BetterThanYours.Com Service Agreement

$Revision: 1.12 $ - Last Updated: $Date: 2012/01/27 16:26:02 $ UTC


This Service Agreement ('Agreement') is a legal agreement made by and between Polydata One llc dba BetterThanYours.Com ('Polydata'), an Arizona Limited Liability Company, and you, either an individual or a single legal entity, (and also binding your heirs, assigns, agents, successors, and contractors) (collectively, 'You') and is effective upon electronic execution or as further provided herein.  This Agreement sets forth the terms and conditions governing Your use of Polydata's systems, software, or services.  You must accept the terms of this Agreement before using Polydata provided systems, software, or services.  If You do not agree to the terms of the Agreement, You are not authorized to use Polydata's systems, software, or services, and You must, without a grace period, cease any use or access of Polydata's systems, software, or services.  Unauthorized use or access of Polydata's systems, software, or services may subject You to civil and criminal sanctions.

 

By clicking “I HAVE READ, UNDERSTOOD, AND AGREE WITH THESE TERMS” when presented to You after the end of this Agreement, or by Your continued use of Polydata provided systems, software, or services, You indicate and acknowledge that You have read and understood, and that You agree to be bound by, all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies which Polydata may establish from time to time. You may view the latest version of this Agreement at any time at http://BetterThanYours.com/legal/hosting_agreement.

 

E-SIGN CONSENT NOTICE


E-SIGN, the Electronic Signatures in Global and National Commerce Act (15 U.S.C. §§ 7001, et seq.), requires that You consent to entering into an electronic agreement with Polydata before the agreement is executed.  Please read the following information carefully.

  • If You enter into this Agreement with Polydata, it will be an online agreement.

  • The entire Agreement between You and Polydata will be evidenced by an electronic record.  However, You must consent to the use of an electronic record and must read the Service Agreement and electronically acknowledge that You have read this document.

  • To access this document and submit Your online acknowledgement, You will need the following hardware and software: A Personal Computer (PC) with modem or other Internet access device, and operational Internet browser software (e.g., Mozilla Firefox or Internet Explorer).

  • You may withdraw your consent to the use of electronic records at any time.  However, should You do so, Your Agreement with Polydata will be automatically terminated.

  • Should You wish to withdraw your consent to the exclusive use of an electronic agreement (and thereby terminate your Agreement with Polydata) You may do so by sending written notice to Polydata One llc, c/o 4635 S. Lakeshore Dr., Tempe, AZ 85282.

  • You are required to read this Service Agreement in its entirety.  You should print and copy this Service Agreement, if you so desire.  Polydata encourages you to print and retain this Agreement.

  • You further agree that Polydata may amend the Service Agreement at its sole discretion at any time.

  • By clicking “I HAVE READ, UNDERSTOOD, AND AGREE WITH THESE TERMS” below, You consent to use of electronic records evidencing Your agreement.  If You fail to so indicate Your agreement, Your order process will be terminated and You will be returned to our home page.

 

1. TERM OF AGREEMENT


The term of this Agreement will commence upon Your acceptance of this Agreement (as provided above), and shall continue in full force and effect as long as Polydata is providing systems, software, or services to You.  This Agreement shall be unlimited as to amount or duration.

 

You agree that You will be responsible for notifying Polydata should You desire to terminate this Agreement.  Notice of Your intent to terminate must be provided to Polydata no later than 5 (five) business days prior to Your billing date, described below.

 

Polydata may terminate this Agreement by giving You notice 5 (five) business days before the intended termination date.   Polydata may further terminate this Agreement without prior notice, and take appropriate technical measures to effect such termination, in case of Your failure to comply with the terms of this Agreement, or in other exceptional cases further detailed herein.

 

Upon termination of this Agreement, the limited right to use granted herein will terminate, and You agree to immediately discontinue Your use of Polydata's provided systems, software, or services.

 

2. FEES


As consideration for the limited right to use certain Polydata provided systems, software, or services, You agree to pay Polydata an annual, non-refundable fee. Your annual billing date will be determined based on the date You accepted this Agreement, unless that date falls on February 29th, in which case Your billing date will be February 28th. You pay by providing Polydata a valid credit card for charge, or by presenting another honored form of payment.  If for any reason Polydata is unable to charge Your credit card with the full amount for Your limited right to use certain systems, software, or services provided, or if Your payment is dishonored, or if Polydata is charged back for any fee it previously charged to the credit card You provided, You agree that Polydata may pursue all available remedies in order to obtain payment.


In the absence of notification from You, Polydata may automatically continue providing the same or equivalent systems, software, or services indefinitely, and will charge the credit card You have on file with Polydata, at Polydata's then current rates.  It is Your responsibility to keep Your credit card information current, including the expiration date.  In the event You terminate, moving Your files or data off Polydata systems is solely Your responsibility.  Absent separate agreement and payment of related charges, Polydata will not transfer or FTP Your files or data to another service provider.

 

Without limiting anything herein, Polydata reserves the right to change its fees in the future.


3. DESCRIPTION OF SERVICE


Polydata currently provides Webhosting and related systems, software, or services to its customers for a fee. Polydata will host Your web site on Polydata's Webhosting servers, provided, however, You abide by the terms and conditions set forth herein.  You are responsible for ensuring that Your web site conforms to all local, state, federal, and international laws.

 

Polydata's Webhosting systems, software, or services, by design, perform a variety of communications over the Internet as part of their normal operations, including sending unencrypted, or unsecured, or encrypted, or secured, text or data.  By using Polydata's systems, software, or services, You consent to such communications and agree that You are solely responsible for supplying Your own Internet access and for paying any telecommunications or other connectivity charges incurred through Your use of Polydata's systems, software, or services.  You agree that Polydata has the absolute right, in its sole discretion, to review, inspect, or examine any data transmitted to or via Polydata's systems, software, or services, for the protection of Polydata's systems, software, or services, or for any purpose whatsoever.

 

Further, You are responsible for ensuring the legal copyright to any images, text, or any other web site elements.  Polydata does not grant to You any express or implied licenses or rights to any enabling technologies or systems that may be necessary to use Polydata's systems, software, or services.  If Your web site includes GIF images, You must ensure that Your GIF images are licensed with Unisys or were created with Unisys Authorized Software.

 

You understand and agree that Polydata may update its systems, software, or services at any time, but is under no obligation to inform You of or furnish to You any such updates.  This Agreement does not grant You any right, license or interest in or to any support, maintenance, improvements, modifications, enhancements, or updates to the systems, software, or services.  To the extent that Polydata supplies any updates to You, such updates will be deemed to be subject to the terms of this Agreement unless Polydata indicates otherwise.


4. NONEXCLUSIVE RIGHT TO USE

 

Subject to the terms of this Agreement, Polydata grants to You a personal, non-exclusive, non-transferable right to use, but not the right to resell, certain systems, software, or services You have selected and for which the appropriate fee has been collected.  Polydata reserves the right to provide same, similar, or different systems, software, or services for others, including to persons or entities in competition with You, before, during, or after the term of this Agreement.

 

The right to use Polydata's systems, software, or services, or any part thereof, is a license, and is not sold, and You agree that You disclaim all other rights, title and interest in and to Polydata's systems, software, or services, and all intellectual property therein.  You agree that, excepting the limited right to use expressly granted to You, nothing herein grants You any title, right, or interests in and to Polydata's systems, software, or services, including without limitation all patent rights, copyrights, trademarks, trade names, trade secrets and other intellectual property and proprietary rights.  You agree that there are no implied rights or licenses under this Agreement, and all rights not expressly granted are reserved by Polydata.


5. YOUR OBLIGATIONS


You agree that You have provided accurate, current and complete information in the application and payment process, and that You will notify Polydata within five (5) business days when any of the information You provided as part of the application and/or payment process changes.  Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Polydata to determine the validity of information provided by You, will constitute a material breach of this Agreement.  If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Polydata has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, Polydata has the absolute right, in its sole discretion, to terminate Your use of Polydata's systems, software, or services, and close Your account, without the right to any refund.


You warrant that Your offer to enter into this Agreement is done in good faith, and further, that You have no knowledge of Your proposed use of Polydata's services infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name. You also warrant that Your proposed use of Polydata's systems, software, or services will not be in connection with any illegal activity. Additionally, you grant Polydata the right to use your name for attribution purposes in connection with submitted materials and other information, as well as in connection with advertising, marketing, and promotions.

 

6. LIMITATIONS ON YOUR USE OF OUR SYSTEMS, SOFTWARE, OR SERVICES

 

You may access or use Polydata's systems, software, or services as provided herein, but You may not access or use Polydata's systems, software, or services, for any other purpose, or in any other manner.  You agree that You will not use Polydata's systems, software, or services, or any part thereof, in connection with any illegal activity, or storing or transmitting pornographic materials (irrespective of the material's legality), or storing or transmitting gambling products, services, or data (irrespective of the material's legality), or generating or transmitting unsolicited, commercial e-mailing (i.e., SPAM), or any illegal or unauthorized access or attempt to access other computers or networks (i.e. hacking), or distribution of computer viri (viruses) or similar activities, be they destructive or otherwise.  By agreeing to be bound this Agreement and Your use of Polydata's systems, software, or services, You explicitly promise that You will never recklessly or knowingly store, submit, publish, display or transmit any illegal, copyright-infringing, pornographic, gambling, SPAM, hacking, cracking, virus, virus-infected, worm, trojan-horse, defamatory, inaccurate, abusive, or threatening material on or by the use of Polydata's systems, software, or services.

 

Except as otherwise expressly permitted herein (if at all), any of the following, without limitation, constitute a material breach of this Agreement:

 

  1. Your failure to comply with the terms of this Agreement;
  2. Using Polydata's systems, software, or services, or any part thereof, in contravention of then then-current version of this Agreement;
  3. Your failure to pay Your agreed-upon fees when due;
  4. Your use of Polydata's systems, software, or services, or any part thereof, in connection with:
    1. Any illegal (violating any federal, state, or local law, rule or regulation) activity; or
    2. Storing or transmitting pornographic materials (irrespective of the material's legality); or
    3. Storing or transmitting gambling products, services, or data (irrespective of the material's legality); or
    4. Generating or transmitting unsolicited, commercial e-mail (i.e., SPAM); or
    5. Illegal or unauthorized access to other computers or networks (i.e., hacking); or
    6. Distribution of computer viri (viruses), computer worms, computer trojan horses, or similar activities, be they destructive or otherwise; or
    7. Abusive, defamatory, libelous, or illicit purposes; or
    8. Other activities, whether lawful or unlawful, that Polydata determines, in its sole discretion, to be harmful to its other customers, operations, or reputation;
  5. Tampering with, spoofing, or attempting to obtain unauthorized access to Polydata systems, software, services, or databases, or those of any of Polydata other customers;
  6. Copying, translating, modifying, creating derivative works of, Polydata's systems, software, or services, or any part thereof;
  7. Your distribution, sale, assignment, pledge, sublicensing, lease, loan, use for service bureau purposes, rent, or otherwise transferring Polydata's systems, software, or services, or any part thereof, in any form, to another person;
  8. Removing from Polydata's systems, software, or services, or any part thereof, or altering, any of the trademarks, trade names, logos, patent or copyright notices or other proprietary notices or markings, or adding any other notices or markings to them;
  9. Your use of Polydata's systems, software, or services that consumes an amount of resources significantly exceeding the amount Polydata has agreed to provide;
  10. Permitting any other party to do any of the foregoing.

 

7. POLYDATA'S RIGHTS


Polydata has the absolute right, in its sole discretion, to determine Your compliance with the preceding Article.  Failure by You, for whatever reason, to comply with that Article, to any extent, will constitute a material breach of this Agreement, subjecting You, without further notice, to immediate termination of Your use of Polydata provided systems, software, or services, and closure of Your account, without the right to any refund.  Any termination by Polydata pursuant to this Article will be exercised without limiting any other rights or remedies of Polydata.

 

Additionally, Polydata explicitly reserves the right and sole discretion to:

 

  1. Censor any web site hosted on its Webhosting servers that, in Polydata's sole discretion, is deemed inappropriate;
  2. Review Your use of Polydata's systems, software, or services for excessive resource utilization, and to terminate such use, or apply additional fees for exceeding allowed levels, or to allocate extra resources for additional fees;
  3. Modify its pricing with notification via web publication of the updated prices;
  4. Terminate Your use of Polydata's provided systems, software, or services, if such use results or gives rise to any legal action or threatened legal action, against Polydata any of its affiliates or partners or its officers, directors, employees or agents, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.


You agree to indemnify and hold harmless Polydata for any complications arising out of Your use of Polydata's systems, software, or services, including actions Polydata chooses to take in compliance with this or the preceding Article, or to remedy Your failure to comply with this Agreement. You agree You will not be entitled to a refund of any fees paid to Polydata if, for any reason, Polydata takes corrective action with respect to Your improper or illegal use of its systems, software, or services.


8. DISPUTE RESOLUTION


You agree that if a dispute arises as a result of Your use of Polydata's systems, software, or services, You will indemnify, defend and hold Polydata harmless for damages arising out of such dispute. You also agree that if Polydata is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding Your use of Polydata's systems, software, or services, that Polydata, in its sole discretion, may take whatever action Polydata deems necessary regarding further modification, assignment of and/or control of Your limited right to use Polydata's systems, software, or services, to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.


9. COURT ORDERS

 

You agree to release, defend, indemnify and hold harmless Polydata and its contractors, agents, employees, offices, directors, shareholders and affiliates from and against any losses, damages or costs, including reasonable attorney's fees, resulting from any claim, action, proceeding, suit, or demand arising out of or related in any way to Polydata's use and disclose of any information to the extent required by an executive, administrative, or judicial order, or similar process.  To the extent possible and permitted by applicable law or judicial order, Polydata shall, disclaiming any liability for its failure to do so, endeavor to notify You of each such order when and as it comes to Polydata's attention.

 

10. FORCE MAJEURE

 

You agree that Polydata shall not be liable for any failure or delay caused by events beyond Polydata's control, including, without limitation, Your failure to furnish necessary information, sabotage, failures or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, acts of any governmental body, war, terrorism, insurrection, unavailability or interruption or delay in third party services, failure of third party software, inability to obtain raw materials, supplies, equipment, or power, shortages of labor, fuel, raw materials, or equipment, or technical failures.  You further agree that failures of computer equipment are not uncommon, that such failures can result in the permanent and irretrievable loss or destruction of Your data, as well as the denial of services.  You agree to remain responsible for determining to what extent, if any, Your data is critical.  You agree that, in Your sole discretion, You will make and retain copies of Your files and data (‘backups’), as You deem it necessary, and You agree that You have not delegated that duty to Polydata.  You agree that Polydata may not create or retain backups, and that in case of data loss, You will not look to Polydata to recover or restore Your data.  You agree that in no case will You hold Polydata responsible for the loss of any of Your data, or the resources, effort, time, or materials employed in creating Your data, or required to restore or recreate Your data.

 

11. DISCLAIMER OF WARRANTIES


Polydata makes no commitment to You about the performance, availability, or proper operation of any of Polydata's systems, software, or services, and may immediately discontinue its provision or operation of such systems, software, or services to You at any time without notice.

 

POLYDATA’S SYSTEMS, SOFTWARE, OR SERVICES ARE PROVIDED TO YOU “AS IS”.  POLYDATA EXPRESSLY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS, INDEMNIFICATIONS, AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS,  AND ANY WARRANTIES AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF POLYDATA’S SYSTEMS, SOFTWARE, OR SERVICES.

 

POLYDATA REASONABLY BELIEVES THAT ITS SYSTEMS HAVE BEEN DESIGNED AND TESTED IN SUCH A MANNER THAT THEY SHOULD NOT GENERATE ANY INVALID AND/OR INCORRECT DATE-RELATED RESULTS OR CAUSE ANY OF THE PROBLEMS COMMONLY REFERRED TO AS "YEAR 2000 PROBLEMS" AND SHOULD, WITHOUT INTERRUPTION OR MANUAL INTERVENTION, CONTINUE TO OPERATE CONSISTENTLY, PREDICTABLY AND ACCURATELY, WHEN USED DURING ANY YEAR PRIOR TO, DURING OR AFTER THE CALENDAR YEAR 2000. HOWEVER, YOU AGREE THAT POLYDATA MAKES NO WARRANTIES TO THAT EFFECT, AND THE REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RESPECTING THIS AGREEMENT.

 

YOU AGREE TO ASSUME THE ENTIRE RISK AS TO, AND ACKNOWLEDGE THAT YOU RELY SOLELY AT YOUR OWN RISK ON, RESULTS AND PERFORMANCE ARISING OUT OF THE USE OF POLYDATA’S SYSTEMS, SOFTWARE, OR SERVICES.  THE ENTIRE RISK AS TO QUALITY, PERFORMANCE, OR APPLICABILITY IS WITH YOU.  SHOULD POLYDATA’S SYSTEMS, SOFTWARE, OR SERVICES PROVE TO HAVE DEFECTS IN ANY WAY, YOU ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION ARISING IN CONNECTION WITH SUCH DEFECTS.

 

WITHOUT LIMITING THE FOREGOING, POLYDATA SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATIONS, THAT POLYDATA’S SYSTEMS, SOFTWARE, OR SERVICES, POLYDATA’S EFFORTS, OR ANY SYSTEM WITH WHICH YOU WILL USE THE SYSTEMS, SOFTWARE, OR SERVICES WILL MEET YOUR REQUIREMENTS, FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS, OR THAT THE OPERATION OF THE SYSTEMS, SOFTWARE, OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.  YOU ASSUME THE RESPONSIBILITY FOR THE SELECTION OF YOUR REQUIREMENTS, SOFTWARE, AND HARDWARE TO ACHIEVE YOUR INTENDED RESULTS.

 

Some jurisdictions may not allow the disclaimer of implied warranties, so the above disclaimer may not apply to You, in which case the duration of any such implied warranties is limited to thirty (30) days from the date You first begin the use of Polydata's systems, software, or services, or any part thereof.  In case of breach of such implied warranties, Polydata's sole and exclusive obligation and liability and Your sole and exclusive remedy will be, at Polydata's sole discretion, to

 

  1. repair, correct, or work around any defect; or
  2. provide a reasonable substitute for the affected systems, software, or services; or
  3. terminate this Agreement and issue You a refund of any fees that You may have paid Polydata for the use of Polydata's systems, software, or services (if any).

 

12. INDEMNIFICATION


You agree to release, defend, indemnify and hold harmless Polydata and its contractors, agents, employees, offices, directors, shareholders and affiliates from and against any losses, liabilities, damages, expenses, or costs, including reasonable attorney's fees, resulting from any claim, action, proceeding, suit, or demand arising out of or related in any way to Your use or misuse of Polydata's systems, software, or services or Your breach of this Agreement.  You further agree to promptly notify Polydata of any such claim, action, proceeding, suit, or demand, when and as such comes to Your attention.  You further agree to actively cooperate with Polydata in the defense and resolution of such claim, action, proceeding, suit, or demand.

 

13. LIMITATION OF LIABILITY


YOU AGREE THAT IN NO EVENT SHALL POLYDATA BE LIABLE, AND POLYDATA DISCLAIMS ALL LIABILITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST DATA, LOST PROFITS, OR THE LIKE, OR ANY LOSS OF BUSINESS OR ANTICIPATORY PROFITS), ARISING OUT OF YOUR USE, OR INABILITY TO USE, OR RELIANCE ON POLYDATA PROVIDED SYSTEMS, SOFTWARE, OR SERVICES, OR POLYDATA’ EFFORTS, EVEN IF SUCH PROVED TO BE DEFECTIVE, MISLEADING, OR IN CONTRAVENTION TO LAW, STATUTE, OR REGULATION, AND EVEN IF POLYDATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, OR RECKLESSNESS), STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY,

 

YOU AGREE THAT IN NO EVENT, REGARDLESS OF THE FORM OF ACTION, WILL POLYDATA’S ENTIRE AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO YOU OR TO ANY THIRD PARTY, EXCEED TWENTY U.S. DOLLARS (U.S. $20.00), OR THE TOTAL AMOUNT YOU PAID TO POLYDATA DURING THE PRECEEDING YEAR, WHICHEVER IS MORE.  THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMITATION.  Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so this limitation and exclusion may not apply to You.

 

This limitation of liability will apply notwithstanding the failure of essential purpose of any limited remedy set forth herein.  The warranty disclaimer and limitation of liability are fundamental elements of the basis of the bargain between You and Polydata.  Polydata would not provide the use of Polydata's systems, software, or services to You absent such limitations.

 

14. MUTUAL DEFENSES

 

You and Polydata mutually agree to vigorously and with all due diligence and best efforts, defend and protect this Agreement against all challenges and attacks.  You and Polydata mutually agree to indemnify and save harmless one another and their heirs, agents, successors, assigns, and contractors, from any claim, action, liability, loss, damage or suit, arising from this Contract, save claims arising from breach of this Agreement.


15. U.S. GOVERNMENT USE

 

Polydata's provided systems, software, or services are a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212.  Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, Polydata provides the systems, software, or services to U.S. Government end users only pursuant to the terms and conditions herein.

 

16. EXPORT CONTROL

 

You agree and acknowledge that Polydata's provided systems, software, or services may be subject to U.S. export control law, and You will comply with all applicable laws and regulations in Your use of Polydata's provided systems, software, or services under this Agreement, including without limitation all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts §§ 730-774).  Without limiting the foregoing, You expressly agree not to export or re-export any Polydata's provided systems, software, or services in violation of such laws or regulations, or without all required licenses and authorizations.

 

17. HEADINGS

 

The headings or article captions in this Agreement are for the convenience of the parties, and do not limit or affect this Agreement's interpretation.

 

18. TIME


Time is of the essence.

 

19. RELATIONSHIP

 

Nothing contained herein will be construed to create any agency, employment, partnership, principal-agent relationship, or other form of joint enterprise between the parties.

 

20. PARTIES IN INTEREST

 

This Agreement is enforceable only by You and Polydata.  The terms of this Agreement are not a contract or assurance regarding availability of information, products, services, or benefits of any kind to any of Your present or potential customers, clients, partners, contacts, associates, or visitors, or any beneficiary of any of such, and none of them, or any beneficiary thereof, shall be a third-party beneficiary under or pursuant to the terms of this Agreement.  You and Polydata explicitly, and without reservation, enter this Agreement for our mutual benefit, and disclaim and deny any third-party beneficiary.

 

21. ASSIGNMENT

 

You agree that You will not and may not assign or transfer this Agreement, or any of Your rights or obligations under this Agreement, in whole or in part, either voluntarily or by operation of law, without the prior written consent of Polydata.  You agree that any attempt to do so shall be void from the beginning, and a material breach of this Agreement.  You agree same shall be just cause giving rise to an absolute right for Polydata, in its sole discretion, to terminate this Agreement, without further notice.  You agree that in such case, You will not be entitled to a refund of any fees paid to Polydata.

 

Polydata may assign this Agreement without consent to any third party.

 

22. SUCCESSORS

 

You agree that this Agreement shall inure to the benefit of, and be binding upon, You and Polydata, and each of their heirs, agents, successors, assigns, and personal representatives.

 

23. MODIFICATIONS

 

No oral agreement or conditions outside this Agreement are admitted.  You agree that Polydata may modify this Agreement from time to time. Polydata may also discontinue supporting systems, software, or services it provides under this Agreement. You agree to be bound by any changes Polydata may reasonably make to this Agreement when such changes become effective.

 

24. WAIVER

 

The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with that and every other provision of this Agreement.  No waiver shall be valid or enforceable unless signed by each party.

 

25. SEVERABILITY


You agree that the terms of this Agreement are severable.  If any part or provision of this Agreement shall be held to be invalid or unenforceable for any reason, such part or provision of the Agreement will be interpreted and enforced to the maximum extent permissible, and the remaining provisions of this Agreement shall continue in full force and effect.  If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

 

26. WAIVER OF TRIAL BY JURY


YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY PROCEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THIS AGREEMENT.

 

27. VENUE AND JURISDICTION


THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND EXECUTED IN THE STATE OF NEVADA.  THE LAWS AND JUDICIAL DECISIONS OF CLARK COUNTY, NEVADA, SHALL BE USED TO DETERMINE THE VALIDITY, CONSTRUCTION, INTERPRETATION AND LEGAL EFFECT OF THIS AGREEMENT, AND TO RESOLVE ANY DISPUTE ARISING HEREUNDER, AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA, WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS SPECIFICALLY DISCLAIMED.

 

YOU AGREE TO AND GIVE KNOWING, EXPLICIT AND IRREVOCABLE CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS LOCATED IN CLARK COUNTY, NEVADA, FOR ANY AND ALL DISPUTES OR ACTIONS RELATING TO OR ARISING OUT OF THIS AGREEMENT, AND AGREE THAT ANY CLAIM ASSERTED IN ANY LEGAL OR QUASI-LEGAL PROCEEDING BY ONE OF THE PARTIES AGAINST THE OTHER SHALL BE ARBITRATED IN CLARK COUNTY, NEVADA, OR COMMENCED AND MAINTAINED IN ANY STATE OR FEDERAL COURT LOCATED IN CLARK COUNTY, NEVADA, HAVING SUBJECT MATTER JURISDICTION WITH RESPECT TO THE DISPUTE BETWEEN THE PARTIES.

 

28. ARBITRATION

 

Any dispute, controversy, or claim arising out of or relating to this Agreement, the interpretation thereof, the performance thereunder, or the breach thereof, when not resolved by the parties, shall be settled at the request of either party by binding arbitration administered in Maricopa County, Arizona, by the American Arbitration Association (AAA) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  Either party may invoke this paragraph after providing 30 days written notice to the other party.  All costs of arbitration shall be divided equally between the parties.  YOU AGREE THAT YOU AND POLYDATA INTEND THAT THIS AGREEMENT TO ARBITRATE BE IRREVOCABLE, AND ALL PARTIES FURTHER AGREE THAT WE WILL FAITHFULLY OBSERVE THIS AGREEMENT AND THE RULES, AND THAT WE WILL ABIDE BY AND PERFORM ANY AWARD RENDERED BY THE ARBITRATOR(S).  Each party shall be deemed to have consented that any papers, notices, or process necessary or proper for the initiation or continuation of an arbitration may be served on a party by mail addressed to the party or its representative at the last known address or by personal service, in or outside the state where the arbitration is to be held.  The AAA and the parties may also use facsimile transmission, telex, telegram, or other written forms of electronic communication to give the notices required.  In controversies requiring emergency interim relief, the parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the arbitration proceedings.

 

29. EQUITABLE REMEDIES

 

You agree that Polydata would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore You agree that Polydata shall be entitled, without bond, or other security, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Polydata may otherwise have available to it under applicable laws.

 

30. COSTS AND ATTORNEYS’ FEES

 

If Polydata commences arbitration, claim, action, proceeding, suit, or demand, to enforce any of the provisions of this Agreement, or for the breach thereof, or if legal proceedings are otherwise commenced with respect to the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorneys' fees, as fixed by the arbitrator or trial court, and if any appeal is taken, reasonable costs and attorneys' fees as fixed by that court.


31. NOTICES


You agree and consent to the use of e-mail, facsimile transmission, telex, telegram, or other written forms of electronic communication, and such shall be of the same effect as if personally delivered or mailed.  Specifically, You agree that all notices (except for notices concerning breach of this Agreement) from Polydata to You may be posted on our web site, and shall be deemed to have been delivered five (5) business days after the date posted, or when earlier receipt or review is confirmed.  Notices concerning breach will be sent to either Your then last known e-mail or Your then last known postal address.  Notices to Your e-mail address will be deemed effective upon its retrieval from Your e-mail server.  Notices sent by mail shall be deemed to have been made five (5) calendar days after the date sent, or when earlier receipt is confirmed.  You agree to inform us of any change in Your address by written notice in compliance with this Article, and You agree that Your failure to provide timely address change notice shall work as waiver and acceptance for notices transmitted during such lapse.

 

Notices to Polydata must be sent, registered mail, return receipt requested, to our postal address below, or to the postal address we may provide for that purpose on our web site in the future, and such notice will be deemed effective five (5) business days thereafter.    Notices sent, registered mail, return receipt requested, and contemporaneously copied by e-mail sent to the e-mail address below will be deemed effective three (3) calendar days thereafter.

 

Polydata One llc dba BetterThanYours.Com

c/o 4635 S. Lakeshore Dr.

Tempe, AZ 85282

 

Notices@BetterThanYours.com

 

32. SURVIVAL

 

In the event of any termination of this Agreement, Articles 1, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31, hereof shall survive and continue in effect.

 

33. ENTIRE AGREEMENT

 

This Agreement shall rescind, supersede, terminate, and/or make void any and all previous or contemporaneous understandings and agreements between You and Polydata, relating to this subject matter, whether oral or written.  Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that there are no other agreements, statements, conditions, clauses, or promises, in any form, written or oral, relating to this subject matter, not contained in this Agreement.  This Agreement is a final, complete, and exclusive expression of the agreement between You and Polydata relating to the subject matter hereof, listing all terms and omitting none.

 

 

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