (a) the amount submitted to your bank for
payment will be the same as the amount posted to your bank statement (in the
case of a Supported Currency) or (b) the estimated conversion price will be
the same as either the amount processed or the amount posted to your bank
statement (in the case of a non-Supported Currency), and you agree to waive
any and all claims based upon such discrepancies (including any and all
claims for a refund based on the foregoing). In addition, regardless of the
selected currency, you acknowledge and agree that you may be charged Value
Added Tax ("VAT"), Goods and Services Tax ("GST"), or
other localized fees and/or taxes, based on your bank and/or the country
indicated in your billing address section.
(B) REFUND POLICY
Products and Services available
for refunds are described here (“Refund
Policy”).
In the event you purchase a
product that includes a free domain name, if you cancel the product, the
list price for the domain name will be deducted from the refund amount. The
list price is the price of the domain name listed on Esurf’s website and
is not subject to any promotion, discount, or other reduction in price.
(C) GOOD AS GOLD PREPAID SERVICES
Service Details
By using Good As Gold Prepaid
Services, you may transfer funds to Esurf in order to fund your Good As Gold
Prepaid Services account (“Good As Gold Account”). You may then use
your Good As Gold Account to purchase any Services. You may fund
your Good As Gold Account by wire transfer. All payments must be for the full
amount required at purchase.
You acknowledge that funds
transferred to your Good As Gold Account will be held by Esurf and will not
accrue or pay interest for your benefit. To the extent any interest may
accrue, you understand and agree that Esurf shall be entitled to receive and
keep any such amounts to cover costs associated with Good As Gold Prepaid
Services.
You acknowledge that all
transactions using Good As Gold Prepaid Services will be conducted in U.S.
dollars.
Your Good As Gold Account must be
funded on an initial basis with no less than funds equivalent to $100.00 U.S.
dollars.
Wire transfers may be initiated in
foreign currency to fund your Good As Gold Account, however the natural
currency of the Wild West Domains bank account is U.S. Dollars. Foreign
currency wires will be automatically converted and deposited in U.S. Dollars.
Please note that exchange rate fees may apply. You agree that you will
be responsible for all wire transfer fees, both incoming and outgoing,
associated with your Good As Gold Account. Any non-U.S. wire transfers may be
subject to fees by your bank, intermediary banks, or Esurf’s bank, which
may reduce the amount of the money received by Esurf’s bank and subsequently
funded into your Good As Gold Account. You hereby expressly authorize Esurf (i)
to reduce your Good As Gold Account by the amount of wire transfer fees Esurf
incurs in order to receive your funds; and/or (ii) to charge a twenty-dollar
($20.00) service fee (“Service Fee”) in connection with the termination of
your Good As Gold Account. All fees are subject to change at any time,
and such changes shall be posted online and effective immediately
without need for further notice to you.
You can verify the remaining funds
in your Good As Gold Account at any time by logging into “Manage Your
Account” or through the shopping cart on the Esurf website. Should you decide
to terminate your Good As Gold Account (or should Esurf opt to terminate your
Good As Gold Account because you have breached an obligation under the Good
As Gold Service Agreement), then the balance in your Good As Gold Account
will be refunded, net the Service Fee.
Additional funds may be added to
your Good As Gold Account at any time. The preferred minimum increment for
funds transfers is $100.00.
Your Use of Good As Gold Prepaid
Services
Use of funds in your Good As Gold Account
can only be made through the Esurf purchase process at Esurf’s website.
Purchases may not be made unless there are sufficient, available funds in
your Good As Gold Account at the time of purchase to cover the entire
purchase amount, including any related fees as set forth herein or in other
relevant agreements.
You will be able to access your
Good As Gold Account activity and records from the “Manage Your Account” link
on Esurf’s website. Your Good As Gold Account will show purchases and the amount
of funds remaining in your Good As Gold Account. Esurf reserves the right at
all times to disclose any information about your Good As Gold Account as Esurf
deems necessary to satisfy any applicable law, regulation, legal process or
governmental request, or to edit, refuse to post or to remove any information
or materials, in whole or in part from your Good As Gold Account, in the sole
and absolute discretion of Esurf.
(D) PAY BY CHECK (ELECTRONIC
CHECK)
By using Esurf’s pay by check
option (“Pay By Check”), you can purchase Esurf Services using an electronic
check (from your personal or business checking account, as appropriate). In
connection therewith, you agree to allow Certegy Check Services, Inc.
(“Certegy”) to debit the full amount of your purchase from your checking
account (“Checking Account”), which is non-refundable. Certegy will create an
electronic funds transfer (“EFT”) or bank draft, which will be presented to
your bank or financial institution for payment from your Checking Account.
The Checking Account must be at a financial institution in the United States,
and the check must be payable in U.S. dollars.
It is your responsibility to keep
your Checking Account current and funded. You acknowledge and agree that (i)
Certegy reserves the right to decline a transaction for any reason
(including, but not limited to, payments that fail to go through as a result
of your Checking Account no longer existing or not holding
available/sufficient funds) and (ii) in such event, neither Certegy nor Esurf
shall be liable to you or any third party regarding the same. If for
any reason Certegy is unable to withdraw the full amount owed for the
Services provided, you agree that Certegy and Esurf may pursue all available
lawful remedies in order to obtain payment (plus applicable fees). Esurf
is not responsible for the actions of Certegy. You agree that if the
EFT or bank draft is returned unpaid, you will pay a service charge in
accordance with the fees provided below, or as otherwise permitted by law.
These fees may be debited from your Checking Account using an EFT or bank
draft. All fees are in U.S. Dollars.
Esurf and its service providers,
including but not limited to Certegy Check Services, Inc. and Complete
Payment Recovery Services, Inc., may provide you with notices, including
those regarding changes to these terms of service, including by, but not
limited to, email, regular mail, SMS, MMS, text message, postings on the
services, or other reasonable means now known or hereafter developed. Such
notices may not be received if you violate these terms of service by
accessing the services in an unauthorized manner. Your agreement to these
terms of service constitutes your agreement that you are deemed to have
received any and all notices that would have been delivered had you accessed
the services in an authorized manner. You further expressly authorize Esurf
and its Service Providers, including but not limited to Certegy Check
Services, Inc. and Complete Payment Recovery Services, Inc., and their
affiliates to contact you, via auto-dialer, pre-recorded messages, or any
other method, on any of your mobile phone numbers or emails. You further
acknowledge that email addresses you provide are not shared, accessed by
others and are not employer-related email addresses.
(E) PAY BY PAYPAL
By using Esurf’s pay by PayPal
payment option (“PayPal”), you can purchase Services using PayPal. In
connection therewith, you agree to allow PayPal to debit the full amount of
your purchase from your PayPal account (“PayPal Account”) or from credit
card(s), bank account(s), or other allowed payment method(s) linked to your
PayPal Account (“PayPal Funding Source”).
It is your responsibility to keep
your PayPal Account and PayPal Funding Source current and funded, and your
PayPal Account backed by a valid credit card. You acknowledge and agree
that (i) PayPal reserves the right to decline a transaction for any reason
(including, but not limited to, payments that fail to go through as a result
of your PayPal Account or PayPal Funding Source no longer existing or not
holding available/sufficient funds) and (ii) in such event, neither PayPal
nor Esurf shall be liable to you or any third party regarding the same.
If for any reason PayPal is unable to withdraw the full amount owed for your
purchase, you agree that PayPal and Esurf may pursue all available lawful
remedies in order to obtain payment. You agree that if the transaction is
returned unpaid, you will pay a service charge of $25.00 or the maximum
amount allowed by law, which may be debited from your PayPal Account or
PayPal Funding Source.
By clicking the box labeled “I
agree” to the terms of the PayPal payment option, you authorize a debit of
the full amount of your purchase from your PayPal Account or PayPal Funding
Source.
(F) INTERNATIONAL PAYMENT
OPTIONS
Esurf offers a variety of
alternative international payment options through a variety of International
Payment Providers (“IPP”). In the event you select an IPP, you
represent that you have already agreed to any and all of the IPP’s applicable
customer service agreements in advance of completing your transaction at Esurf.
You also agree to allow the IPP to debit the full amount of your purchase
from the selected bank account, e-wallet account (including credit card(s),
bank account(s), or other allowed payment method(s) linked to your e-wallet
account) or any other type of account associated with the selected IPP
(including but not limited to, prepaid cards and mobile payments),
collectively “Funding Sources”. In addition, you agree to allow the selected
IPP to debit, if applicable, an “Exchange Rate Conversion Fee”, as well as
any other fees or charges applicable to your agreement with the IPP
(collectively, the “IPP Fees”), from your Funding Sources. You understand and
agree that IPP Fees are subject to change at any time by the IPP without
notice to you by Esurf.
It is your responsibility to keep
your Funding Sources current and funded. You acknowledge and agree that (i)
the IPP reserves the right to decline a transaction for any reason
(including, but not limited to, payments that fail to go through as a result
of your Funding Sources no longer existing or not holding
available/sufficient funds) and (ii) in such event, neither the IPP nor Esurf
shall be liable to you or any third party regarding the same. You acknowledge
that Esurf will not attempt to fulfill the Services purchased by you until Esurf
receives confirmation of payment from the IPP through its associated payment
processor. You acknowledge there may be a gap of several hours or days
between the time you place an order and the time the IPP confirms payment
through its associated payment processor. If Esurf does not receive
confirmation of payment from the IPP through its associated payment processor
within thirty (30) days from when the order is placed, your order may be
cancelled, at which time you will need to commence the purchase process
again. In the event that you would like to cancel payment for a pending
transaction, you may cancel the order through your Esurf account. Payments
received on previously cancelled orders will be automatically refunded to the
original Payment Method when possible.
If, at the time Esurf receives
confirmation of payment from the IPP (through its associated payment
processor), either (i) the Services (including domain names) are no longer
available for purchase; or (ii) a pending order has been cancelled in our
systems; or (iii) the confirmation of payment does not match the dollar
amount of the pending order, and as a result your purchase is either
over-funded or under-funded, Esurf may automatically issue a partial refund
(in the case of over-funding) or a full refund (in the case of under-funding)
to your Funding Source. If the IPP (or its associated payment processor)
imposes refund limitations of any kind, Esurf reserves the right to issue
refunds to an in-store credit balance. If you receive a full refund,
you will need to begin the purchase process again. You acknowledge and
agree that the IPP reserves the right not to refund IPP Fees associated with
a refunded transaction. Accordingly, any refunds issued by Esurf will be
net of the IPP Fees unless otherwise specified.
(G) IN-STORE CREDIT BALANCES
In the event that your Account
contains an in-store credit balance, you may apply any available credit
balance to any future purchase in your Account. In the event that
your Account contains an in-store credit balance, you hereby authorize Esurf
to apply any available credit balance to any outstanding administrative fees,
chargebacks or other fees related to your Account. In the event that
your default Payment Method fails for an automated billing in connection with
the processing of any Service renewals, Esurf may utilize any available
in-store credit balance if there are enough funds to cover the entire
transaction. Regardless of the amount of in-store credit available in your
account, Esurf is not responsible for the loss of products resulting
from an inability to collect funds from your default Payment Methods or the
in-store credit. In-store credits will be applied based on the currency
selected in the shopping cart at the time of purchase (or renewal). If you
have more than one in-store credit, then the credits will be processed
according to the age of the credit, with the oldest in-store credit being
applied first. If additional funds are required to complete the purchase or
renewal, credits held in a non-selected currency will be converted using Esurf’s
daily exchange rate based on the age of the credit (oldest to newest) until (i)
enough funds are allocated to complete the transaction, or (ii) there is no
available balance left in your account. You understand and agree that at the
time of conversion, Esurf may also impose an additional administrative fee to
compensate for the risks and costs associated with providing currency
conversion services.
You can verify your available
in-store credit balance at any time by logging into “Manage Your Account” or
through the shopping cart on the Esurf website. You acknowledge that in-store
credit balances are non-transferrable, may only be used in the Account
in which they were acquired and may expire. Complimentary in-store credits
will expire two years after issuance. In the event that Esurf
terminates your Account, you acknowledge and agree that any remaining
available in-store credit balance will be forfeited.
You also acknowledge that funds
available in your in-store credit balance will be held by Esurf and will not
accrue or pay interest for your behalf. To the extent any interest may
accrue, you understand and agree that Esurf shall be entitled to receive and
keep any such amounts to cover costs associated with supporting the in-store
credit balance functionality.
(H) GIFT CARDS
This section sets forth the terms
and conditions of Your use of Go Daddy's Gift Card service and its related
services (collectively, the "Card"). Go Daddy grants You a
non-exclusive license to use the Card, provided, however, that You abide by
the terms and conditions set forth herein and in each of Go Daddy's policies
and procedures.
The Services generally allow You
to redeem the Card for goods and services from Go Daddy except to purchase
another gift card, an auction membership, a product that would include a free
auction membership, or any offer that excludes purchase by gift card.
The Card is a non-reloadable,
non-refundable, non-personalized prepaid gift card, and may not be re-sold,
transferred, redeemed for cash or applied to any account, except to the
extent required by law. The Card is not an account, does not earn interest,
and is not FDIC insured. The Card is not a credit card. You authorize us to
pay all transactions made using the Card with the funds credited to the Card.
You agree to use the Card only as provided in this Agreement and in accordance
with applicable law. You agree the amount of funds shown on our records
regarding the Card will determine the balance on the Card. Once the Card
balance reaches zero dollars ($0), all transactions will be declined. In any
case where the recipient of the Card is given value through the use of the
Card greater than the remaining balance, You will pay us on demand the amount
by which the transactions exceeded the balance.
You may give the Card to any
recipient, however in order for the recipient to redeem the value credited to
the Card, they will have to create an account with Go Daddy and agree to any
policies and agreements related to the product or service purchased.
The Card is like cash in that it
may be used immediately without identification. You agree to use Your best
efforts to protect the Card against loss, theft, or unauthorized use. You may
call customer service to report a lost or stolen Card. At our discretion, a
replacement Card may be issued, less any applicable fees.
Go Daddy reserves the right, in
its sole discretion, to deem any value on a Card not redeemed within five (5)
years from purchase date to be expired.
(I) Expired Domain Name Purchases
For expired domains names
purchased through Your account, You acknowledge and agree that You are
responsible for payment within forty-eight (48) hours of auction close for
the successful bid amount plus the one (1) year renewal or transfer fee (from
the end of the domain name’s previous registration period), plus ICANN fee,
if applicable, or any valid payment method associated with the account, will
be charged on the third day following the auction close.
19. UNCLAIMED PROPERTY; DORMANCY
CHARGES
Please be advised that if a
customer has an outstanding account balance (a credit positive balance) for
three (3) years or more for any reason, and (i) Esurf is unable to issue
payment to such customer or (ii) Esurf issued payment to such customer in the
form of a paper check, but the check was never cashed, then Esurf shall turn
over such account balance to the State of Arizona in accordance with state
law. You acknowledge and agree that in either case (i) or (ii) above, Esurf
may withhold a dormancy charge in an amount equal to the lesser of $15.00 or
the total outstanding account balance associated with such
customer.
20. SUCCESSORS AND ASSIGNS
This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
heirs, successors and assigns.
21. NO THIRD-PARTY BENEFICIARIES
Nothing in this Agreement shall be
deemed to confer any third-party rights or benefits.
22. U.S. EXPORT LAWS
This Site and the Services found
at this Site are subject to the export laws, restrictions, regulations and
administrative acts of the United States Department of Commerce, Department
of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and
other United States authorities (collectively, “U.S. Export Laws”).
Users shall not use the Services found at this Site to collect, store or
transmit any technical information or data that is controlled under U.S.
Export Laws. Users shall not export or re-export, or allow the export
or re-export of, the Services found at this Site in violation of any U.S.
Export Laws. None of the Services found at this Site may be downloaded
or otherwise exported or re-exported (i) into (or to a national or resident
of) any country with which the United States has embargoed trade; or (ii) to
anyone on the U.S. Treasury Department's list of Specially Designated
Nationals or the U.S. Commerce Department's Denied Persons List, or any other
denied parties lists under U.S. Export Laws. By using this Site and the
Services found at this Site, you agree to the foregoing and represent and
warrant that you are not a national or resident of, located in, or under the
control of, any restricted country; and you are not on any denied parties
list; and you agree to comply with all U.S. Export Laws (including
“anti-boycott”, “deemed export” and “deemed re-export” regulations). If
you access this Site or the Services found at this Site from other countries
or jurisdictions, you do so on your own initiative and you are responsible
for compliance with the local laws of that jurisdiction, if and to the extent
those local laws are applicable and do not conflict with U.S. Export
Laws. If such laws conflict with U.S. Export Laws, you shall not access
this Site or the Services found at this Site. The obligations under
this section shall survive any termination or expiration of this Agreement or
your use of this Site or the Services found at this Site.
23. FOR INDIA RESIDENTS ONLY
You expressly agree that: (i) Esurf
(or its service provider) may contact you by phone in order to resolve your
complaint or dispute, or your current service or billing issue; and (ii) in
order to resolve such complaint, dispute or issue, Esurf may use and may
disclose to its service provider the following information: call recordings,
customer name, phone number(s) and contact preferences, tenure of your
relationship with Esurf, products used, and information about the nature of
your complaint, dispute, or service issue.
24. COMPLIANCE WITH LOCAL LAWS
Esurf makes no representation or
warranty that the content available on this Site or the Services found at
this Site are appropriate in every country or jurisdiction, and access to
this Site or the Services found at this Site from countries or jurisdictions
where its content is illegal is prohibited. Users who choose to access
this Site or the Services found at this Site are responsible for compliance
with all local laws, rules and regulations.
25. DISPUTES, BINDING INDIVIDUAL
ARBITRATION AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
PLEASE READ THIS SECTION
CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE
PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.
(A) Disputes. The
terms of this Section shall apply to all Disputes between you and Esurf,
except for disputes governed by the Uniform Domain Name Dispute Resolution
Policy referenced above and available here. For the
purposes of this Section, “Dispute” shall mean any dispute, claim, or action
between you and Esurf arising under or relating to any Esurf Services or
Products, Esurf’s websites, these Terms, or any other transaction involving
you and Esurf, whether in contract, warranty, misrepresentation, fraud, tort,
intentional tort, statute, regulation, ordinance, or any other legal or
equitable basis, and shall be interpreted to be given the broadest meaning
allowable under law. YOU AND ESURF AGREE
THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE
OF ACTION BY YOU OR ESURF FOR
(i) TRADE SECRET MISAPPROPRIATION, (ii) PATENT INFRINGEMENT, (iii) COPYRIGHT
INFRINGEMENT OR MISUSE, AND (iv) TRADEMARK INFRINGEMENT OR DILUTION.
Moreover, notwithstanding anything else in these Terms, you agree that a
court, not the arbitrator, may decide if a claim falls within one of these
four exceptions.
(B) Binding Arbitration. You
and Esurf further agree: (i) to arbitrate all Disputes between the parties
pursuant to the provisions in these Terms; (ii) these Terms memorialize a
transaction in interstate commerce; (iii) the Federal Arbitration Act (9
U.S.C. §1, et seq.) governs the interpretation and enforcement of this
Section; and (iv) this Section shall survive termination of these Terms.
ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT
PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award
you the same damages as a court sitting in proper jurisdiction, as limited by
the Limitation of Liability set forth in Section 15 of this Agreement and may
award declaratory or injunctive relief only in favor of the individual party
seeking relief and only to the extent necessary to provide relief warranted
by that party’s individual claim. In addition, in some instances, the costs
of arbitration could exceed the costs of litigation and the right to
discovery may be more limited in arbitration than in court. The decision of
the arbitrator shall be final and enforceable by any court with jurisdiction
over the parties.
(C) Small Claims Court. Notwithstanding
the foregoing, you may bring an individual action in the small claims court
of your state or municipality if the action is within that court’s
jurisdiction and is pending only in that court.
(D) Dispute Notice. In
the event of a Dispute, you or Esurf must first send to the other party a
notice of the Dispute that shall include a written statement that sets forth
the name, address and contact information of the party giving it, the facts giving
rise to the Dispute, and the relief requested (the “Dispute Notice”). The
Dispute Notice to Esurf must be addressed to: Esurf , 14455 N. Hayden Rd.,
Scottsdale, AZ 85260, Attn.: Legal Department (the “Esurf Notice Address”).
The Dispute Notice to you will be sent by certified mail to the most recent
address we have on file or otherwise in our records for you. If Esurf
and you do not reach an agreement to resolve the Dispute within sixty (60)
days after the Dispute Notice is received, you or Esurf may commence an
arbitration proceeding pursuant to this Section. Following submission and
receipt of the Dispute Notice, each of us agrees to act in good faith to seek
to resolve the Dispute before commencing arbitration.
(E) WAIVER OF CLASS
ACTIONS AND CLASS ARBITRATIONS. YOU AND ESURF AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST
THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR
CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING
WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS
ARBITRATIONS. NEITHER YOU NOR ESURF WILL
SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL
ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OF PROPOSES TO
ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING
WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL
PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
(F) Arbitration Procedure. If
a party elects to commence arbitration, the arbitration will be administered
by the American Arbitration Association (“AAA”) and governed by the Consumer
Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set
forth in these Terms, except that AAA may not administer any multiple
claimant or class arbitration, as the parties agree that the arbitration
shall be limited to the resolution only of individual claims. The AAA
Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict
between the AAA Rules and the rules set forth in these Terms, the rules set
forth in these Terms shall govern. You may, in arbitration, seek any and all
remedies otherwise available to you pursuant to federal, state, or local
laws, as limited by the Limitation of Liability set forth in Section 15 of
this Agreement. All Disputes shall be resolved by a single neutral arbitrator,
and both parties shall have a reasonable opportunity to participate in the
selection of the arbitrator. The arbitrator is bound by these Terms. The
arbitrator, and not any federal, state or local court or agency, shall have
exclusive authority to resolve all disputes arising out of or relating to the
interpretation, applicability, enforceability or formation of these Terms,
including, but not limited to, any claim that all or any part of these Terms
is void or voidable. The arbitrator shall also have exclusive authority
to rule on his or her own jurisdiction, including any objections with respect
to the existence, scope, or validity of the arbitration agreement or to the
arbitrability of any claim or counterclaim. Notwithstanding this broad
delegation of authority to the arbitrator, a court may determine the limited
question of whether a claim or cause of action is for (i) trade secret
misappropriation, (ii) patent infringement, (iii) copyright infringement or
misuse, or (iv) trademark infringement or dilution, which are excluded from
the definition of “Disputes” as stated above. The arbitrator shall be
empowered to grant whatever relief would be available in a court under law or
in equity. The arbitrator’s award shall be binding on the parties and may be
entered as a judgment in any court of competent jurisdiction. You may choose
to engage in arbitration hearings by telephone. Arbitration hearings not
conducted by telephone shall take place in a location reasonably accessible
from your primary residence (or principal place of business if you are a
small business), or in Maricopa County, Arizona, at your option.
(G) Initiation of
Arbitration Proceeding. If either you or Esurf decide to arbitrate a
Dispute, we agree to the following procedure:
i. Write a Demand for
Arbitration. The demand must include a description of the Dispute and the
amount of damages sought to be recovered. You can find a copy of a Demand for
Arbitration at http://www.adr.org (“Demand for Arbitration: Consumer
Arbitration Rules”).
ii. Send one copy of the
Demand for Arbitration to AAA by mail at American Arbitration Association
Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ
08043.
iii. Send one copy of the Demand
for Arbitration to the other party at the same address as the Dispute Notice,
or as otherwise agreed to by the parties.
(H) Hearing Format. In
all hearing formats, the arbitrator shall issue a written decision that
explains the essential findings and conclusions on which an award, if any, is
based. During the arbitration, the amount of any settlement offer made by Esurf
or you shall not be disclosed to the arbitrator until after the arbitrator
determines the amount, if any, to which you or Esurf is entitled. The
discovery or exchange of non-privileged information relevant to the Dispute
may be allowed during the arbitration.
(I) Arbitration Fees and
Payments.
i. Disputes involving $75,000 or
less. Esurf will promptly reimburse your filing fees and pay the AAA’s and
arbitrator’s fees and expenses. If you reject Esurf’s last written settlement
offer made before the arbitrator was appointed (“Esurf’s last written
offer”), your dispute goes all the way to an arbitrator’s decision (called an
“award”), and the arbitrator awards you more than Esurf’s last written offer,
Esurf will: (i) pay the greater of the award or $1,000; (ii) pay twice your
reasonable attorney’s fees, if any; and (iii) reimburse any expenses
(including expert witness fees and costs) that your attorney reasonably
accrues for investigating, preparing, and pursuing your claim in arbitration.
The arbitrator will determine the amount of fees, costs, and expenses unless
you and Esurf agree on them.
ii. Disputes involving more than
$75,000. The AAA rules will govern payment of filing fees and the AAA’s and
arbitrator’s fees and expenses.
iii. Disputes involving any
amount. In any arbitration you commence, Esurf will seek its AAA or
arbitrator’s fees and expenses, or your filing fees it reimbursed, only if
the arbitrator finds the arbitration frivolous or brought for an improper
purpose. In any arbitration Esurf commences, Esurf will pay all filing, AAA,
and arbitrator’s fees and expenses. Esurf will not seek its attorney’s
fees or expenses from you in any arbitration. Fees and expenses are not
included in determining the amount in dispute.
(J) Claims or Disputes
Must be Filed Within One Year. To the extent permitted by law, any
claim or dispute to which this Section applies must be filed within one year
in small claims or in arbitration. The one-year period begins when the claim
or Notice of Dispute first could be filed. If not filed within one
year, the claim or dispute will be permanently barred.
(K) 30-Day Opt-out
Period. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION
IN THIS DISPUTES SECTION, YOU MUST NOTIFY ESURF BY E-MAILING LEGALOPTOUT@ESURF.COM WITHIN
30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS (UNLESS A LONGER PERIOD IS
REQUIRED BY APPLICABLE LAW). In the e-mail, you must provide your (a) first
name, (b) last name (c) address, (d) phone number, and (e) account number(s)
and state the following: “I wish to opt out of the arbitration provision
contained in Esurf’s Universal Terms of Service Agreement.” By providing your
information in the method above, you are opting out of the agreement to
arbitrate contained in Esurf’s Universal Terms of Service. Your opt-out
request will only be valid if made within thirty (30) days of first accepting
the Universal Terms of Service. In the event that you opt-out consistent with
the procedure set forth above, all other terms shall contained herein shall
continue to apply, including those related to the applicable governing law
and the court(s) in which legal disputes may be brought.
(L) Amendments to this
Section. Notwithstanding any provision in these Terms to the
contrary, you and Esurf agree that if Esurf makes any future amendments to
the dispute resolution procedure and class action waiver provisions (other
than a change to Esurf’s address) in these Terms, Esurf will notify you and
you will have thirty (30) days from the date of notice to affirmatively
opt-out of any such amendments. If you affirmatively opt-out of any
future amendments, you are agreeing that you will arbitrate any Dispute
between us in accordance with the language of this Section as stated in these
current Terms, without any of the proposed amendments governing. If you
do not affirmatively opt-out of any future amendments, you will be deemed to
have consented to any such future amendments.
(M) Severability. If
any provision in this Section is found to be unenforceable, that provision
shall be severed with the remainder of these Terms remaining in full force
and effect. The foregoing shall not apply to the prohibition against class or
representative actions; if the prohibition against class or representative
actions is found to be unenforceable, this entire Section shall be null and
void. The terms of this Section shall otherwise survive any termination of
these Terms.
(N) Exclusive Venue for
Other Controversies. Esurf and you agree that any controversy
excluded from the dispute resolution procedure and class action waiver
provisions in this Section (other than an individual action filed in small
claims court) shall be filed only in the Superior Court of Maricopa County,
Arizona, or the United States District Court for the District of Arizona, and
each party hereby irrevocably and unconditionally consents and submits to the
exclusive jurisdiction of such courts for any such controversy. You
also agree to waive the right to trial by jury in any such action or
proceeding.
26. TITLES AND HEADINGS;
INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this
Agreement are for convenience and ease of reference only and shall not be
utilized in any way to construe or interpret the agreement of the parties as
otherwise set forth herein. Each covenant and agreement in this
Agreement shall be construed for all purposes to be a separate and independent
covenant or agreement. If a court of competent jurisdiction holds any
provision (or portion of a provision) of this Agreement to be illegal,
invalid, or otherwise unenforceable, the remaining provisions (or portions of
provisions) of this Agreement shall not be affected thereby and shall be
found to be valid and enforceable to the fullest extent permitted by law.
27. ENGLISH LANGUAGE CONTROLS
This Agreement, along with all
policies and the applicable product agreements identified above and incorporated
herein by reference (collectively, the “Agreement”), is executed in the
English language. To the extent any translation is provided to you, it is
provided for convenience purposes only, and in the event of any conflict
between the English and translated version, where permitted by law, the
English version will control and prevail. Where the translated version is
required to be provided to you and is to be considered binding by law (i)
both language versions shall have equal validity, (ii) each party acknowledges
that it has reviewed both language versions and that they are substantially
the same in all material respects, and (iii) in the event of any discrepancy
between these two versions, the translated version may prevail, provided that
the intent of the Parties has been fully taken into consideration.
28. CONTACT INFORMATION
If you have any questions about
this Agreement, please contact us by email or regular mail at the following
address:
Esurf Legal Department
14455 North Hayden Rd.
Suite 219
Scottsdale, AZ 85260
legal@Esurf.com
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