Welcome to the UploadYourBusiness.com web site, which is located at UploadYourBusiness.com (the "Web Site"). The following Terms of Service ("TOS") contain the terms and conditions that govern your use of the Web Site and UploadYourBusiness.com Service (as defined below). These TOS describe your rights and responsibilities and what you can expect from the UploadYourBusiness.com Service. Use of the UploadYourBusiness.com Web Site constitutes acceptance of these TOS. UploadYourBusiness.com reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement on the UploadYourBusiness.com Web Site. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the Web Site and the UploadYourBusiness.com Service. Your continued use of the UploadYourBusiness.com Web Site following posting of a change notice or new TOS on the UploadYourBusiness.com Web Site will constitute binding acceptance of the changes. 1. The UploadYourBusiness.com Service. UploadYourBusiness.com provides a number of Internet-based services through the Web Site (all such services, collectively, the "UploadYourBusiness.com Service"). One such service enables users to create customized online shop fronts to sell products for their individual businesses.. UploadYourBusiness.com customers. UploadYourBusiness.com may offer a number of other services on its Web Site, such as message boards, contests, and newsletters, which may change from time to time. 2. Use of the Web Site and UploadYourBusiness.com Service. 2.1 Eligibility. UploadYourBusiness.com will only knowingly provide the UploadYourBusiness.com Service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the UploadYourBusiness.com Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The UploadYourBusiness.com Service is not intended for children under the age of 13. 2.2 Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the UploadYourBusiness.com Service and the Web Site. 2.3 Your License to Use the Web Site and the UploadYourBusiness.com Service. (a) UploadYourBusiness.com solely and exclusively owns all intellectual property and other rights, title and interest in and to the UploadYourBusiness.com Service and Web Site, except as expressly provided for in these TOS. You will not acquire any right, title or interest therein under these TOS or otherwise. (b) UploadYourBusiness.com grants you a limited revocable license to access and use the Web Site and the UploadYourBusiness.com Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Web Site for purposes prohibited by UploadYourBusiness.com; to compete with UploadYourBusiness.com; create derivative works based on the content of the Web Site; or download or copy the Web Site (other than page caching). If you use the Web Site in a manner that exceeds the scope of this license or breach this TOS, UploadYourBusiness.com may revoke the license granted to you. (c) This Section 2.3 does not pertain to your intellectual property rights. For information regarding your intellectual property rights, please see Section 4.3. 2.4 Third-Party Services. UploadYourBusiness.com may use third parties to provide certain services accessible through the Web Site. UploadYourBusiness.com does not control those third parties or their services, and you agree that UploadYourBusiness.com will not be liable to you in any way for your use of such services. These third parties may have their own Terms of Service and other policies. You must comply with such terms and policies as well as these TOS when you use these services. If any such terms or policies conflict with UploadYourBusiness.com's TOS, agreements or policies, you must comply with UploadYourBusiness.com's TOS, agreements or policies, as applicable. 3. General Rules. 3.1 Prohibited Use. You may only use the UploadYourBusiness.com Service as expressly permitted by UploadYourBusiness.com. You may not cause harm to the Web Site or the UploadYourBusiness.com Service. Specifically, but not by way of limitation, you may not: (i) interfere with the UploadYourBusiness.com Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the UploadYourBusiness.com Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Web Site, except in the operation or use of an internet "search engine", hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the UploadYourBusiness.com Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain UploadYourBusiness.com's name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the UploadYourBusiness.com Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by these TOS. 3.2 Privacy Policy. By entering into these TOS, you agree to UploadYourBusiness.com's collection, use and disclosure of your personal information in accordance with the Privacy Policy. 3.3 Ordering Policies. If you purchase Products, you agree to do so in accordance with UploadYourBusiness.com's Ordering Policy and Bulk Order Policy. 4. Create and Buy General Rules and License. 4.1 Description. As part of the UploadYourBusiness.com Service, UploadYourBusiness.com offers a service (the "Create & Buy Service") that allows you to upload images, video, audio, data, and other content (collectively, "Content") to the Web Site to create, produce and purchase Products featuring the uploaded Content for your own use. 4.2 Delivery of Content. You will upload or deliver to UploadYourBusiness.com all Content that you want to use with the Create & Buy Service in accordance with the applicable instructions on the Web Site and the Content Usage Policy. UploadYourBusiness.com may, in its sole and exclusive discretion, determine whether any Content complies with such instructions and is satisfactory for use with the Create & Buy Service. 4.3 Licensing Your Content to UploadYourBusiness.com. You will retain ownership of the Content that you upload to the Web Site. You hereby grant to UploadYourBusiness.com a royalty-free, worldwide, transferable, nonexclusive, right and license to use such Content, in all media existing now or created in the future, as UploadYourBusiness.com deems necessary to enable you to use the Create & Buy Service to create, produce and purchase Products for so long as your Content remains uploaded to the Web Site. UploadYourBusiness.com may sublicense the rights that you grant it in this Section to a third party subcontractor only for purposes of producing your Products and providing the UploadYourBusiness.com Service. 5. Reservation of Rights. 5.1 Monitoring. UploadYourBusiness.com reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Web Site. If UploadYourBusiness.com determines, in its sole and absolute discretion, that you or another UploadYourBusiness.com user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, UploadYourBusiness.com may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party. 5.2 Modification of the Service. UploadYourBusiness.com may modify the UploadYourBusiness.com Service at any time with or without notice to you, and will incur no liability for doing so. 6. Submissions. When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant UploadYourBusiness.com permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that UploadYourBusiness.com will have no obligation to keep any Submissions confidential. You will not bring a claim against UploadYourBusiness.com based on "moral rights" or the likes arising from UploadYourBusiness.com's use of a Submission. This Section does not apply to your Content that you use in connection with the Create & Buy Service or Shopkeeper Service. 7. Representations and Warranties. 7.1 Mutual Representations and Warranties. You represent and warrant to UploadYourBusiness.com and UploadYourBusiness.com represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions. 7.2 By You. You represent and warrant to UploadYourBusiness.com that, in your use of the UploadYourBusiness.com Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to UploadYourBusiness.com that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) UploadYourBusiness.com will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that UploadYourBusiness.com incurs in providing the UploadYourBusiness.com Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware. 8a. Disclaimers and Exclusions. 8a.1 DISCLAIMER OF WARRANTIES. UPLOADYOURBUSINESS.COM PROVIDES THE WEB SITE AND UPLOADYOURBUSINESS.COM SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. UPLOADYOURBUSINESS.COM DOES NOT REPRESENT OR WARRANT THAT THE WEB SITE, UPLOADYOURBUSINESS.COM SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. UPLOADYOURBUSINESS.COM MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. 8a.2 EXCLUSION OF DAMAGES. UPLOADYOURBUSINESS.COM WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE UPLOADYOURBUSINESS.COM SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8b. Limitation of Liability. 8b.1 LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID BY UPLOADYOURBUSINESS.COM TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100. 9. Indemnification. You must indemnify and hold UploadYourBusiness.com and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS through any act or omission. If you have to indemnify UploadYourBusiness.com under this Section, UploadYourBusiness.com will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without UploadYourBusiness.com's express written permission. 10. Termination. 10.1 Termination. UploadYourBusiness.com may suspend or terminate your use of the Web Site or UploadYourBusiness.com Service if it believes, in its sole and absolute discretion, that you have breached a term of these TOS. 10.2 Survival. Notwithstanding Section 10.1 above, these TOS will survive indefinitely unless and until UploadYourBusiness.com chooses to terminate them. 10.3 Effect of Termination. If you or UploadYourBusiness.com terminates your use of the Web Site or the UploadYourBusiness.com Service, UploadYourBusiness.com may delete any Content or other materials relating to your use of the UploadYourBusiness.com Service on UploadYourBusiness.com's servers or otherwise in its possession and UploadYourBusiness.com will have no liability to you or any third party for doing so. 11. Notice. All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to UploadYourBusiness.com, you must use the following addresses: 950 Tower Lane, Suite 600, Foster City, CA 94404, TOS@UploadYourBusiness.com. If UploadYourBusiness.com provides notice to you, UploadYourBusiness.com will use the contact information provided by you to UploadYourBusiness.com. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement. 12. Dispute Resolution. All disputes arising out of, relating to or connected with these TOS or your use of any part of the UploadYourBusiness.com Service will be exclusively resolved under confidential binding arbitration held in Santa Clara County, California before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying California law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these TOS will be joined to an arbitration involving any other party subject to these TOS, whether through class arbitration proceedings or otherwise. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Santa Clara County, California. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in Santa Clara County. By entering into these TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claim arising out of, relating to or connected with these TOS or your use of any part of the UploadYourBusiness.com Service must be asserted individually. Notwithstanding anything to the contrary in this Section 12, UploadYourBusiness.com may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction. 13. Miscellaneous. These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of UploadYourBusiness.com. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and UploadYourBusiness.com are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.
