The use of services provided by The Constant Company, LLC (hereafter referred to as “sharehabor”) is subject to the following Terms and Conditions.
Party Definitions and Introductory Terms – The operative parties referred to in this Agreement are defined as follows:
sharehabor is the publisher and operator of www.sharehabor.com (the “Site”) whereby sharehabor makes certain services available.
When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to sharehabor. Additionally, when the terms “the Site” or “Site” are used, these terms refer to any site published by Us, unless a site is specifically exempt from this policy.
You, the Client – As Our Client and the user of the Site or Services, this Agreement will refer to You through any second-person pronouns, such as “Your,” “Yours,” etc.
PLEASE READ THE FOLLOWING SERVICES TERMS AND CONDITIONS. BY SUBSCRIBING TO sharehabor’S SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (the “AGREEMENT”). IF YOU AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I ACCEPT,” (OR SIMILAR SYNTAX) OR CHECK THE APPROPRIATE BOX MANIFESTING YOUR INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE ACCOUNT SET-UP PROCESS. YOU SHOULD PRINT-OUT OR OTHERWISE SAVE A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “BACK” BUTTON ON YOUR BROWSER AND DO NOT SUBSCRIBE TO sharehabor’S SERVICES. sharehabor AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT IS PERMITTED BY THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (E-SIGN ACT) AND SIMILAR FEDERAL AND STATE LAWS. ANY USE OF sharehabor’S SERVICES SHALL CONSTITUTE AN ACT OF ACCEPTANCE OF THE CURRENT HOSTING SERVICES TERMS AND CONDITIONS.
Our Acceptable Use Policy (//www.sharehabor.com/legal/use_policy/)
1.1 At the time of initial registration, You will select from the list of available Services the service plan(s) to which You wish to subscribe. All subscriptions to Services are subject to formal acceptance by sharehabor. Your subscription to the Services will be deemed accepted by sharehabor when sharehabor delivers a confirmation of the subscription to You. sharehabor reserves the right to refuse to provide You with any Service for any reason. Notwithstanding Our Uptime Guarantee found in this Agreement, sharehabor also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional Services at any time, provided that You agree to pay the then-current fees for such additional Services. All additional Services shall be considered “Services” hereunder. All Services provided are subject to availability and to all of the terms and conditions of this Agreement.
2. REVISIONS TO USER AGREEMENT
This Agreement contains the complete and entire terms and conditions that apply to Your use of sharehabor’s Services (as defined below). sharehabor may modify the terms of this Agreement, including the Fees at any time.
2.1 From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect.
ent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
2.2 We agree that if We change anything in this Agreement, We will change the “last modified date” at the top of this Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since th
e last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed.
2.3 Should You wish to terminate this Agreement due to any revisions made by Us, You must do so in writing via the cancellation form within thirty (30) days of the “last modified” date described above. Your continued use of the Services after the effective date of any such notice constitutes Your acceptance of such changes.
2.4 Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
3. DURATION OF AGREEMENT AND CANCELLATION POLICY
3.1 The Initial Term shall begin upon confirmation of Your order or commencement of the Services to You and receipt of lawful funds. The term’s length is chosen by You and shall be indicated when You order Our Services. This Agreement may not be terminated by You during the Initial Term (and any renewals thereof) except in the event of a breach by sharehabor. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.
3.2 sharehabor may also terminate this Agreement in its sole discretion at any time for any reason or no reason. (“Termination without Cause”). In such case, sharehabor will provide You with thirty (30) days written notice before the discontinuation of Services.
3.3 If sharehabor cancels this Agreement pursuant to any of the terms outlined in this Agreement, with the exception of Termination without Cause pursuant to paragraph 3.2, sharehabor shall not refund to You any fees paid or prepaid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that sharehabor terminates the Agreement for cause, all prepaid hosting fees will be forfeited and are not refundable. The termination of this Agreement does not relieve You of Your obligation to pay any Fees accrued or payable to sharehabor.com prior to the effective date of termination of this Agreement.
4. ACCOUNT SET UP
4.1 When You register for the Services, You will choose a login (email) and password. You may use the Services or modify Your data and content only through such user ID and password. You are entirely responsible for maintaining the confidentiality of Your user ID and password and for any and all activities which occur using those credentials. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of security known to You.
4.2 You must provide Us with a primary email address that is checked regularly and frequently. All notices and communications between Us will be sent to the email address You provide, and You are therefore required to keep this address current or notify Us if Your address changes. You should notify Us if any of Your contact and/or billing information changes so that We may update Your account. It is also Your responsibility to make sure that Our domain(s), sharehabor.com, are not included in any spam block list used by You or Your mail provider.
4.3 Providing false or inaccurate contact information of any kind may result in the Termination for Cause of Your account per Section 3 of this Agreement.
4.4 You are responsible for all activity transpiring under Your account.
5. INTELLECTUAL PROPERTY RIGHTS
All Services provided by sharehabor may only be used for lawful purposes.
5.1 As between You and sharehabor, sharehabor acknowledges that it claims proprietary rights in or to the content
5.2 In connection with performance of the Services and at the sole discretion of sharehabor, sharehabor may (but is not obligated to) provide You with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by sharehabor or its suppliers under this Agreement, and other know-how, methodologies, equipment, and processes used by sharehabor to provide You with the Services
5.3 This Agreement does not constitute a license to use sharehabor’s trade names, service marks or any other trade insignia. Any use of any of sharehabor’s trade names, service marks or any other trade insignia is strictly prohibited, absent sharehabor’s prior written consent.
5.4 You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that
may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
sharehabor reserves the right to modify, alter or add to the policy set forth in above, and all users should regularly check back regularly to stay current on any such changes.
6. ZERO TOLERANCE SPAM POLICY
6.1 You agree to comply with sharehabor’s Anti-Spam Policy and which is hereby incorporated by reference as an indispensable part of this Agreement. Use of sharehabor’s services for any illegal spam activities is strictly prohibited.
6.2 sharehabor reserves the right to modify the Anti-Spam Policy at any time by posting the modified policy on its web Site. You agree to monitor sharehabor’s home page for any changes to the Anti-Spam Policy. Your continued use of the Services after the effective date of any changes to the Anti-Spam Policy constitutes Your manifestation of intent to be bound by such changes.
7.1 Payment for Services is due in advance of the time period for which such payment covers. Services are billed on an automatic and recurring basis unless and until you follow sharehabor’s cancellation procedure set forth in this Agreement.
7.2 Unless separately negotiated by You and Us, and confirmed by separate written agreement, the initial and recurring Fees for the Services selected by You shall be as provided in the initial on-line order form. All set-up fees and special programming fees are non-refundable. Fees for Services are payable in advance. Failure to make payment of Fees for Services when due may result in the suspension or termination of Services.
7.3 At the time of registration, You must select a payment method. sharehabor reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing.
7.4 You agree to pay any and all taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. sharehabor is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. If sharehabor should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, sharehabor will invoice You for the difference between payment received and the Fees due.
7.5 You also agree to pay all attorney and collection fees arising from sharehabor’s efforts to collect any past due Fees. If you cancel any Service prior to the expiration of the pre-paid Fees, You understand and agree that sharehabor will not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees.
7.6 Coupons and Discount Codes – From time to time, sharehabor may offer coupons or other discount codes which may be used when signing up for hosting with Us. Coupons and discount codes are for first-time customers of sharehabor and must be used at the time of Your initial purchase with Us – they may not be applied after Your service with Us has already been initiated. Unless expressly provided, such coupons and discount codes may not be used toward upgrades to Your account. Any account We deem to be attempting unauthorized coupon or discount code use may be subject to Termination for Cause.
8. RESOURCE USAGE & SECURITY
8.1 sharehabor does not impose hard set limits on each account’s system resources. We do not actively disable accounts until they greatly exceed an acceptable level of usage. There are numerous activities that could cause such problems; these in
clude: CGI scripts, FTP, PHP, HTTP, etc. sharehabor will advise You of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.
8.2 Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from the Site and/or Materials. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage Our Services and Site or any communications on it. If You do not adhere to this provision of this Agreement, in addition to monetary damages and other remedies available to sharehabor, You hereby agree to pay liquidated damages of $500.00 plus any and all fees associated with recovery of these damages, including attorneys’ fees and costs.
8.3 SECURITY Any violation of the security to the Site and/or Services is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers used to provide the Site, Services, and/or Materials is strictly prohibited and is a violation of this Agreement and the A
UP. You agree not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware and software, compromising the Servers, or for any other unauthorized use commonly known as “hacking.” In addition, You are prohibited from the following:
In the event You are involved in any violation of system security, We reserve the right to release information about You to system administrators at other sites in order to assist in resolving security incidents, and We shall also cooperate with any law enforcement agency investigating a criminal violation of system or network security. Additionally, any violation of these security provisions may, at Our sole discretion, be grounds for Termination for Cause of Your account per Section 3 of this Agreement.
9. UPTIME GUARANTEE
9.1 sharehabor will offer You a Service Level Agreement (“SLA”) guaranteeing certain availability of Our Services. If applicable, the terms of any such SLA were separately negotiated between You and Us, and such SLA, if any, is hereby incorporated by reference as an indispensable part of this Agreement.
To be eligible for any credits to Your account, You must follow the specific procedures set forth in the SLA for notifying Us of Your desire for credits. You understand and agree that the failure to follow the procedure in the SLA within three (3) days of the triggering event will result in Your waiver of any right to receive cr
10. PRICE CHANGE
We reserve the right to change prices listed on sharehabor.com at any time, without notice, and the right to modify the amount of resources given to plans at any time. Additionally, if we terminate this agreement without cause pursuant to paragraph 3.2 of the Agreement, You understand that if We agree to provide Services to You in the future, the amount You paid under any prior term or time period is not determinative of the amount You pay should We provide Services to You again. It is Your responsibility to check Our website for plan or price changes should You wish to take advantage of plan or price changes which may have occurred. sharehabor does not automatically update Your plan. All upgrades or downgrades will be performed at Your request and may include modification fees or require reinitiating service with Us.
You agree to defend, indemnify, and hold sharehabor and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach of Your covenants under this Agreement; (b) Your use of the Services; (c) any defamatory, libelous or illegal material contained within Your Content or Your information and data; (d) any claim or contention that Your Content or Your information and data infringes any third party’s patent, copyright or other intellectual property rights or violates any third party’s rights of privacy or publicity; (e) any third party’s access or use of Your Content or Your information and data; (f) any violation of the applicable Acceptable Use Policy. In the event of a claim under this section, sharehabor shall be permitted to select legal counsel to provide a defense to such claim. sharehabor reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from You, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of sharehabor, which shall not be unreasonably withheld.
12. NO WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. sharehabor EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. sharehabor MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES sharehabor MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ANY STATEMENTS MADE REGARDING SUCH MATTERS IN PROMOTIONAL MATERIALS SHALL BE CONSIDERED ADVERTISING REFERENCES, AND NOT WARRANTIES. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
13. GENERAL PROVISIONS
13.1. Jurisdiction, Venue, and Choice of Law. This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of tState of Colorado, excluding its conflict of law provisions. The parties hereby submit to the personal jurisdiction of the state and federal courts of Orange County, Florida in the event litigation permitted under this Agreement is initiated. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Orange County, Florida.
The parties agree that this choice of venue, jurisdiction, and forum as set out in the following parts of this Agreement is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in jurisdiction other than that specified in this Section.
All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
13.2. Arbitration. If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party shall submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Orange County, Florida and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees. Each party shall bear its own attorneys’ fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall be willing to execute an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
13.3. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by You.
13.4. Severability. If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
13.5. No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no wa
iver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
13.6. Complete Agreement. This Agreement (including all other policies incorporated herein) constitutes the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
13.7. Relationship Between the Parties. sharehabor is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
13.8. Force Majeure. sharehabor shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay sharehabor’s performance.
13.9. Notices Electronic Communications. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided by You and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of the parties may communicate with the other by electronic means as described in this Agreement. Each of the parties agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communicati
on, is legally sufficient to verify the sender’s identity and the communication’s authenticity; (ii) An electronic communication sent by You containing Your user identification establishes You as its originator and has the same effect as a document with Your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.