HEAVY BUBBLE, LTD. GENERAL TERMS AND CONDITIONS OF USE
Heavy Bubble, Ltd. (“Heavy Bubble”) offers web hosting services for artists to easily display their artwork on their own website by simply selecting a design format and uploading images of their artwork (the “Services”).
Definitions of certain capitalized terms used throughout this Agreement and not otherwise defined herein can be found at the end of this Agreement.
Acceptance of Terms
BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING THE SERVICES OFFERED BY HEAVY BUBBLE AND/OR BY CLICKING THE “I AGREE” CHECKBOX DURING THE SIGN UP PROCESS, YOU AGREE TO BE BOUND BY THE TERMS OF THESE TERMS AND CONDITIONS. THESE TERMS &CONDITIONS SUPERSEDE ALL EARLIER VERSIONS. Please read these terms and conditions carefully, as they describe your legal rights and obligations and form a binding contract between you and Heavy Bubble. These Terms and Conditions shall become come effective as of the date of (1) clicking the “I agree” checkbox acknowledging your acceptance of these Terms and Conditions, (2) the activation of your Heavy Bubble account, or (3) your receipt of an e-mail from Heavy Bubble confirming activation of your account, whichever occurs first.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OR ANY MODIFICATION HERETO, DO NOT CLICK THE “I AGREE” CHECKBOX, IMMEDIATELY CEASE USING THE SERVICES, AND CONTACT HEAVY BUBBLE IMMEDIATELY ABOUT TERMINATING YOUR ACCOUNT.
Description of Services
When you sign up with Heavy Bubble, choose a level of Service, and provide us with your name and contact information and a valid PayPal account for billing, Heavy Bubble will provide you with an account and instructions. You are responsible for keeping your contact and billing information up to date and promptly proving Heavy Bubble with any changes to such information. It is also your responsibility to keep your account information, including any user names and passwords, confidential. You agree to immediately notify Heavy Bubble of any unauthorized use of your account or other breach of security. Heavy Bubble cannot and will not be liable for any loss or damage you may suffer as a result of your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Heavy Bubble be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. Your use of the Services are subject to the following conditions and restrictions:
Heavy Bubble shall provide to you a non-transferable, revocable, non-sublicensable, non-exclusive and limited license to use the amount of Web Site Space allocated to you for your non-exclusive use for the exclusive purpose of storing Your Data and disseminating Your Date via the Internet through the use of the Services for purposes consistent with these Terms and Conditions and in accordance with the level of Service you have selected.
Heavy Bubble, either directly or through its assignee or licensee, shall provide certain customer service and technical support as part of the Services. Such customer services may consist of replying to customer questions or complaints related to the Services, and technical support may consist of resolving technical problems encountered with the Services. Heavy Bubble is not required to provide any customer service or technical support except as expressly provided in these Terms and Conditions. Any and all requests for additional customer service or technical support may be refused by Heavy Bubble with or without reason. Any additional customer service or technical support which Heavy Bubble may subsequently agree to provide to you shall be at Heavy Bubble’s sole discretion and once commenced, may be terminated at any time by Heavy Bubble without notice to you and without any liability to Heavy Bubble. Notwithstanding the foregoing, Heavy Bubble may at any time in its discretion alter or cease providing the customer service and/or technical support that it has agreed to provide to you relating to the Services without any liability to Heavy Bubble.
Unless provided otherwise in the specifications for your Services, bandwidth use (i.e. the rate of data transmission in bits per second), including but not limited to data retrieval from your web site, traffic, and downloads, shall not exceed 3 gigabytes per month. This amount may change at any time from time to time depending on the number of customers and other factors. You are responsible for monitoring your bandwidth use to ensure compliance with this paragraph.
Any or all of the Services may not be available to persons outside the United States. Heavy Bubble reserves the right to alter, amend, or discontinue the provision of some or all of the Services to customers outside the United States at any time in Heavy Bubble’s discretion.
INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED IN THE UNITED STATES OF AMERICA. THE PERSONAL INFORMATION WHICH YOU GIVE HEAVY BUBBLE WILL BE TRANSFERRED TO AND MAINTAINED IN THE UNITED STATES AND ELSEWHERE AND WILL BE SUBJECT TO THE LAWS OF THE UNITED STATES. IF YOU DO NOT CONSENT TO THIS TRANSFER, YOU SHOULD NOT ACCEPT THESE TERMS AND CONDITIONS AND YOU SHOULD TERMINATE OR DECLINE SERVICES. INTERNATIONAL CUSTOMERS FURTHER UNDERSTAND AND AGREE THAT HEAVY BUBBLE MAY DISCLOSE PERSONAL INFORMATION ABOUT ITS INTERNATIONAL CUSTOMERS AND THEIR RESPECTIVE WEBSITES OR DOMAIN NAMES AND YOU WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
Heavy Bubble may suspend performance under or terminate this Agreement, cease transmission of data associated with your web site immediately and without notice, permanently remove Your Data, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with any applicable laws if it is informed or otherwise believes, in its sole discretion, that your web site and/or your use of the Services violates any applicable laws or the intellectual property rights of any third party or is otherwise the subject of a dispute. As more completely set forth elsewhere in these Terms and Conditions, you waive any and all clams you may have, now and forever, against Heavy Bubble relating to the content, use, and operation of your web site through the Services and agree to indemnify and hold harmless Heavy Bubble from and against any and all such claims.
You are responsible for backing up Your Data. Heavy Bubble does not perform back up services and does not warrant or otherwise guarantee that Your Data will not be damaged, deleted, lost, corrupted, or unavailable, including without limitation due to termination or suspension of your account. If any of Your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable due to termination or suspension of your account, Heavy Bubble will have no obligation or liability to you. It is therefore strongly recommended that you back up all of Your Data.
Billing and Payment
The PayPal account that you provide to Heavy Bubble upon registering for the Services will be charged automatically in advance of every month for your use of the Services and shall continue to be charged until your account is terminated in accordance with these Terms and Conditions. You may upgrade or downgrade your level of Service at any time. If you chose to upgrade your level of Service, you will be charged the pro-rata amount for the higher Service level and the upgrade will take effect immediately upon such charge. If you chose to downgrade your Services, the downgrade will take effect at the next monthly billing cycle. Accordingly, you will not receive a pro-rata refund for any downgrade.
In the event that Heavy Bubble determines in its sole discretion that the services of an attorney or a collection agency are necessary or appropriate to collect amounts due from you, any and all attorney or collection agency fees and other costs of collection shall be added to any amounts due under by you.
Term and Termination
Unless sooner terminated pursuant to other terms of this Agreement, and except as otherwise provided in this Agreement, this Agreement shall be for an initial term of one month and shall be automatically renewed each month for additional one month periods unless and until sooner terminated pursuant to the provisions of this termination provision. Heavy Bubble may accept prepayment for services to be provided under this Agreement, but such acceptance shall not modify or extend the term of this Agreement.
You or Heavy Bubble may terminate this Agreement at any time for any reason, with or without cause, upon thirty days' written notice.
Heavy Bubble may suspend performance under or terminate this Agreement and cease transmission of data associated with your website immediately and without notice if any of the following events occur: (a) Heavy Bubble, in its sole discretion, deems that you have breached any part of these Terms and Conditions, including, without limitation, any warranty, representation, obligation, or restriction of use set forth herein; (b) your PayPal account on file with Heavy Bubble is rejected or you otherwise fail to make payment when due; (c) circumstances or occurrences beyond Heavy Bubble’s reasonable control render it impossible, difficult, or unreasonable to render the Services to you.
Heavy Bubble reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice, for maintenance purposes or otherwise. You agree that Heavy Bubble shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
You further agree that in the event that Heavy Bubble believes, in its sole discretion, that you have breached any of the warranties, representations, obligations, or restrictions of use contained herein, Heavy Bubble may, without any liability or notice to you, and in addition to any other remedies, erase and/or purge any of Your Data from Heavy Bubble’s web server equipment. without prior notice to you.
Upon termination, you will no longer have access to your account. Upon termination, Your Data may be deleted. Heavy Bubble accepts no liability for deletion of Your Data.
NO WARRANTIES BY HEAVY BUBBLE
THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. HEAVY BUBBLE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES HEAVY BUBBLE MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. NO WARRANTY IS MADE BY HEAVY BUBBLE REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND HEAVY BUBBLE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES PROVIDED TO YOU HEREUNDER; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HEAVY BUBBLE DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON'S OR ENTITY'S WEB SITE OR WEB PAGE THROUGH THE USE OF THE HEAVY BUBBLE SERVICES.
HEAVY BUBBLE’S LIMITED LIABILITY AND YOUR RELEASE
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL HEAVY BUBBLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, HEAVY BUBBLE'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. HEAVY BUBBLE DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE SERVICES, AND HEAVY BUBBLE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE HEAVY BUBBLE FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF HEAVY BUBBLE FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO HEAVY BUBBLE IN THE SIX (6) MONTHS PRECEDING SUCH ALLEGED BREACH.
Your Additional Obligations, Warranties, Representations, and Restrictions on Use
You agree and warrant that the contact and billing information you have provided to Heavy Bubble is complete and accurate, and you further agree to notify Heavy Bubble within ten (10) days of any change to any such information. Contact information includes your full legal name, e-mail address, and mailing address and the name, mailing address, telephone number, facsimile number, and e-mail address of the technical and administrative contacts for your domain. Your billing information includes all information related to your PayPal account necessary for your PayPal account to be automatically charged by Heavy Bubble for your use of the Services.
You agree and warrant that your use of the Services, and all sales and distributions made through your web site, including without limitation of any artwork displayed on your website shall at all times comply with all applicable laws and shall not violate the copyright or any other rights of any third party. You warrant that you are the artist and/or have all right, title, and interest in and to the artworks displayed on your website and that such artworks do not violate the copyright or other rights of any third party.
You agree and warrant that you will neither store on nor allow to be transmitted through the use of the Services any data or other matter which constitutes, contains, or links to child pornography or which involves depictions of sexuality by someone who is or looks younger than eighteen years of age, regardless of their actual age, or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age, or which could otherwise result from or cause harm to minors. You agree that you shall install and maintain appropriate and effective screening devices and/or procedures on your website to avoid access to, or communication of, any harmful matter or indecent communications to minors.
You agree and warrant that Your Data shall not violate any laws concerning obscenity and shall not contain or link to any pornography, or depictions of bestiality, rape, sexual assault, violence, torture or disfigurement, or other content deemed objectionable by Heavy Bubble, in its sole discretion.
You agree and warrant that Your Data shall not constitute or contain or link to material which is harmful, violent, threatening, abusive, hateful, libelous, slanderous, defamatory, or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights. You agree not to collect the personally identifiable data of any person without that person's consent. If you collect this data through your website you shall do so only pursuant to a posted privacy policy disclosing any and all uses of such identifiable data and in compliance with applicable law.
You agree and warrant that Your Data and any and all material(s) of every kind which you transmit using the Services shall at all times be free from any and all damaging software defects, including, but not limited to, software "viruses", "worms", "Trojan Horses," and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to use the Services to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.
You agree and warrant that you shall not use any form of mass unsolicited electronic mail solicitations, news group postings, IRC posting or any other form of "spamming," “phishing,” or "mail bombing," and Heavy Bubble reserves the right to block mail from any source which Heavy Bubble believes, in its sole discretion, is being used to send such unsolicited e-mail, including but not limited to open mail relays. You shall not operate a chat room using the Services. You agree to comply with all rules regarding online conduct and acceptable content.
You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the Services.
You shall at all times use you’re your Web Site Space exclusively as a conventional website. All use of Web Site Space and the Services shall at all times be in a manner consistent with these Terms and Conditions and shall not in any way impair the functioning or operation of Heavy Bubble’s network. Should your use of the Services result in an overly high load on the Heavy Bubble server in Heavy Bubble’s sole discretion, Heavy Bubble may suspend your account until the cause of any such overload is determined and resolved or may terminate your account if Heavy Bubble believes that the situation cannot be satisfactorily resolved.
You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all transactions associated with your use of the Services, including without limitation with respect to any artwork sold through your website, and that no taxing authorities shall have any claim against Heavy Bubble or any persons affiliated therewith for the payment of such taxes. In furtherance of this representation, you agree to fully indemnify Heavy Bubble with respect to any claims made by any taxing authority against Heavy Bubble with respect to any transactions associated with your website and your use of the Services.
You represent and warrant that you are over eighteen years of age (or such other age of majority in places where eighteen years is not the age of majority) and are fully competent to enter into this Agreement and to accept these Terms and Conditions of the Services.
You represent and warrant that you are not a national or resident of any country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the “Entity List” or “Denied Persons List” maintained by the US Department of Commerce or the list of “Specially Designated Nationals and Blocked Persons” maintained by the US Department of Treasury.
You agree to abide by United States and other applicable export control laws and not to transfer or permit the transfer, by electronic transmission or otherwise, any content or materials subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to your Heavy Bubble account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
You agree and warrant that Your Data shall be solely for business, artistic, entertainment, and/or educational purposes and that you shall assume the sole responsibility and duty to ensure that all such data, visual materials, artwork, advertising and other matter shall be transmitted exclusively to willing adults and only to places in which such materials comply with contemporary community standards.
You affirmatively represent, agree and warrant that you have and at all times shall have all necessary intellectual property rights, including, but not limited to, all copyrights, trademark and service mark rights and rights of publicity, both in the United States and throughout the world, to reproduce and disseminate, via the Internet, Your Data and all content displayed on your website or which you otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the Services, prior to and at all times during the time such materials are promoted, advertised, disseminated or distributed through any direct or indirect use of the Services.
You agree that if, in Heavy Bubble's sole and exclusive judgment, Heavy Bubble concludes that your website displays, contains, or links to any harmful matter or indecent materials or communications which are available to, or accessible by, minors, or displays or contains any material that consists of child pornography or which could otherwise result in harm to minors, or contains material that violate any applicable law or any third party’s rights; then Heavy bubble may, without prior notice to you and in Heavy Bubble's sole and exclusive discretion, either remove and erase the material from your web site, and/or disable public access to the material on your web site, and/or terminate your account and the Services, and/or cease hosting your web site, or take any other action it deems appropriate without any liability of any kind to Heavy Bubble from either you or any third party. As more completely set forth elsewhere in these Terms and Conditions, you waive any and all claims you may have, now and forever, against Heavy Bubble relating to any action taken in response to the claim that you have infringed the intellectual property or other rights of a third party, and agree to indemnify and hold harmless Heavy Bubble from and against any such claims.
You further confirm, understand, acknowledge and expressly agree that neither Heavy Bubble, nor any agent or representative of Heavy Bubble, nor any other person is currently representing or otherwise directly or indirectly communicating in any manner herein or otherwise, nor has at any time in the past, represented to you or has otherwise directly or indirectly communicated in any manner to you any guarantee, reassurance or any other communication of any kind regarding the potential profitability, marketability, or likelihood of success of your endeavors through the use of the Services; any increase in sales of or interest in your artwork; or the recoupment of any funds expended in the use of the Services. You expressly acknowledge and agree that the success of any business endeavors which involve your use, in any manner, of the Services pursuant to this Agreement, like any other business endeavor, is subject to numerous factors, such as the effectiveness of its advertising and promotion, your administrative capabilities, the quality of and the demand for your work, etc., and that the ultimate success or failure of your business rests with you and not Heavy Bubble. You further expressly agree not to raise any claim of any kind against Heavy Bubble and to hold Heavy Bubble harmless from any claim of financial investment or other loss to you directly or indirectly resulting from your decision to use the Services.
Confidentiality and Privacy
During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to Heavy Bubble in connection with Heavy Bubble's performance of the Services ("Confidential Information"). You agree to preserve the confidentiality of all Confidential Information that is provided in connection with the Services, and shall not, without the prior written consent of Heavy Bubble, disclose or make available to any person, or use for your own or any other person's benefit any Confidential Information of Heavy Bubble. Heavy Bubble retains all right and title to such Confidential Information.
Heavy Bubble is committed to maintaining the privacy of any data submitted by you to Heavy Bubble. Heavy Bubble will comply with all applicable laws with respect to such data. Heavy Bubble will securely protect all such data, including without limitation, your PayPal account information, from and against theft and other security breaches in accordance with our internal security policy and applicable law. It is Heavy Bubble's policy to not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless Heavy Bubble deems it necessary, in its sole discretion, to: (a) comply with legal process or other legal requirements, including but not limited to responding to civil or criminal subpoenas, search warrants, national security letters, or other requests for information from law enforcement officials; (b) enforce this Agreement; or (c) protect the interests of other Heavy Bubble’s other customers.
NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, HEAVY BUBBLE RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF YOUR ACCOUNT, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THESE TERMS AND CONDITIONS OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
Trademark and Copyright
Heavy Bubble and the Heavy Bubble logo and all other marks displayed on the Heavy Bubble website and in materials distributed by Heavy Bubble are trademarks of Heavy Bubble, Ltd. and the content appearing on the Heavy Bubble material are the copyrighted property of Heavy Bubble, Ltd. All rights reserved. Heavy Bubble retains all rights to such trademarks and copyright materials and nothing in this Agreement grants you or anyone else any right whatsoever to the use of Heavy Bubble’s trademarks or copyright material. You may not use, reproduce, or display any Heavy Bubble trademarks or any content on the Heavy Bubble website without Heavy Bubble's prior written consent. Any and all other trademarks, product names, and company names and logos appearing on Heavy Bubble’s website are the property of their respective owners and are subject to such owners’ use restrictions.
Your Indemnification of Heavy Bubble
You agree that you shall fully defend and indemnify Heavy Bubble, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, and their respective heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in these Terms and Conditions, including, but not limited to, your warranties set forth in this Agreement or your violation of a third party's intellectual property rights. You further agree to defend, indemnify and hold harmless Heavy Bubble, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, and their respective heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that Heavy Bubble shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
No Joint Venture or Partnership
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Heavy Bubble and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Heavy Bubble and you. Heavy Bubble shall have no control or ownership interests of any kind in your business. Heavy Bubble shall have no direct financial or other interest in, nor in any way own any of the artwork displayed on your website. Heavy Bubble’s relationship to you shall be restricted to matters pertaining to the provision of the Services as set forth in this Agreement.
Permission to Promote Your Website
By using the Services, you agree to allow and you grant permission to Heavy Bubble to promote your website, including without limitation by displaying a link to your website and/or images of your website and/or your artwork on the Heavy Bubble website. If you do not want your website and artwork promoted or your images displayed on the Heavy Bubble website, you must notify Heavy Bubble in writing, and Heavy Bubble will endeavor to comply with your request. You further understand that Heavy Bubble is in no way obligated to promote your website or your artwork and it is solely in Heavy Bubble’s discretion to do so and to chose which, if any, customers’ website and artwork it chooses to promote. You agree and acknowledge that you have no control over the manner in which your website and/or artwork is promoted or displayed on the Heavy Bubble website other than to request that it not be.
Services Rendered on a Non-Exclusive Basis
Any and all services that are or may be provided to you by Heavy Bubble pursuant to this Agreement are non-exclusive and nothing in this Agreement shall limit or restrict Heavy Bubble from providing similar services to other customers regardless of whether such other customers are your competitors. Nothing in this Agreement shall limit or restrict Heavy Bubble or any of its officers, directors, employees, or shareholders from engaging in any activities similar to yours or in competition with you.
No Editorial Control by Heavy Bubble
In reliance on your express warranties regarding Your Data, Heavy Bubble shall neither have nor exert any editorial or other subjective control over the substantive content of Your Data. Heavy Bubble cannot be held responsible for the content of website. You are solely responsible for the content of your website.
Severability
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
No Waiver
Failure of Heavy Bubble at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of Heavy Bubble.
Notices
Heavy Bubble may provide notice to you via e-mail sent to the e-mail address provided by you upon registration or as subsequently provided by you to Heavy Bubble. Such notice is deemed effective whether you receive it or not and shall be deemed written notice for the purposes of this Agreement.
You may provide notice to Heavy Bubble in one of the following ways: (a) by addressing the notice as indicated below and depositing the same by registered or certified mail, postage prepaid, in the United States mail, to the address listed below; (b) by Federal Express to the address listed below; or (c) by e-mail to payments@heavybubble.com together with a copy sent by registered or certified mail to the address listed below.
All notices mailed should be sent to:
Heavy Bubble, Ltd.
1616 Walnut Street Suite 1413
Philadelphia, PA 19103
All notices delivered to Heavy Bubble in accordance with this provision shall be conclusively deemed to have been given on the date of receipt by Heavy Bubble, except that notice by e-mail to Heavy Bubble shall be deemed effective and received upon receipt of the registered or certified mail copy and shall be deemed ineffective, null, and void unless a copy of such notice is also sent by registered or certified mail, and postmarked not more than five (5) days subsequent to the giving of e-mail notice.
Assignment and Resale
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without Heavy Bubble's prior written consent. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. Heavy Bubble may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
You may not reproduce, duplicate, copy, sell, resell, or exploit the Services or any portion or use thereof without the express prior written permission of Heavy Bubble.
Governing Law and Disputes
This Agreement and the Services provided hereunder shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania and, where applicable, the federal law of the United States of America, without regard to conflicts of law principles. Any and all disputes that may arise between you and Heavy Bubble relating to this Agreement or to the Services shall be resolved in a court of competent jurisdiction situated in the City of Philadelphia, Commonwealth of Pennsylvania. You consent to personal jurisdiction and venue in such courts and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that the prevailing or substantially prevailing party in any dispute between you and Heavy Bubble shall be entitled to collect its reasonable attorneys' fees, costs, and other expenses.
Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
Entire Agreement
This Agreement constitutes the entire agreement between you and Heavy Bubble with respect to the provision of Services and the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of Heavy Bubble or you has any authority to make any representation or promise in connection with this Agreement or the subject matter hereof which is not contained expressly in this Agreement, and Heavy Bubble and you hereby acknowledge and agree that neither Heavy Bubble nor you have executed this Agreement in reliance upon any such representation or promise.
Modifications to these Terms and Conditions
These Terms and Conditions may be materially altered by Heavy Bubble at any time and from time to time by posting the new version of these Terms and Conditions on the Heavy Bubble website at www.heavybubble.com and if posted in this manner, shall be effective immediately upon posting such new Terms and Conditions. In the event that Heavy Bubble does change these Terms and Conditions, you accept and shall be bound by such changed terms unless you opt to terminate the Services within thirty (30) days of the posting of the new Terms and Conditions.
You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of Heavy Bubble. No additional or conflicting term in any other document used by you will have any legal effect.
Definitions
"Web Site Space" shall mean a quantity of computer memory allocation, as outlined in the program description for Your Services, generally located on one or more computer storage devices and measured in units of megabytes (MBs) wherein data comprising your web site is stored and is accessible by Heavy Bubble’s web server equipment.
“Your Data” shall mean any data, including but not limited to advertisements, documents, e-mails, images, movies, web pages, or other content, related to your use of the Services and stored on or transmitted by Heavy Bubble’s web server equipment.
Heavy Bubble, Ltd. (“Heavy Bubble”) offers web hosting services for artists to easily display their artwork on their own website by simply selecting a design format and uploading images of their artwork (the “Services”).
Definitions of certain capitalized terms used throughout this Agreement and not otherwise defined herein can be found at the end of this Agreement.
Acceptance of Terms
BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING THE SERVICES OFFERED BY HEAVY BUBBLE AND/OR BY CLICKING THE “I AGREE” CHECKBOX DURING THE SIGN UP PROCESS, YOU AGREE TO BE BOUND BY THE TERMS OF THESE TERMS AND CONDITIONS. THESE TERMS &CONDITIONS SUPERSEDE ALL EARLIER VERSIONS. Please read these terms and conditions carefully, as they describe your legal rights and obligations and form a binding contract between you and Heavy Bubble. These Terms and Conditions shall become come effective as of the date of (1) clicking the “I agree” checkbox acknowledging your acceptance of these Terms and Conditions, (2) the activation of your Heavy Bubble account, or (3) your receipt of an e-mail from Heavy Bubble confirming activation of your account, whichever occurs first.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OR ANY MODIFICATION HERETO, DO NOT CLICK THE “I AGREE” CHECKBOX, IMMEDIATELY CEASE USING THE SERVICES, AND CONTACT HEAVY BUBBLE IMMEDIATELY ABOUT TERMINATING YOUR ACCOUNT.
Description of Services
When you sign up with Heavy Bubble, choose a level of Service, and provide us with your name and contact information and a valid PayPal account for billing, Heavy Bubble will provide you with an account and instructions. You are responsible for keeping your contact and billing information up to date and promptly proving Heavy Bubble with any changes to such information. It is also your responsibility to keep your account information, including any user names and passwords, confidential. You agree to immediately notify Heavy Bubble of any unauthorized use of your account or other breach of security. Heavy Bubble cannot and will not be liable for any loss or damage you may suffer as a result of your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Heavy Bubble be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. Your use of the Services are subject to the following conditions and restrictions:
Heavy Bubble shall provide to you a non-transferable, revocable, non-sublicensable, non-exclusive and limited license to use the amount of Web Site Space allocated to you for your non-exclusive use for the exclusive purpose of storing Your Data and disseminating Your Date via the Internet through the use of the Services for purposes consistent with these Terms and Conditions and in accordance with the level of Service you have selected.
Heavy Bubble, either directly or through its assignee or licensee, shall provide certain customer service and technical support as part of the Services. Such customer services may consist of replying to customer questions or complaints related to the Services, and technical support may consist of resolving technical problems encountered with the Services. Heavy Bubble is not required to provide any customer service or technical support except as expressly provided in these Terms and Conditions. Any and all requests for additional customer service or technical support may be refused by Heavy Bubble with or without reason. Any additional customer service or technical support which Heavy Bubble may subsequently agree to provide to you shall be at Heavy Bubble’s sole discretion and once commenced, may be terminated at any time by Heavy Bubble without notice to you and without any liability to Heavy Bubble. Notwithstanding the foregoing, Heavy Bubble may at any time in its discretion alter or cease providing the customer service and/or technical support that it has agreed to provide to you relating to the Services without any liability to Heavy Bubble.
Unless provided otherwise in the specifications for your Services, bandwidth use (i.e. the rate of data transmission in bits per second), including but not limited to data retrieval from your web site, traffic, and downloads, shall not exceed 3 gigabytes per month. This amount may change at any time from time to time depending on the number of customers and other factors. You are responsible for monitoring your bandwidth use to ensure compliance with this paragraph.
Any or all of the Services may not be available to persons outside the United States. Heavy Bubble reserves the right to alter, amend, or discontinue the provision of some or all of the Services to customers outside the United States at any time in Heavy Bubble’s discretion.
INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED IN THE UNITED STATES OF AMERICA. THE PERSONAL INFORMATION WHICH YOU GIVE HEAVY BUBBLE WILL BE TRANSFERRED TO AND MAINTAINED IN THE UNITED STATES AND ELSEWHERE AND WILL BE SUBJECT TO THE LAWS OF THE UNITED STATES. IF YOU DO NOT CONSENT TO THIS TRANSFER, YOU SHOULD NOT ACCEPT THESE TERMS AND CONDITIONS AND YOU SHOULD TERMINATE OR DECLINE SERVICES. INTERNATIONAL CUSTOMERS FURTHER UNDERSTAND AND AGREE THAT HEAVY BUBBLE MAY DISCLOSE PERSONAL INFORMATION ABOUT ITS INTERNATIONAL CUSTOMERS AND THEIR RESPECTIVE WEBSITES OR DOMAIN NAMES AND YOU WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
Heavy Bubble may suspend performance under or terminate this Agreement, cease transmission of data associated with your web site immediately and without notice, permanently remove Your Data, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with any applicable laws if it is informed or otherwise believes, in its sole discretion, that your web site and/or your use of the Services violates any applicable laws or the intellectual property rights of any third party or is otherwise the subject of a dispute. As more completely set forth elsewhere in these Terms and Conditions, you waive any and all clams you may have, now and forever, against Heavy Bubble relating to the content, use, and operation of your web site through the Services and agree to indemnify and hold harmless Heavy Bubble from and against any and all such claims.
You are responsible for backing up Your Data. Heavy Bubble does not perform back up services and does not warrant or otherwise guarantee that Your Data will not be damaged, deleted, lost, corrupted, or unavailable, including without limitation due to termination or suspension of your account. If any of Your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable due to termination or suspension of your account, Heavy Bubble will have no obligation or liability to you. It is therefore strongly recommended that you back up all of Your Data.
Billing and Payment
The PayPal account that you provide to Heavy Bubble upon registering for the Services will be charged automatically in advance of every month for your use of the Services and shall continue to be charged until your account is terminated in accordance with these Terms and Conditions. You may upgrade or downgrade your level of Service at any time. If you chose to upgrade your level of Service, you will be charged the pro-rata amount for the higher Service level and the upgrade will take effect immediately upon such charge. If you chose to downgrade your Services, the downgrade will take effect at the next monthly billing cycle. Accordingly, you will not receive a pro-rata refund for any downgrade.
In the event that Heavy Bubble determines in its sole discretion that the services of an attorney or a collection agency are necessary or appropriate to collect amounts due from you, any and all attorney or collection agency fees and other costs of collection shall be added to any amounts due under by you.
Term and Termination
Unless sooner terminated pursuant to other terms of this Agreement, and except as otherwise provided in this Agreement, this Agreement shall be for an initial term of one month and shall be automatically renewed each month for additional one month periods unless and until sooner terminated pursuant to the provisions of this termination provision. Heavy Bubble may accept prepayment for services to be provided under this Agreement, but such acceptance shall not modify or extend the term of this Agreement.
You or Heavy Bubble may terminate this Agreement at any time for any reason, with or without cause, upon thirty days' written notice.
Heavy Bubble may suspend performance under or terminate this Agreement and cease transmission of data associated with your website immediately and without notice if any of the following events occur: (a) Heavy Bubble, in its sole discretion, deems that you have breached any part of these Terms and Conditions, including, without limitation, any warranty, representation, obligation, or restriction of use set forth herein; (b) your PayPal account on file with Heavy Bubble is rejected or you otherwise fail to make payment when due; (c) circumstances or occurrences beyond Heavy Bubble’s reasonable control render it impossible, difficult, or unreasonable to render the Services to you.
Heavy Bubble reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice, for maintenance purposes or otherwise. You agree that Heavy Bubble shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
You further agree that in the event that Heavy Bubble believes, in its sole discretion, that you have breached any of the warranties, representations, obligations, or restrictions of use contained herein, Heavy Bubble may, without any liability or notice to you, and in addition to any other remedies, erase and/or purge any of Your Data from Heavy Bubble’s web server equipment. without prior notice to you.
Upon termination, you will no longer have access to your account. Upon termination, Your Data may be deleted. Heavy Bubble accepts no liability for deletion of Your Data.
NO WARRANTIES BY HEAVY BUBBLE
THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. HEAVY BUBBLE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES HEAVY BUBBLE MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. NO WARRANTY IS MADE BY HEAVY BUBBLE REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND HEAVY BUBBLE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES PROVIDED TO YOU HEREUNDER; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HEAVY BUBBLE DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON'S OR ENTITY'S WEB SITE OR WEB PAGE THROUGH THE USE OF THE HEAVY BUBBLE SERVICES.
HEAVY BUBBLE’S LIMITED LIABILITY AND YOUR RELEASE
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL HEAVY BUBBLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, HEAVY BUBBLE'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. HEAVY BUBBLE DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE SERVICES, AND HEAVY BUBBLE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE HEAVY BUBBLE FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF HEAVY BUBBLE FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO HEAVY BUBBLE IN THE SIX (6) MONTHS PRECEDING SUCH ALLEGED BREACH.
Your Additional Obligations, Warranties, Representations, and Restrictions on Use
You agree and warrant that the contact and billing information you have provided to Heavy Bubble is complete and accurate, and you further agree to notify Heavy Bubble within ten (10) days of any change to any such information. Contact information includes your full legal name, e-mail address, and mailing address and the name, mailing address, telephone number, facsimile number, and e-mail address of the technical and administrative contacts for your domain. Your billing information includes all information related to your PayPal account necessary for your PayPal account to be automatically charged by Heavy Bubble for your use of the Services.
You agree and warrant that your use of the Services, and all sales and distributions made through your web site, including without limitation of any artwork displayed on your website shall at all times comply with all applicable laws and shall not violate the copyright or any other rights of any third party. You warrant that you are the artist and/or have all right, title, and interest in and to the artworks displayed on your website and that such artworks do not violate the copyright or other rights of any third party.
You agree and warrant that you will neither store on nor allow to be transmitted through the use of the Services any data or other matter which constitutes, contains, or links to child pornography or which involves depictions of sexuality by someone who is or looks younger than eighteen years of age, regardless of their actual age, or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age, or which could otherwise result from or cause harm to minors. You agree that you shall install and maintain appropriate and effective screening devices and/or procedures on your website to avoid access to, or communication of, any harmful matter or indecent communications to minors.
You agree and warrant that Your Data shall not violate any laws concerning obscenity and shall not contain or link to any pornography, or depictions of bestiality, rape, sexual assault, violence, torture or disfigurement, or other content deemed objectionable by Heavy Bubble, in its sole discretion.
You agree and warrant that Your Data shall not constitute or contain or link to material which is harmful, violent, threatening, abusive, hateful, libelous, slanderous, defamatory, or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights. You agree not to collect the personally identifiable data of any person without that person's consent. If you collect this data through your website you shall do so only pursuant to a posted privacy policy disclosing any and all uses of such identifiable data and in compliance with applicable law.
You agree and warrant that Your Data and any and all material(s) of every kind which you transmit using the Services shall at all times be free from any and all damaging software defects, including, but not limited to, software "viruses", "worms", "Trojan Horses," and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to use the Services to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.
You agree and warrant that you shall not use any form of mass unsolicited electronic mail solicitations, news group postings, IRC posting or any other form of "spamming," “phishing,” or "mail bombing," and Heavy Bubble reserves the right to block mail from any source which Heavy Bubble believes, in its sole discretion, is being used to send such unsolicited e-mail, including but not limited to open mail relays. You shall not operate a chat room using the Services. You agree to comply with all rules regarding online conduct and acceptable content.
You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the Services.
You shall at all times use you’re your Web Site Space exclusively as a conventional website. All use of Web Site Space and the Services shall at all times be in a manner consistent with these Terms and Conditions and shall not in any way impair the functioning or operation of Heavy Bubble’s network. Should your use of the Services result in an overly high load on the Heavy Bubble server in Heavy Bubble’s sole discretion, Heavy Bubble may suspend your account until the cause of any such overload is determined and resolved or may terminate your account if Heavy Bubble believes that the situation cannot be satisfactorily resolved.
You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all transactions associated with your use of the Services, including without limitation with respect to any artwork sold through your website, and that no taxing authorities shall have any claim against Heavy Bubble or any persons affiliated therewith for the payment of such taxes. In furtherance of this representation, you agree to fully indemnify Heavy Bubble with respect to any claims made by any taxing authority against Heavy Bubble with respect to any transactions associated with your website and your use of the Services.
You represent and warrant that you are over eighteen years of age (or such other age of majority in places where eighteen years is not the age of majority) and are fully competent to enter into this Agreement and to accept these Terms and Conditions of the Services.
You represent and warrant that you are not a national or resident of any country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the “Entity List” or “Denied Persons List” maintained by the US Department of Commerce or the list of “Specially Designated Nationals and Blocked Persons” maintained by the US Department of Treasury.
You agree to abide by United States and other applicable export control laws and not to transfer or permit the transfer, by electronic transmission or otherwise, any content or materials subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to your Heavy Bubble account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
You agree and warrant that Your Data shall be solely for business, artistic, entertainment, and/or educational purposes and that you shall assume the sole responsibility and duty to ensure that all such data, visual materials, artwork, advertising and other matter shall be transmitted exclusively to willing adults and only to places in which such materials comply with contemporary community standards.
You affirmatively represent, agree and warrant that you have and at all times shall have all necessary intellectual property rights, including, but not limited to, all copyrights, trademark and service mark rights and rights of publicity, both in the United States and throughout the world, to reproduce and disseminate, via the Internet, Your Data and all content displayed on your website or which you otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the Services, prior to and at all times during the time such materials are promoted, advertised, disseminated or distributed through any direct or indirect use of the Services.
You agree that if, in Heavy Bubble's sole and exclusive judgment, Heavy Bubble concludes that your website displays, contains, or links to any harmful matter or indecent materials or communications which are available to, or accessible by, minors, or displays or contains any material that consists of child pornography or which could otherwise result in harm to minors, or contains material that violate any applicable law or any third party’s rights; then Heavy bubble may, without prior notice to you and in Heavy Bubble's sole and exclusive discretion, either remove and erase the material from your web site, and/or disable public access to the material on your web site, and/or terminate your account and the Services, and/or cease hosting your web site, or take any other action it deems appropriate without any liability of any kind to Heavy Bubble from either you or any third party. As more completely set forth elsewhere in these Terms and Conditions, you waive any and all claims you may have, now and forever, against Heavy Bubble relating to any action taken in response to the claim that you have infringed the intellectual property or other rights of a third party, and agree to indemnify and hold harmless Heavy Bubble from and against any such claims.
You further confirm, understand, acknowledge and expressly agree that neither Heavy Bubble, nor any agent or representative of Heavy Bubble, nor any other person is currently representing or otherwise directly or indirectly communicating in any manner herein or otherwise, nor has at any time in the past, represented to you or has otherwise directly or indirectly communicated in any manner to you any guarantee, reassurance or any other communication of any kind regarding the potential profitability, marketability, or likelihood of success of your endeavors through the use of the Services; any increase in sales of or interest in your artwork; or the recoupment of any funds expended in the use of the Services. You expressly acknowledge and agree that the success of any business endeavors which involve your use, in any manner, of the Services pursuant to this Agreement, like any other business endeavor, is subject to numerous factors, such as the effectiveness of its advertising and promotion, your administrative capabilities, the quality of and the demand for your work, etc., and that the ultimate success or failure of your business rests with you and not Heavy Bubble. You further expressly agree not to raise any claim of any kind against Heavy Bubble and to hold Heavy Bubble harmless from any claim of financial investment or other loss to you directly or indirectly resulting from your decision to use the Services.
Confidentiality and Privacy
During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to Heavy Bubble in connection with Heavy Bubble's performance of the Services ("Confidential Information"). You agree to preserve the confidentiality of all Confidential Information that is provided in connection with the Services, and shall not, without the prior written consent of Heavy Bubble, disclose or make available to any person, or use for your own or any other person's benefit any Confidential Information of Heavy Bubble. Heavy Bubble retains all right and title to such Confidential Information.
Heavy Bubble is committed to maintaining the privacy of any data submitted by you to Heavy Bubble. Heavy Bubble will comply with all applicable laws with respect to such data. Heavy Bubble will securely protect all such data, including without limitation, your PayPal account information, from and against theft and other security breaches in accordance with our internal security policy and applicable law. It is Heavy Bubble's policy to not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless Heavy Bubble deems it necessary, in its sole discretion, to: (a) comply with legal process or other legal requirements, including but not limited to responding to civil or criminal subpoenas, search warrants, national security letters, or other requests for information from law enforcement officials; (b) enforce this Agreement; or (c) protect the interests of other Heavy Bubble’s other customers.
NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, HEAVY BUBBLE RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF YOUR ACCOUNT, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THESE TERMS AND CONDITIONS OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
Trademark and Copyright
Heavy Bubble and the Heavy Bubble logo and all other marks displayed on the Heavy Bubble website and in materials distributed by Heavy Bubble are trademarks of Heavy Bubble, Ltd. and the content appearing on the Heavy Bubble material are the copyrighted property of Heavy Bubble, Ltd. All rights reserved. Heavy Bubble retains all rights to such trademarks and copyright materials and nothing in this Agreement grants you or anyone else any right whatsoever to the use of Heavy Bubble’s trademarks or copyright material. You may not use, reproduce, or display any Heavy Bubble trademarks or any content on the Heavy Bubble website without Heavy Bubble's prior written consent. Any and all other trademarks, product names, and company names and logos appearing on Heavy Bubble’s website are the property of their respective owners and are subject to such owners’ use restrictions.
Your Indemnification of Heavy Bubble
You agree that you shall fully defend and indemnify Heavy Bubble, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, and their respective heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in these Terms and Conditions, including, but not limited to, your warranties set forth in this Agreement or your violation of a third party's intellectual property rights. You further agree to defend, indemnify and hold harmless Heavy Bubble, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, and their respective heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that Heavy Bubble shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
No Joint Venture or Partnership
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Heavy Bubble and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Heavy Bubble and you. Heavy Bubble shall have no control or ownership interests of any kind in your business. Heavy Bubble shall have no direct financial or other interest in, nor in any way own any of the artwork displayed on your website. Heavy Bubble’s relationship to you shall be restricted to matters pertaining to the provision of the Services as set forth in this Agreement.
Permission to Promote Your Website
By using the Services, you agree to allow and you grant permission to Heavy Bubble to promote your website, including without limitation by displaying a link to your website and/or images of your website and/or your artwork on the Heavy Bubble website. If you do not want your website and artwork promoted or your images displayed on the Heavy Bubble website, you must notify Heavy Bubble in writing, and Heavy Bubble will endeavor to comply with your request. You further understand that Heavy Bubble is in no way obligated to promote your website or your artwork and it is solely in Heavy Bubble’s discretion to do so and to chose which, if any, customers’ website and artwork it chooses to promote. You agree and acknowledge that you have no control over the manner in which your website and/or artwork is promoted or displayed on the Heavy Bubble website other than to request that it not be.
Services Rendered on a Non-Exclusive Basis
Any and all services that are or may be provided to you by Heavy Bubble pursuant to this Agreement are non-exclusive and nothing in this Agreement shall limit or restrict Heavy Bubble from providing similar services to other customers regardless of whether such other customers are your competitors. Nothing in this Agreement shall limit or restrict Heavy Bubble or any of its officers, directors, employees, or shareholders from engaging in any activities similar to yours or in competition with you.
No Editorial Control by Heavy Bubble
In reliance on your express warranties regarding Your Data, Heavy Bubble shall neither have nor exert any editorial or other subjective control over the substantive content of Your Data. Heavy Bubble cannot be held responsible for the content of website. You are solely responsible for the content of your website.
Severability
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
No Waiver
Failure of Heavy Bubble at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of Heavy Bubble.
Notices
Heavy Bubble may provide notice to you via e-mail sent to the e-mail address provided by you upon registration or as subsequently provided by you to Heavy Bubble. Such notice is deemed effective whether you receive it or not and shall be deemed written notice for the purposes of this Agreement.
You may provide notice to Heavy Bubble in one of the following ways: (a) by addressing the notice as indicated below and depositing the same by registered or certified mail, postage prepaid, in the United States mail, to the address listed below; (b) by Federal Express to the address listed below; or (c) by e-mail to payments@heavybubble.com together with a copy sent by registered or certified mail to the address listed below.
All notices mailed should be sent to:
Heavy Bubble, Ltd.
1616 Walnut Street Suite 1413
Philadelphia, PA 19103
All notices delivered to Heavy Bubble in accordance with this provision shall be conclusively deemed to have been given on the date of receipt by Heavy Bubble, except that notice by e-mail to Heavy Bubble shall be deemed effective and received upon receipt of the registered or certified mail copy and shall be deemed ineffective, null, and void unless a copy of such notice is also sent by registered or certified mail, and postmarked not more than five (5) days subsequent to the giving of e-mail notice.
Assignment and Resale
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without Heavy Bubble's prior written consent. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. Heavy Bubble may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
You may not reproduce, duplicate, copy, sell, resell, or exploit the Services or any portion or use thereof without the express prior written permission of Heavy Bubble.
Governing Law and Disputes
This Agreement and the Services provided hereunder shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania and, where applicable, the federal law of the United States of America, without regard to conflicts of law principles. Any and all disputes that may arise between you and Heavy Bubble relating to this Agreement or to the Services shall be resolved in a court of competent jurisdiction situated in the City of Philadelphia, Commonwealth of Pennsylvania. You consent to personal jurisdiction and venue in such courts and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that the prevailing or substantially prevailing party in any dispute between you and Heavy Bubble shall be entitled to collect its reasonable attorneys' fees, costs, and other expenses.
Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
Entire Agreement
This Agreement constitutes the entire agreement between you and Heavy Bubble with respect to the provision of Services and the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of Heavy Bubble or you has any authority to make any representation or promise in connection with this Agreement or the subject matter hereof which is not contained expressly in this Agreement, and Heavy Bubble and you hereby acknowledge and agree that neither Heavy Bubble nor you have executed this Agreement in reliance upon any such representation or promise.
Modifications to these Terms and Conditions
These Terms and Conditions may be materially altered by Heavy Bubble at any time and from time to time by posting the new version of these Terms and Conditions on the Heavy Bubble website at www.heavybubble.com and if posted in this manner, shall be effective immediately upon posting such new Terms and Conditions. In the event that Heavy Bubble does change these Terms and Conditions, you accept and shall be bound by such changed terms unless you opt to terminate the Services within thirty (30) days of the posting of the new Terms and Conditions.
You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of Heavy Bubble. No additional or conflicting term in any other document used by you will have any legal effect.
Definitions
"Web Site Space" shall mean a quantity of computer memory allocation, as outlined in the program description for Your Services, generally located on one or more computer storage devices and measured in units of megabytes (MBs) wherein data comprising your web site is stored and is accessible by Heavy Bubble’s web server equipment.
“Your Data” shall mean any data, including but not limited to advertisements, documents, e-mails, images, movies, web pages, or other content, related to your use of the Services and stored on or transmitted by Heavy Bubble’s web server equipment.