SiteMesh allows Users to provide personalized support and marketing to current customers (collectively, “Customers”) through a management and observability platform.
This is a contract between you and SiteMesh LLC. You must read and agree to these terms before using SiteMesh. If you do not agree to the terms and conditions of this Agreement, you do not have our permission to use SiteMesh. You may use SiteMesh only if you can form a binding contract with SiteMesh LLC, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to SiteMesh by anyone under eighteen (18) years of age is strictly prohibited and in violation of this Agreement. SiteMesh is not available to any Users previously removed from SiteMesh by SiteMesh LLC.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use SiteMesh as permitted by the features of SiteMesh. SiteMesh LLC reserves all rights not expressly granted herein in SiteMesh and the SiteMesh LLC Content (as defined below). SiteMesh LLC may terminate this license at any time for any reason or no reason.
Your account on SiteMesh (your “SiteMesh Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of SiteMesh Accounts for different types of Users. If you open a SiteMesh Account on behalf of a company, organization, or other entity, then: (i) “you” includes you and that entity; and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity's behalf. By connecting to SiteMesh with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User's SiteMesh Account without permission. When creating your SiteMesh Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your SiteMesh Account, and you must keep your SiteMesh Account secure. We encourage you to use two-factor authentication (2FA) with your SiteMesh Account. You must notify SiteMesh LLC immediately of any breach of security or unauthorized use of your SiteMesh Account. SiteMesh LLC will not be liable for any losses caused by any unauthorized use of your SiteMesh Account.
You may control your User profile and how you interact with SiteMesh by changing the settings in your Settings page. By providing SiteMesh LLC your email address you consent to our using the email address to send you SiteMesh-related notices, including any notices required by law, in lieu of communication by postal mail. With your consent, we may also use your email address to send you other messages, such as changes to features of SiteMesh and special offers. If you do not want to receive such email messages, you may opt out by clicking on the unsubscribe link on the bottom of our emails. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
The person who first completes the SiteMesh registration on behalf of any company, entity or organization (“Subscribing Organization”) is the initial "Administrator" for purposes of such Subscribing Organization's use of SiteMesh, and exercises certain options to initially determine the level of access, privacy, and security for SiteMesh related to the Subscribing Organization ("Administrator Account"). For example, the Administrator will determine who can be a User of SiteMesh under the Subscribing Organization associated with that Administrator and the level of privileges that such Users will possess. Once initial registration has been completed, each Subscribing Organization will be able to register additional Administrators). Each Administrator may designate other Users as additional and/or successor Administrators; provided that, each Administrator is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with all terms and conditions applicable to SiteMesh Accounts.
You may choose to allow SiteMesh LLC to automatically retrieve data from your system(s) or third-party systems or services on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow SiteMesh LLC to so automatically access such system(s) and services and you hereby grant SiteMesh LLC permission to access such system(s) and services and retrieve Customer Data (as defined below) therefrom by indicating the same within your SiteMesh Account. SiteMesh LLC disclaims any and all liability associated with accessing and retrieving Customer Data from such system(s) and services on your or your Subscribing Organization's behalf. In order to connect SiteMesh with any third-party service, you hereby designate SiteMesh LLC as your agent and attorney-in-fact in connection with such service and further authorize is to: (a) store your Customer Data relating to such service; (b) access such service using Customer Data you provide us; (c) use any materials you provide us in order to provide you SiteMesh; (d) gather and export from such service any Customer Data reasonably necessary for us to provide SiteMesh to you; and (e) otherwise take any action in connection with such service as is reasonably necessary for us to provide SiteMesh to you. You agree that those third-party service providers are entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. If at any time you do not have the right and authority to allow SiteMesh LLC automatic access to such system(s), then you hereby agree to immediately disable such functionality within your SiteMesh or Administrator Account.
It's simple; don't use SiteMesh to do anything illegal, harmful or spammy. By spammy we mean the definition outlined at Spamhaus.
Additionally you agree not to: (a) use SiteMesh in any manner to send emails with the following content: offer or suggest any illegal goods, pornography, sexually explicit material, advice, drugs, novelty items, or pharmaceutical information or products, credit repair services or opportunities, prostitution or illegal escorts, free product/free sample giveaways, claim your money/benefit/assistance or similar, excessive third-party promotions, and “get rich quick” or similar content; (b) use SiteMesh in any manner to repeatedly import, send, and delete Customers from an account; (c) use SiteMesh in any manner to contact your Customers at such a rate that your bounce, abuse, or unsubscribe rates move above SiteMesh's acceptable use limits; or (d) use SiteMesh to send email or text messages to Customers who have not explicitly opted in to hear from you (including, without limitation, purchased Customers, purchased lists, or Customers attained through co-registration (where a Customer is added to your list from filling out a form on a different website)).
In order to maintain strong deliverability for our customers the following categories are allowed but subject to additional monitoring. Traditionally these have had higher spam and unsubscribe rates so we do it to maintain strong deliverability for our customers.
By using SiteMesh, you represent and warrant that you meet all the requirements listed above, and that you won't use the service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise. SiteMesh may refuse service, close accounts of any users, and change eligibility requirements at any time.
As part of SiteMesh, we may send marketing and advertising communications on your behalf to Customers. In connection with such communications and your use of SiteMesh, you hereby represent and warrant that: (i) you have all necessary consents, licenses, rights and authorizations for us to send such communications on your behalf; (ii) you will not, either directly or indirectly, direct us to send communications to any person under the age of thirteen (13) years of age (including, without limitation, by including any individual under the age of thirteen (13) in any list of Customers you may provide to us; and (iii) your use of SiteMesh (including, without limitation, your provision of User Content, your creation of communications for Customers, collection of Customer lists and contact information, and your instructions for us to send such communications to Customers on your behalf) will be in compliance with any and all applicable laws, rules and regulations, including (without limitation) any data privacy and advertising laws, in each jurisdiction in which you will be sending marketing communications to a resident of the jurisdiction. You agree that, as between the parties, you are the sender of any email message, text message or other communication transmitted through the Service on your behalf. SiteMesh LLC is not responsible for reviewing the contents of any communication transmitted through the Services or transmitted by you related to your use of the Service, nor is it responsible for obtaining any necessary consents or permissions from the message recipients.
If you are a subscriber of SiteMesh SMS, you agree: (i) to comply in all respects with the Telephone Consumer Protection Act of 1991 and implementing regulations issued by the Federal Trade Commission the Federal Communications Commission, as applicable (collectively, the “TCPA”), the national Do Not Call list registry rules, state laws, rules and regulations that relate to automated phone call and text messaging, and the CTIA’s Messaging Principles and Best Practices (the “CTIA Principles”, collectively, the “Text Messaging Rules”); (ii) to get valid prior express written consent from Customers and any other end user prior to sending any text message through SiteMesh SMS in adherence with the Text Messaging Rules; (iii) to have a set of program terms Customers agree to that complies with the Text Messaging Rules; and (iv) to only use and disclose data for which you have given required notices and obtained the proper permissions as required by applicable law. You also acknowledge that as a subscriber, you will receive a non-exclusive, limited, non-transferable, freely revocable license to the short code, long code, or telephone number provided to you by SiteMesh or by our third-party provider. You further acknowledge upon termination of your SiteMesh Account or cancellation of your subscription to SiteMesh SMS, you will no longer have a license to the short code, long code or telephone number provided to you. The number(s) and/or code(s) will be released, without the guarantee of reclamation if you choose to reactivate your subscription.
You represent and warrant that you have incorporated a functional opt-out mechanism for Customers and other end users to withdraw consent to receive text messages from you, and that you honor such opt-outs no later than forty-eight (48) hours after receipt.
We make no representations or warranties with respect to the sending, receiving, recording, retaining or monitoring of SMS messages or other communications. You acknowledge that with respect to text messages sent through SiteMesh SMS on your behalf, SiteMesh shall not be considered the maker, dialer or initiator of the text messages or autodialed calls for purposes of the Text Messaging Rules. You acknowledge that you shall be deemed the maker, dialer or initiator of such messages and shall be solely responsible for complying with obligations under the Text Messaging Rules as a maker, dialer or initiator. These representations, warranties, and obligations are essential to our ability to provide you with access to SiteMesh SMS that is part of our Services. You agree to indemnify us and our affiliates in accordance with the terms of Section 12 for claims arising out of or related to your acts or omissions in connection with providing notice, obtaining consent and the sending of text messages and other communications regarding SiteMesh SMS. SiteMesh fully disclaims any warranties, express or implied, in regards to model notice, consent or terms it may provide. These resources are intended as informational only and are not intended to be used without review and approval by your legal counsel. In the event you use any guidance materials or sample language developed by or derived from SiteMesh, you agree to indemnify us and our affiliates in accordance with the terms of Section 12 for claims arising from your use of any such guidance materials or sample language that we provide to you, including our whitepaper(s).
By subscribing to SiteMesh SMS, you also acknowledge that you are not a business who sells consumable drug products, including cannabis and CBD oil. Text messaging has stricter federal regulations than email marketing. While cannabis consumption may be legal in the area you reside, you cannot use SiteMesh SMS service to promote such business. Using SiteMesh SMS to send content that is overtly sexual in nature is also prohibited. Failure to comply with this standard will result in your SMS service being cancelled.
Upon request, you shall provide reasonable proof of compliance with the provisions set forth in this Section and will provide reasonable cooperation with our investigation into your compliance with the Text Messaging Rules. If we get any complaints regarding your use of SiteMesh SMS, or if we determine you are not complying with these Terms or applicable law, we may, without prior notice, limit or stop providing Services or SiteMesh SMS to you or to Users generally.
We may, without prior notice: (i) change SiteMesh; (ii) stop providing SiteMesh or features of SiteMesh, to you or to Users generally; or (iii) create usage limits for SiteMesh. We may permanently or temporarily terminate or suspend your access to SiteMesh without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
Some areas of SiteMesh allow Users to submit, provide, or otherwise make available content such as marketing materials, videos, images, music, text, comments, questions, and other content or information (any such materials a User submits, provides, or otherwise makes available on SiteMesh is referred to as “User Content”).
We claim no ownership rights over User Content created by you. The User Content you create remains yours.
For the purposes of this Agreement, “Intellectual Property Rights” means any and all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
SiteMesh LLC takes no responsibility and assumes no liability for any User Content that you or any other User submits, provides or otherwise makes available over SiteMesh. You shall be solely responsible for your User Content and the consequences of submitting it, providing it, or otherwise making it available on SiteMesh, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
As part of SiteMesh, we may allow you to submit, store and access and we may collect certain Personal Data (as defined below), business data and other information related to your current and potential Customers, including (without limitation) subscriber lists and personalized email content (collectively, “Customer Data”).
By submitting Customer Data to SiteMesh LLC, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the Customer Data required for SiteMesh LLC and its subcontractors and service providers to provide SiteMesh. SiteMesh LLC shall have no right to sublicense or resell Customer Data, except however, that you agree that SiteMesh LLC may collect, analyze, and use data derived from Customer Data (including without limitation Personal Data) and/or information collected from or about an individual but which does not identify the individual personally for purposes of operating, analyzing, improving, or marketing SiteMesh and any related services. If SiteMesh LLC shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Customer Data, such data will be aggregated or anonymized such that a specific individual is no longer identifiable. You further agree that SiteMesh LLC will have the right, both during and after the term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data. You may request that SiteMesh LLC delete Customer Data at any time, but agree that SiteMesh LLC will have no obligation to delete information or data which is de-identified and does not reasonably identify any individual or you.
In the event that Customer Data is disclosed to or accessed by an unauthorized party, SiteMesh LLC will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Customer Data, we will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident. If such incident triggers any third-party notice requirements, you (not SiteMesh LLC) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. You (not SiteMesh LLC) bear sole responsibility for adequate security, protection and backup of Customer Data when in your or your representatives' or agents' possession or control. We are not responsible, and you are fully responsible, for what your authorized Users do with Customer Data.
SiteMesh LLC will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up your Customer Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your Customer Data.
You own all right, title and interest (including all Intellectual Property Rights) in and to Customer Data.
Except for your User Content, SiteMesh and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “SiteMesh LLC Content”), and all Intellectual Property Rights related thereto, are the exclusive property of SiteMesh LLC and its licensors (including other Users who post User Content to SiteMesh). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any SiteMesh LLC Content. Use of the SiteMesh LLC Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about SiteMesh, including without limitation about how to improve SiteMesh or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place SiteMesh LLC under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, SiteMesh LLC does not waive any rights to use similar or related ideas previously known to SiteMesh LLC, or developed by its employees, or obtained from sources other than you.
We will charge you fees (Fees) for your use of SiteMesh. You agree to pay any and all Fees specified in an ordering document or online order for your access and use of SiteMesh (“Ordering Document”). Your Fees are based on the number of Customers you identify for our marketing services and the number of emails you send to Customers. For the most current information about our pricing and payment, please review our Pricing and Payment Terms, which are incorporated by reference herein. SiteMesh LLC may add new services for additional fees and charges, and add or amend fees and charges for existing services, at any time in its sole discretion. If we add or amend our Fees, we will update our Pricing and Payment Terms. Any change to our Pricing and Payment Terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement; provided however that if we have offered a specific duration and Fees for your use of SiteMesh, we agree that the Fees will remain in force for that duration.
Unless otherwise provided in an Ordering Document any purchases for access and use of SiteMesh are on an automatically renewing subscription basis. YOUR SITEMESH SUBSCRIPTION WILL COMMENCE UPON THE EFFECTIVE DATE OF THE ORDERING DOCUMENT AND WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR ORDERING DOCUMENT FOR SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR SITEMESH SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 7.4 OF THIS AGREEMENT. When you purchase SiteMesh, you expressly acknowledge and agree that: (1) SiteMesh LLC is authorized to charge you at the beginning of each Subscription Term the Fees identified in an Ordering Document, any applicable taxes, and any other charges you may incur in connection with your use of SiteMesh, subject to automatic adjustment as described in Section 7.3 of this Agreement, for as long as your subscription continues; and (2) your subscription is continuous until you cancel it or SiteMesh is suspended, discontinued or terminated in accordance with this Agreement. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in your subscription plan, changes in applicable taxes, and changes in Fees in accordance with Sections 7.1 and 7.3 and you authorize us to charge your payment method for the changed amounts.
Fees are assessed according to a tier system based on the number of Customers or the amount of emails to be sent to Customers. For the initial Subscription Term, you agree to pay the Fees for the tier you identify in an Ordering Document. For subsequent Subscription Terms, in the event that the actual number of Customers or emails sent to Customers in a Subscription Term exceeds the number of Customers or emails sent to Customers in the previous Subscription Term, your Fees will automatically be increased to the corresponding higher tier and you will be charged the increased Fees for the subsequent Subscription Term. For subsequent Subscription Terms, in the event that the actual number of Customers or emails sent to Customers decreases in the subsequent Subscription Term, then we may automatically reduce your Fees to the corresponding lower tier for the subsequent Subscription Term.
You may cancel your SiteMesh Account and/or the SiteMesh services at any time, and you will continue to have access to your SiteMesh Account and the SiteMesh services through the end of your billing period; however, there are no refunds for cancellation. If you cancel your SiteMesh Account, your SiteMesh Account and the SiteMesh services will automatically terminate at the end of your current Subscription Term. To cancel the SiteMesh services, you must notify us at least three (3) business days before the start of the next Subscription Term using the appropriate functionalities of SiteMesh or by emailing firstname.lastname@example.org. In the event that SiteMesh LLC suspends or terminates your SiteMesh Account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of SiteMesh, any content or data associated with your SiteMesh Account, or for anything else. To the extent there is a conflict or inconsistency between this Section and separate terms and conditions between you and SiteMesh with respect to any refunds, downgrades, term length and pricing, such separate terms and conditions shall control.
We or our third-party payment processors will charge your Fees and any other charges you may incur to the payment method you provide when you register for a SiteMesh Account or you identify in an Ordering Document. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with SiteMesh must be accurate, complete, and current. You may change your payment method by changing the information in your SiteMesh Account. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with SiteMesh at the prices in effect when such charges are incurred. If we are unsuccessful in charging your payment method and have still not received payment within seven (7) days after informing you, we may (without liability to you) suspend or temporarily disable all or part of your access to SiteMesh and we shall be under no obligation to provide any or all of SiteMesh while the Fees concerned remain unpaid. This does not affect any other rights and remedies available to us. You will pay any and all applicable taxes, if any, relating to any such payments of Fees, purchases, transactions or other monetary transactions.
SiteMesh LLC uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Since we respect artist and content owner rights, it is SiteMesh LLC's policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via SiteMesh, please notify SiteMesh LLC's copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following email@example.com
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys' fees.
Please note that this procedure is exclusively for notifying SiteMesh LLC and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with SiteMesh LLC's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, SiteMesh LLC has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. SiteMesh LLC may also at its sole discretion limit access to SiteMesh and/or terminate the SiteMesh Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You agree to defend, indemnify and hold harmless SiteMesh LLC and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (a) your use of and access to SiteMesh, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your SiteMesh Account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party's access and use of SiteMesh with your unique username, password or other appropriate security code.
SiteMesh is provided on an “as is” and “as available” basis. Use of SiteMesh is at your own risk. To the maximum extent permitted by applicable law, SiteMesh is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from SiteMesh LLC or through SiteMesh will create any warranty not expressly stated herein. Without limiting the foregoing, SiteMesh LLC, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that SiteMesh will meet your requirements; that SiteMesh will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that SiteMesh is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of SiteMesh is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of SiteMesh.
Further, SiteMesh LLC does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through SiteMesh or any hyperlinked website or service, and SiteMesh LLC will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
To the maximum extent permitted by applicable law, in no event shall SiteMesh LLC, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, SiteMesh. Under no circumstances will SiteMesh LLC be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of SiteMesh or your account or the information contained therein.
To the maximum extent permitted by applicable law, SiteMesh LLC assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from SiteMesh; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through SiteMesh; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall SiteMesh LLC, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to SiteMesh LLC hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if SiteMesh LLC has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
You agree that: (i) SiteMesh shall be deemed solely based in Minnesota; and (ii) SiteMesh shall be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Minnesota. This Agreement shall be governed by the internal substantive laws of the State of Minnesota, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Minneapolis, Minnesota for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Minneapolis, Minnesota is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from SiteMesh LLC. For any dispute with SiteMesh LLC, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that SiteMesh LLC has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Minneapolis, Minnesota, unless you and SiteMesh LLC agree otherwise. If you are using SiteMesh for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. If you are an individual using SiteMesh for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing SiteMesh LLC from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
With respect to all persons and entities, regardless of whether they have obtained or used SiteMesh for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person's Claims. You agree that, by entering into this Agreement, you and SiteMesh LLC are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
You and SiteMesh LLC agree that any cause of action arising out of or related to SiteMesh and/or your use thereof must commence must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SiteMesh LLC without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
SiteMesh LLC may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by SiteMesh LLC in our sole discretion. SiteMesh LLC reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. SiteMesh LLC is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. SiteMesh LLC may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of SiteMesh after any such change constitutes your acceptance of the new Terms and Conditions. If you do not agree to any of these terms or any future Terms and Conditions, do not use or access (or continue to access) SiteMesh.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and SiteMesh LLC's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at email@example.com with any questions regarding this Agreement.
The provider of services is SiteMesh LLC, Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
This Agreement, together with any amendments and any additional agreements you may enter into with SiteMesh LLC in connection with SiteMesh, shall constitute the entire agreement between you and SiteMesh LLC concerning SiteMesh. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.