Terms of Service
(Revised MARCH, 2011)
1. ACCEPTANCE OF TERMS
2. DESCRIPTION OF SERVICE
All client orders are subject to verification and approval by City America to ensure accuracy and availability of city/cities chosen.
CityAmerica provides users with access to a software administration platform (the “Service”) for purposes of publishing and maintaining an on-line directory for a specific category of interest in a specific city as specified in your registration form for the Service (a “Directory”). You agree not to use the Service or operate your Directory to provide content or subject matter other than that directly and exclusively related to the category of interest and city specified in your registration form. You agree that CityAmerica may remove or block any content or subject matter that CityAmerica, in its sole discretion, believes is in violation of these TOS. You also understand and agree that the Service may include advertisements and that these advertisements are necessary for CityAmerica to provide the Service. You also understand and agree that the Service may include certain communications from CityAmerica, such as service announcements, and that these communications are considered part of CityAmerica membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided “AS-IS” and that CityAmerica assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access and use the Service.
CityAmerica shall build a framework for your Directory complete with, but not limited to: Entry Page, Forum, Classifieds, Business Listings, Coupons, Polls, and Banner Rotator. Custom modifications may be added for additional fees. CityAmerica is not responsible for the content of the Directory. CityAmerica is not responsible for the day-to-day operations of the site or Directory, including but not limited to, site or Directory updates, sales of business listings, sales of banner advertisements, posting to or from forums, classifieds or articles. All customizations requested to the basic design of the Directory website shall be considered a custom build to which additional fees, at CityAmerica’s then standard rates, shall apply.
With your agreement, CityAmerica shall acquire the agreed domain name for your Directory and maintain it for the full duration of your association with CityAmerica, including paying monthly or annual hosting fees for the site during the term of your association with CityAmerica. If you prefer, you may purchase and mantain domain name and all fees involved yourself for use on your City America website.
3. LICENSE & FEES
CityAmerica grants you a personal, non-transferable and non-exclusive right and license to use the Service to operate your Directory. For so long as you are licensed to use the Service, without your prior written consent CityAmerica will not grant a license to any other person for the specific city specified in your registration form for the Service. You shall pay City America a one time setup fee of as agreed at signup, plus a monthly license fee for each month, or a quarterly lease per 3 months, or a bi-annual of every six months, or an annual membership fee per year, to be paid via the online payment merchant 2Checkout.com or Paypal. Amount of membership payments to be agreed upon at signup and will continue at same rate until membership cancellation. You agree to automatic 2Checkout.com/PayPal withdrawals of any fees due under these TOS. All terms commence from the date the customer has placed the order for the website. All clients must have an active billing agreement tied to their City America account or suspension of membership will be immediate. Termination for any account without an active billing agreement is done at the descretion of CIty America.
You can terminate your use of the Service at any time by submitting in writing your request through our help desk ticket system (www.bullseyesupport.com). Cancellation requests made via direct email, through payment processor, or phone call will not be honored due to authentication purposes. CityAmerica can terminate your use of the Service upon 30 days notice for any reason, or immediately as provided in Section 16 of these TOS.
Due to the nature of the program being a non-tangible product and service no payments or partial payments for membership shall be refunded if cancellation is requested. It is the client responsibility to ensure membership is canceled before next re-occurring payment is due. Cancellation requests sent after 5PM on any given day will not be processed until the next business day. Please submit your cancellations accordingly. City America sites are terminated on the same day billing agreement is canceled. Sites are not held active until end of billing cycle. If billing agreement is terminated, membership is terminated same day.
Chargebacks - Any chargebacks not initiated by City America will result in an immediate collections process and a reporting of a debt owed to all three major credit reporting agencies.
4. YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States . You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or CityAmerica has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CityAmerica has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
6. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a password and account designation upon completing the Service’s registration process (“CityAmerica ID”). You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify CityAmerica of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. CityAmerica disclaims liability for any loss or damage arising from your failure to comply with this Section 6.
7. MEMBER CONDUCT
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not CityAmerica, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. CityAmerica does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will CityAmerica be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Service to:
a. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, sexually explicit, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable or sexually oriented in any fashion;
b. harm minors in any way;
c. impersonate any person or entity, including, but not limited to, a CityAmerica official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
e. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
f. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark , trade secret, copyright or other proprietary rights (“Rights”) of any party;
g. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation that violates the CAN-SPAM Act of 2003 or any federal or state laws regarding bulk email or deceptive advertising;
h. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
i. disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
j. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
k. violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
l. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
m. “stalk” or otherwise harass another; and/or
n. collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through m above.
You acknowledge that CityAmerica may or may not pre-screen Content, but that CityAmerica and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Service. Without limiting the foregoing, CityAmerica and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable, or otherwise disable public access to your Directory, upon one or more instances of you publishing Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by CityAmerica or submitted to CityAmerica, including without limitation information in CityAmerica Message Boards and in all other parts of the Service.
You acknowledge, consent and agree that CityAmerica may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of CityAmerica, its users and the public.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by CityAmerica and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
8. SPAM POLICY
CityAmerica has a zero tolerance policy with respect to unsolicited bulk email, which is prohibited by Section 7(g) of these TOS. This prohibition extends to (i) the sending of unsolicited mass mailings from another service, which in any way implicates the use of CityAmerica whether or not the message actually originated from the CityAmerica network, (ii) configuration of a mail server to accept and process third-party messages for sending without user identification and authentication, (iii) spamming via third-party proxy, aggregation of proxy lists, or installation of proxy mailing software, (iv) forgery of email headers (“spoofing”), and (v) use of the CityAmerica network for the receipt of replies to unsolicited mass email (spam) sent from a third-party network.
If your actions have caused CityAmerica mail servers or CityAmerica IP address ranges to be placed on black hole lists and other mail filtering software systems used by companies on the Internet, you agree to pay CityAmerica a $100 block removal charge and $100/hour for CityAmerica’s administrative charges incurred to remove and protect mail servers and IP ranges.
9. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws, including those regarding the transmission of technical data exported from the United States .
10. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
CityAmerica does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant CityAmerica the following worldwide, royalty-free and non-exclusive license(s), as applicable:
a. the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting the specific Directory to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or CityAmerica removes such Content from the Service; provided, however, if your account with CityAmerica is terminated for any reason, including by reason of failure to pay fees when due, or violation of these TOS, the license for use of the Content you submit and granted by you herein shall continue in perpetuity.
b. the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or CityAmerica removes such Content from the Service; provided, however, if your account with CityAmerica is terminated for any reason, including by reason of failure to pay fees when due, or violation of these TOS, the license for use of the Content you submit and granted by you herein shall continue in perpetuity.
c. the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed; provided, however, if your account with CityAmerica is terminated for any reason, including by reason of failure to pay fees when due, or violation of these TOS, the license for use of the Content you submit and granted by you herein shall continue in perpetuity.
“Publicly accessible” areas of the Service are those areas of the CityAmerica network of properties that are intended by CityAmerica to be available to the general public. By way of example, publicly accessible areas of the Service would include CityAmerica city directories and portions of CityAmerica that are open to both members and visitors. However, publicly accessible areas of the Service would not include portions of CityAmerica that are limited to members, or areas off of the CityAmerica network of properties such as portions of World Wide Web sites that are accessible via hypertext or other links but are not hosted or served by CityAmerica.
11. CONTRIBUTIONS TO CITYAMERICA
By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to CityAmerica through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) CityAmerica is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) CityAmerica shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) CityAmerica may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of CityAmerica without any obligation of CityAmerica to you; and (f) you are not entitled to any compensation or reimbursement of any kind from CityAmerica under any circumstances.
13. NO REDISTRIBUTION OF SOFTWARE SERVICE
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your CityAmerica ID), use of the Service, or access to the Service.
You can sell your established business and client base, domain name and other business assets for whatever amount you feel it is worth. City America policy is the new owner fully understand our terms of service and there being a monthly/quarterly/annual payment for membership, software use and hosting if they wish to keep your site on our software. No sale of your business assets is to claim our software or service as part of the sale. A $100 transfer fee may be applicable. This can be paid by either original or new owner at time of transfer.
14. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that CityAmerica may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that email messages, message board postings or other uploaded Content will be retained by the Service, the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on CityAmerica’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that CityAmerica has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that CityAmerica reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that CityAmerica reserves the right to modify these general practices and limits from time to time.
15. MODIFICATIONS TO SERVICE
CityAmerica reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that CityAmerica shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You agree that CityAmerica may, under certain circumstances and without prior notice, immediately terminate your CityAmerica account, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. Termination of your CityAmerica account includes (i) removal of your access to all offerings within the Service, including but not limited to your Directory listings and domains, (ii) deletion of your password, and (iii) barring of further use of the Service. Further, you agree that all terminations for cause shall be made in CityAmerica’s sole discretion and that CityAmerica shall not be liable to you or any third party for any termination of your account, any associated email address, or access to the Service.
17. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that CityAmerica shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because CityAmerica has no control over such sites and resources, you acknowledge and agree that CityAmerica is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that CityAmerica shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
19. CITYAMERICA’S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or authorized by CityAmerica or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
You agree not to (and will not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by CityAmerica for use in accessing the Service.
You agree not to compete with City America on your own behalf or as a partner, owner, agent, independent contractor, consultant, member or in any other capacity on behalf of any other person, firm or corporation, directly or indirectly, engage in any activity or business that provides software or services similar to the businesses and services being provided to you hereunder from the date of your acceptance of this Service Agreement , proof of acceptance will be by your access to any area of the software or support services, to and including the date 2 years from receipt of your cancelation under this Service Agreement worldwide, nor shall you, in any way, contact any customers of City America hereunder during such period and within such geographic area. You agree any person, employee, agent, independent contractor, consultant or member who gains access to our services through your service agreement, will have the same noncompete effective between that person, employee, agent, independent contractor, consultant or member and City America.
21. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CITYAMERICA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. CITYAMERICA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CITYAMERICA OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
22. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CITYAMERICA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CITYAMERICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
IN NO EVENT SHALL CITYAMERICA’S LIABILITY FOR DIRECT DAMAGES EXCEED THE AMOUNT PAID BY YOU TO CITYAMERICA FOR THE SERVICE IN THE TWELVE MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
23. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 20 AND 21 MAY NOT APPLY TO YOU.
24. NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.
25. TRADEMARK INFORMATION
CITYAMERICA, the CityAmerica logo and other CityAmerica trademarks and service marks are the “CityAmerica Marks”. Without CityAmerica’s prior written permission, you agree not to display or use in any manner the CityAmerica Marks.
26. DMCA POLICY
You agree that you will comply with the DMCA Policy which is incorporated by reference into these TOS. For more information, see our full DMCA Policy at http://www.cityamerica.com/pages/dmca.
27. GENERAL INFORMATION
Entire Agreement. The TOS constitute the entire agreement between you and CityAmerica and governs your use of the Service, superseding any prior agreements between you and CityAmerica with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other CityAmerica services, affiliate services, third-party content or third-party software. The TOS do not create an agency, independent contractor, employment or franchise relationship. The section titles in the TOS are for convenience only and have no legal or contractual effect.
Choice of Law and Forum. The TOS and the relationship between you and CityAmerica shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and CityAmerica agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Palm Beach , Florida .
Waiver and Severability of Terms. The failure of CityAmerica to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
Non-Transferability. You agree that your CityAmerica account is non-transferable without written permission from City America.
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 the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Survival. Accrued payment obligations, Section 5 and Sections 7 through 26 of these TOS shall survive expiration or termination of these TOS or your right to use the Service.
28. BANNED SCRIPTS
You are free to use third party scripts provided they do not affect the normal operations of the server, contain security vulnerabilities and they are not mentioned specifically below. Scripts that are commonly known for causing server disruption include large cgi-based message forums, auctions, and banner exchanges. In the event a script affects normal server and/or administrative operations, Company reserves the right to disable the account pending Customer cooperation and resolution.
Scripts we do not allow include:
• Chat scripts of any kind
• PHPBB(2), YABB, UBB, UltimateBBS forums
• IRC bots and clients
• Anonymizer and all other Proxy scripts
• phpShell and all other command execution scripts
• 4Images or any CGI based image galleries
• Topsites scripts
• Link exchange scripts
• NichePLR Scripts
• MySpace scripts of any kind
• osDate or other dating scripts
• Scripts that closely match plugins we already offer
Customer may use secure formmail scripts but they must be up-to-date and not running with the filename "formmail". Any files named "formmail" will be deleted without notice.
Company reserves the right to disable any third party scripts at their discretion. Please keep in mind we use quality, dedicated servers designed specifically for our own scripts. Your hosting lease with us is designed for the use of our own software as installed by our staff.
IMPORTANT: If you wish to use third party scripts, we may require our staff to review it. We will review it one time free of charge. If a vulnerability is found, further reviews to ensure problem area has been repaired may be subject to a $65 fee per script before the script will be allowed.
29. HOSTING POLICY
Data Unlawful or Against the TOS: Promoting violation of the law or the TOS by hosting data that facilitates the violation is prohibited, including but not limited to:
Hosting web pages that detail the methodology of committing unlawful acts, or acts violating this TOS.
Hosting software, scripts, or other resources intended to facilitate committing unlawful acts, or acts violating this TOS.
Advertising, transmitting, storing, or using any software, script, program, product, or service designed to violate this TOS.
Harvesting. The collection of email addresses, credit card information, or other personal information for fraudulent use or sale is prohibited.
Phishing. Hosting web pages with forwards to, containing scripts or executables for, or any other component of an operation designed to fraudulently collect authentication, credit card, names, addresses, or any other personal data (“phishing”) is not permitted.
Spamvertised Sites. Hosting web pages advertised by spam sent from another network (“spamvertised”) is not permitted.
Email Spam. Company has a zero stance policy on SPAM, Junk E-mail, or UBE. Spam, Junk-mail and UCE are defined as: the sending of the same, or substantially similar, unsolicited electronic mail messages, whether commercial or not, to more than one recipient. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. UBE also includes e-mail with forged headers, compromised mail server relays, and false contact information. This prohibition extends to the sending of unsolicited mass mailings from another service, which in any way implicates the use of Company whether or not the message actually originated from company network.
Definition of SPAM
All Unsolicited Bulk Email or "UBE", email which is both unsolicited and bulk, is hereby defined in this TOS as spam. Unsolicited means the recipient did not give verifiable, deliberate, explicit, and revocable permission for the message to be sent. Bulk means the message was sent to multiple recipients with substantively identical content and, therefore, the recipient's personal identity and context are irrelevant because the email is equally applicable to multiple recipients. Spam is an issue of consent, not content. No other definition of spam including, without limitation, Title 15 USC Chapter 103 Controlling the Assault of Non-Solicited Pornography and Marketing § 7702 et. al or "CAN-SPAM Act" applies to the definition of spam as used in this TOS.
Opt-In Mailing Lists
Mailing lists must be true opt-in which requires you to provide to the recipient either a confirmation email or a confirmation web page whereby the recipient must have replied with a confirmation email having a unique tracking number or must have clicked a hyperlink in the confirmation email having a unique tracking number maintained in your web server log file or must have clicked the hyperlink in the confirmation web page having a unique tracking number maintained in your web server log file thereby granting verifiable, deliberate, explicit, and revocable permission to be added to the specific opt-in email list at the specific site both of which must be hosted on the network of DT6 and under your administrative control. You are required to provide the confirmation email reply with unique tracking number or the web server log file line having the unique tracking number as evidence that the recipient did, indeed, opt-in to the email list. You are also required to provide at least one simple method to opt out of the email list which must be honored immediately.
Block Removal. If Customer actions have caused Company mail servers or Company IP address ranges to be placed on black hole lists and other mail filtering software systems used by companies on the Internet, Customer will be assessed a $100 charge to Customer account and $100 per hour for administrative charges incurred to remove and protect mail servers and IP ranges.
Drop-Box Accounts. Using this network for the receipt of replies to unsolicited mass email (spam) sent from a third-party network is prohibited.
Header Forgery. Forgery of email headers (“spoofing”) is prohibited.
Proxy Spamming. Spamming via third-party proxy, aggregation of proxy lists, or installation of proxy mailing software is prohibited.
Relaying. Configuration of a mail server to accept and process third-party messages for sending without user identification and authentication is prohibited.