Web Publishing, Web Hosting, Lycos Domains and Lycos Mail
This Agreement (the "Subscription Agreement") governs the Lycos Services as defined below. By using the Lycos Services, you agree, without limitation or qualification, to be bound by, and to comply with, (a) this Agreement and any other posted guidelines, (b) the Lycos General Terms and Conditions, (c) the Lycos Privacy Policy, and (d) to the extent the Service you are purchasing includes an E-mail account, the Lycos Mail Terms and Conditions. (the "Subscription Agreement, the Lycos General Terms and Conditions, the Lycos Privacy Policy and the Lycos Mail Terms and Conditions are referred to herein collectively as, the "Agreement"). As used in this Subscription Agreement, the terms "we" and "our" shall refer to Lycos.
1. Definitions.
"Content" shall mean any content, including, but not limited to, images, text, graphics, photographs, links, animation, audio works, and audiovisual works, that (a) you provide to Lycos in connection with the Lycos Services, including all E-mails; (b) is displayed on, through or in connection your Web Site; (c) is displayed on, through or in connection with the Gears for which you subscribe, if any; (d) is displayed on or through any Webon, Angelfire or Tripod Site, or (e) is posted by you on any Lycos Network property or web site, including all E-mails.
"Domain Name" shall mean any domain name that you register, renew, transfer, or otherwise process through Lycos Domains.
"E-mail(s)" shall mean any electronic mail message (including any content in such electronic mail message) sent or received by you through the Lycos Network, including, without limitation, Lycos Mail.
"Gears" shall mean features and tools made available on htmlgear.lycos.com that enable you to enhance your Web Site.
"Lycos" shall mean Lycos, Inc., its parent, affiliates and subsidiaries, and any successors and assigns.
"Lycos Domains" shall refer to the Lycos Service whereby users register a domain through Lycos any Lycos Website or Lycos Service and shall include domains registered by users as a stand-alone service or as part of purchase of another Lycos Service (i.e. Webon, Tripod or Angelfire).
"Lycos Network" shall mean all web sites owned or controlled by Lycos or its wholly-owned subsidiaries.
"Lycos Services" shall mean the service or services for which you are registering and/or subscribing, including as applicable and without limitation Webon, Angelfire, Tripod, Lycos Domains, and Lycos Mail.
"Registrar" shall mean an accredited domain name registrar with the Internet Corporation for Assigned Names and Numbers ("ICANN") that is selected by Lycos in conjunction with Lycos Domains.
"Subscription" shall mean your commitment to purchase Lycos Services for a specified period of time, such as one month or one year.
"Web Site" shall mean the URL(s) and associated pages: (a) submitted by you during the registration process; (b) on which or in connection with which you utilize the Gears; or (c) that is associated with the Domain Name you register, renew, transfer or otherwise process through Lycos Domains.
2. Lycos Services.
2.1 Subject to the terms and conditions of this Agreement, Lycos will provide the Lycos Services offered by Lycos from time to time. A description of the available Lycos Services packages, as such packages may exist and change from time to time, is set forth in the relevant pages of the Lycos Network (the "Product Descriptions").
2.2 You acknowledge that, in order to use the Lycos Services, you may need to comply with certain technical requirements. These requirements, if any, will be set forth in the Product Descriptions.
2.3 Lycos reserves the right to modify the Lycos Services at any time. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT LYCOS MAY CHANGE THE FEATURES AND TECHNICAL REQUIREMENTS OF LYCOS SERVICES OR PARTICULAR SERVICES PACKAGES FROM TIME TO TIME. If you are dissatisfied with any modification to the Lycos Services, your sole remedy will be to terminate the Lycos Services in the manner described in this Agreement.
2.4 Special Terms Relating to Lycos Domains-General.
2.4.1 Services Provided by Lycos. In connection with the Lycos Domains service, Lycos will (a) assist you in the registration, renewal, and transfer of global top level domain names by transmitting to the Registrar any relevant information you submit through the Lycos Network, (b) upon your request, forward e-mail that is sent to your Domain Name to an e-mail address that you are authorized to use, and (c) cause a domain name server to associate your Domain Name with an IP address that you are authorized to use and that you provide to Lycos. Lycos Domains registration services are provided through a Registrar as described below for all gtlds.
2.4.2 Domain Contacts. Lycos will be the billing contact and, in its discretion, the technical contact for your Domain Name. If you choose a person other than yourself as a contact for a Domain Name, (i) that person will be bound by the Registrar Terms and Conditions (as later defined) in addition to yourself, (ii) that person will be bound by this Agreement in addition to yourself, and (iii) you represent and warrant that you have the authority to bind that person to this Agreement and the Registrar Terms and Conditions.
2.4.3 ICANN Policies. By completing the registration process and purchasing the Lycos Domain Service from us, you agree to be bound by the policies of ICANN and the terms of the ICANN Uniform Domain Name Dispute Resolution Policy located at icann.org/udrp/udrp.htm as may be amended from time to time.
2.4.4 Availability of Domain Name. You acknowledge that Lycos cannot guarantee the availability of a domain name that you select for your use until Lycos receives confirmation from the Registrar which may take several business days.
2.5 Special Terms Relating to Lycos Domains-Registrars.
2.5.1 Separate Agreement with Registrar. If you are registering or subscribing for Lycos Domains, you: (a) acknowledge that you are entering into a separate contractual relationship with the Registrar; (b) agree to comply with the Registrar's terms and conditions, which can be accessed through the links below ("Registrar Terms and Conditions"); (c) agree to abide by any other commitments you make to the Registrar; and (d) authorize Lycos to disclose to the Registrar all information relating to Lycos Domains that you submit through the Lycos Network or to Lycos personnel. Where applicable, you also agree to honor the policies of the relevant Domain Name registry.
2.5.2 Registrar Terms and Conditions. Lycos Domains will use one of three Registrars for your Domain Name: Melbourne IT Limited, Tucows.com Co., or Register.com, Inc. The choice of Registrar will be determined in accordance with the paragraphs immediately below. For the avoidance of doubt, the Registrar for your Domain Name will be identified on your domain management page.
2.5.2.1 Your Registrar. Unless otherwise provided in Section 2.5.2.2 below, your Registrar is either Melbourne IT or Tucows. Applicable Registrar Terms and Conditions for Melbourne IT are located at the URL www.melbourneit.com.au/policies. Applicable Registrar Terms and Conditions, including the Master Domains Registration Agreement, for Tucows are located at the URL www.opensrs.com/docs/contracts/exhibita.htm.
2.5.2.2 Register.com as Registrar. Register.com is the Registrar for (a) any Domain Name that you submitted for registration, renewal, or transfer prior to 12:20 PM EDT on June 30, 2003 and (b) any Domain Name that you submitted for registration prior to 12:20 PM EDT on June 30, 2003 and renewed prior to the one-year anniversary thereof. The Registrar Terms and Conditions for Register.com are located at the URL domains.lycos.com/tos/serviceagreement.html
2.5.3 Change of Registrar. In the event that Lycos changes the Registrar, you will abide by the terms and conditions required by the successor Registrar and take any other action reasonably requested by Lycos in order to transition to the successor Registrar. If you do not wish to abide by the terms and conditions of the successor Registrar or take any other action requested by Lycos pursuant to this paragraph, your sole remedy will be to terminate your Lycos Domains subscription.
2.6 Premium Domain Names.
2.6.1 Premium Name Service. Lycos' Premium Domain Name Service offers for sale domain names that are registered to third parties in a variety of tlds (such as .com, .net, .org, .biz, and .info tlds) through our Premium Domain Name Storefront.
2.6.2 Service Provided Through Melbourne IT. All information relating to the availability and pricing of Premium Domain Names contained in the Lycos Storefront is provided to Lycos by Melbourne IT. By purchasing a Premium Domain through the Lycos Storefront, you acknowledge that you are entering into a separate contractual relationship with Melbourne IT and agree to be bound by all of the terms and conditions of Melbourn IT's Premium Domain Name Purchase Agreement which is located here: www.melbourneit.com.au/policies/policy-premium-domains.php, including any terms and conditions of any third party suppliers of Premium Domains to Melbourne IT whose terms and conditions are incorporated into Melbourne IT's Premium Domain Name Purchase Agreement.
3. General Payment Terms
3.1 You agree to pay for the Lycos Services on time and in full.
3.2 You agree that the credit card information you provide corresponds to an account that you are authorized to use. We are permitted to charge your account in order to collect payment for the Lycos Services. Foreign credit cards are not accepted.
3.3 You are responsible for payment of all taxes and duties relating to the Lycos Services you have purchased, including, without limitation, all sales, use, transfer, privilege, and excise taxes and duties, whether national, international, state, or local, however designated. If you buy or sell or subscribe to any products or services through the Lycos Services, you shall be responsible for all taxes and duties associated with the purchase or sale of, or subscription to, such products or services, whether such taxes or duties be national, international, state, or local, however designated.
3.4 If any payment is more than 14 days overdue, you will cease to have the privileges reserved for paying users of the Lycos Services for which you have registered and subscribed (although you will continue to be bound by your obligations under this Agreement).
3.5 Special Terms Relating to Angelfire and Tripod. IF YOU ARE A PAID SUBSCRIBER TO TRIPOD OR ANGELFIRE, AND YOUR PAYMENT IS MORE THAN 60 DAYS OVERDUE, WE WILL DELETE YOUR CONTENT FILES UNTIL THE AMOUNT OF STORAGE SPACE YOU USE IS REDUCED TO THE LEVEL PERMITTED FOR SUBSCRIBERS OF A FREE SERVICE. IN THE EVENT THAT YOU DOWNGRADE THE PACKAGE OF SERVICES THAT YOU HAVE PURCHASED AND HAVE NOT REDUCED THE AMOUNT OF STORAGE SPACE YOU USE TO CONFORM TO THE THEN-EXISTING LIMITATIONS OF THE DOWNGRADED PACKAGE WITHIN 60 DAYS AFTER SUCH DOWNGRADING, THEN LYCOS WILL DELETE YOUR CONTENT FILES UNTIL THE AMOUNT OF STORAGE SPACE YOU USE IS REDUCED TO THE LEVEL PERMITTED FOR THE DOWNGRADED PACKAGE. WHEN DELETING CONTENT FILES, LYCOS RESERVES THE RIGHT TO DELETE FILES IN ANY ORDER THAT LYCOS, IN ITS SOLE DISCRETION, DETERMINES. UPON DELETING SUCH CONTENT FILES, LYCOS SHALL BE UNDER NO OBLIGATION TO STORE OR PRESERVE SUCH CONTENT FILES IN ANY FORM THAT MAY BE RECOVERED BY USERS. WE STRONGLY URGE YOU TO KEEP BACKUP COPIES OF ALL FILES IN YOUR TRIPOD AND ANGELFIRE ACCOUNTS.
4. Licenses.
4.1 You grant Lycos and its parents, subsidiaries, and affiliates a license, on a royalty-free, perpetual, nonexclusive, worldwide, and unrestricted basis, to: (a) use, copy, store, modify, transmit, distribute, publicly display, and publicly perform the Content so that Lycos may provide the Lycos Services, and (b) create, for promotional purposes, collective and derivative works that may include some or all of the Content you provide (excluding e-mails) and, for promotional purposes, to use, copy, store, modify, transmit, distribute, publicly, display, and publicly perform the Content (excluding e-mails) and any derivative or collective works containing or derived from the Content. If you are registering for or subscribing to the Tripod or Angelfire services, you further grant Lycos and its parents, subsidiaries, and affiliates the right to publicly display and distribute the URLs for your Web Site, along with your user name, in connection with any promotional materials making use of your Content.
4.2 Special Terms Relating to HTML Gear. Subject to this Agreement and if you register for or subscribe to Professional Gear, Lycos grants you a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable, royalty-free license for the Term to use the Gears for the sole purpose of displaying the Gears on your Web Site, if necessary, and utilizing the Gears in conjunction with your Web Site or htmlgear.lycos.com.
4.3 Special Terms Relating to Webon, Angelfire and Tripod. Unless your package of services specifies otherwise, you acknowledge and agree that Lycos may display advertisements on any Web site hosted by Lycos.
5. Proprietary Rights.
You acknowledge and agree that certain content available through the Lycos Services, including, but not limited to, trademarks and service marks owned by Lycos and its parents, subsidiaries, affiliates, licensors, and service providers, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified in this Agreement and in Lycos Network General Terms and Conditions. You agree not to modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Lycos Services. You agree not to hold yourself out as in any way sponsored by, affiliated with, or endorsed by Lycos or any of Lycos's parents, subsidiaries, affiliates, licensors, or service providers. You agree not to adapt, translate, modify, decompile, disassemble, or reverse engineer the Lycos Services or any software or program in connection with the Lycos Services, or to export, directly or indirectly, the Lycos Services or any software or program in connection therewith, to any person or entity outside the United States in violation of applicable U.S. export laws.
6. Monitoring Content.
Lycos is not responsible for the Content or your Web Site. You acknowledge and agree that you shall be solely responsible for the Content and your Web Site. Lycos reserves the right, but does not assume any obligation, to screen Content, including, without limitation, the right to refuse to post, transmit, or receive the Content or your Web Site or to remove any Content or your Web Site from the Lycos Network in the event that (i) Lycos determines in its sole discretion that the Content or your Web Site violates the Lycos Network General Terms of Service; (ii) Lycos determines in its sole discretion that the Content or your Web Site violates any law or regulation or violates the rights of any third party; (iii) Lycos receives a notification, including a notification pursuant to the Digital Millennium Copyright Act, alleging that any Content or your Web Site violates the Copyright Act; or (iv) for any other reason in Lycos's sole discretion. You shall bear all risk relating to the accuracy, completeness, reliability, usefulness, and legality of the Content of your Web Site or any Domain Name. In the event that Lycos removes any of the Content or your Web Site without terminating your use of the Lycos Services, then you may terminate the Lycos Services pursuant to Section 8.2 and your sole remedy shall be that specified in Section 8.3. In the event of any notification or complaint pursuant to the Digital Millennium Copyright Act or any other law, Lycos shall be under no obligation to obtain any counter notification or response from you before removing the Content or your Web Site.
7. Term and Renewal of Subscription or Domain Registration.
7.1 The Term of this Agreement shall last through the period of your Subscription and during any renewal periods for your Subscription, unless this Agreement is terminated earlier pursuant to the terms and conditions of this Agreement.
7.2 Unless otherwise stated herein, your Subscription for a specified time period will renew automatically for the same time period at the then-current price for the Lycos Services. If, for example, your Subscription is for one month, your Subscription will automatically renew for additional one-month terms.
7.3 All provisions of this Agreement, which, by their nature, impose continuing obligations, shall survive termination of this Agreement.
7.4 Term of Domain Name Registration. If, during the registration process, you are prompted to specify a duration for your Domain Name registration, then your registration shall be called a "Fixed-Term Registration." If, during the registration process, you are not prompted to specify a duration for your Domain Name registration, then your registration shall be called a "Variable Registration."
7.4.1 Term of Fixed-Term Registration. The term for a Fixed-Term Registration shall be the term that you specify during the registration process. Unless you notify us to the contrary as described herein, upon the expiration of a Fixed-Term Registration, we will ask the Registrar to automatically renew that registration for an additional one-year term. To obtain payment from you, we will charge our then-current renewal fee to the credit card we have on file. If the credit card we have on file has expired or is otherwise invalid, your registration will not be renewed. Should you wish to change either your billing information or the term of your renewal registration, you must do so at least six days before the day that the registration is due to expire by making the change on your account preferences page. If you do not wish to have your Fixed-Term Registration automatically renewed at the end of the term of registration, you must select the "Manual Renewal" mode on your account preferences page at least six days prior to the expiration of the registration.
7.4.2 Term of Variable Registration. The term for a Variable Registration shall begin on the date your registration is complete and continue for as long as you are in compliance with this Agreement. Upon the termination of your Variable Registration, or upon termination of any product package containing a Variable Registration Domain Name, you agree to assign all right, title, and interest in the Domain Name registration to Lycos and authorize Lycos to make, or cause to be made, all changes with the Registrar that are reasonably necessary to effect such assignment.
7.4.3 Transfer of Domains (when available). If you use Lycos Domains to transfer a Domain Name to the Registrar, you will be required to extend your existing registration for one year from the date your existing registration is set to expire, provided that the total unexpired term of a registration does not exceed 10 years. This additional year applies regardless of the period remaining on your current registration. You will not lose any of the time remaining on your current registration
8. Termination of Services.
8.1 We may terminate the Lycos Services and this Agreement at any time under the following circumstances: (i) if you fail to make a payment when due; (ii) if you violate this Agreement, the Lycos Network General Terms of Service, the Registrar Terms and Conditions, or any rules or guidelines posted on the web pages associated with the Lycos Services for which you are registering; (iii) if Lycos determines in its sole discretion that any Content, your Web Site or any Domain Name violates this Agreement, the Lycos Network General Terms of Service, the Registrar Terms and Conditions, or any rules or guidelines posted on the web pages associated with the Lycos Services for which you are registering; (iv) if Lycos determines in its sole discretion that any Content, your Web Site or any Domain Name violates any law, regulation or the rights of any third party; (v) if Lycos receives a notification, including a notification pursuant to the Digital Millennium Copyright Act, alleging that any Content or your Web Site violates the Copyright Act; or (vi) for any other reason in Lycos's sole discretion.
8.2 You may terminate the Lycos Services and this Agreement at any time through your account preferences page (or its successor).
8.3 If you terminate your service prior to the end of your current service time length (whether monthly or yearly), then your service will end at the end of that service time length or, if we bill your account on a period basis, at the end of the period in which you terminated. Unless otherwise provided by law or this Agreement, you will not be refunded a pro-rata amount or provided a pro-rata credit if you terminate your service prior to the end of your current service time length or if Lycos terminates your service pursuant to Section 8.1 (i)-(v) above. Our cancellation of your service will not alter your obligation to pay all charges made to your billing account. If we cancel your service in its entirety without cause prior to the end of your current service time length, then we will refund to you on a pro-rata basis the amount of payments that you have made corresponding to the portion of your service time length remaining at the time of our cancellation.
8.4 In the event of any notification or complaint pursuant to the Digital Millennium Copyright Act or any other law, Lycos shall be under no obligation to obtain any counter notification or response from you before termination.
9. Representations and Warranties.
You make the following representations and warranties:
9.1 That you are 18 years of age or older and that you or that a child under your supervision between the ages of 13 and 17, if the Lycos Services for which you are registering or subscribing are made available to children, will be the person using the Lycos Services pursuant to this Agreement.
9.2 To the extent that you are a corporation, you represent and warrant that you (i) are duly organized and validly existing under the laws of your state of incorporation, (ii) have full corporate power and authority to execute, enter into, and deliver this Agreement, and (iii) have full corporate power and authority to carry out your obligations hereunder.
9.3 That the information you provide to Lycos when registering for the Lycos Services is true, complete, and accurate and that you will immediately update such information should it become out of date.
9.4 That, in connection with the Lycos Services, you will comply with all applicable laws and regulations.
9.5 That Content, your Web Site and any Domain Name (i) complies with all applicable laws and regulations, (ii) does and will not violate, infringe, or dilute the patent, copyright, literary, privacy, publicity, trademark, service mark, trade secret or any other personal or property right of any person, and (iii) does not and will not violate any legal rights of any person or entity.
9.6 That your use of the Lycos Services will not violate any contractual commitment of yours.
10. Representations and Warranties Relating to Domain Names.
10.1 You represent that you are authorized by the administrative contact of the registrant to request the registration, renewal or transfer of a Domain Name.
10.2 Registration of .us Domain Names. If you are registering a .us Domain Name, you represent and warrant that you have a bona fide presence in the United States on the basis of real and substantial lawful connections with, or lawful activities in, the United States of America. In addition, you represent and warrant that you satisfy the provisions of either Section 10.2.1, Section 10.2.2, or Section 10.2.3 below.
10.2.1 You are a natural person (i) who is a United States citizen, (ii) who is a permanent resident of the United States of America or any of its possessions or territories, or (ii) whose primary place of domicile is in the United States of America or any of its possessions.
10.2.2 You are a United States entity or organization that is (i) incorporated within one of the fifty (50) U.S. states, the District of Columbia, or any of the United States possessions or territories or (ii) organized or otherwise constituted under the laws of a state of the United States of America, the District of Columbia or any of its possessions or territories (including a federal, state, or local government of the United States or a political subdivision thereof, and non-commercial organizations based in the United States).
10.2.3 You are a foreign entity or organization that has a bona fide presence in the United States of America or any of its possessions or territories.
10.3 Registration of .name Domain Names. If you are registering a .name Domain Name, you represent and warrant that the name you register is either (i) your legal name, (ii) a name by which you are commonly known, (iii) the legal name of a fictional character to which you own the trademark or service mark rights, or (iv) the name by which a fictional character, to which you own the trademark or service mark rights, is commonly known.
10.4 Registration of .biz Domain Names. If you are registering a .biz Domain Name, you represent and warrant that you will use, or intend to use, such Domain Name primarily for bona fide business or commercial purposes. The phrase "bona fide business or commercial use" means the bona fide use or bona fide intent to use the Domain Name or any content, software, materials, graphics, or other information thereon, to permit Internet users to access one or more host computers through the DNS: (a) to exchange goods, services, or property of any kind, (b) in the ordinary course of trade or business, or (c) to facilitate (i) the exchange of goods, services, information, or property of any kind, or (ii) the ordinary course of trade or business. Registering a Domain Name sole for the purposes of selling, trading or leasing the Domain Name for compensation or the unsolicited offering to sell, trade or lease the Domain Name for compensation shall not constitute a "bona fide business or commercial use" of that Domain Name.
10.5 Transfer of Domain Names. If you are transferring a Domain Name to the Registrar from another registrar, you represent and warrant that you are the holder of the Domain Name registration and that you have the authority to initiate the transfer of the Domain Name to the Registrar.
11. Privacy.
You agree that you have reviewed the Lycos Network Privacy Policy (located at the URL info.lycos.com/resources/privacy-policy) and agree to its terms. Notwithstanding the foregoing, you acknowledge that information you provide in connection with the Lycos in conjunction with Lycos Domains will be distributed to the Registrar and its agents, to the appropriate domain name registry or registries, and to third parties and the general public as described in the Registrar Terms and Conditions.
12. Changes.
Lycos reserves the right to modify the Lycos Services from time to time, for any reason, and without notice, including the right to terminate the Lycos Services. Lycos reserves the right to modify this Agreement from time to time, without notice. Please review the posted Agreement periodically so you will be apprised of any changes.
13. Disclaimer of Warranties.
THE LYCOS SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES ARE HEREBY DISCLAIMED. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED IN CONNECTION WITH THE LYCOS SERVICES ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY OF ANY NATURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LYCOS DISCLAIMS ALL EXPRESS, IMPLIED, AND/OR STATUTORY WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE LYCOS SERVICES, AS WELL AS ANY WARRANTIES THAT THE LYCOS SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. LYCOS SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF THE CONTENT OR YOUR WEB SITE. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
14. Limitation of Liability.
LYCOS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF LYCOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT SHALL LYCOS BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE RELEVANT LYCOS SERVICES DURING THE THREE MONTHS PRECEDING ANY INCIDENT THAT IS THE SUBJECT OF COMPLAINT OR ANY TERMINATION. THESE LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE LYCOS SERVICES, FROM RELIANCE ON THE LYCOS SERVICES, FROM INABILITY TO USE THE LYCOS SERVICES, FROM LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF THE CONTENT OR YOUR WEB SITE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE LYCOS SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS TO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to you.
15. Indemnity and Release.
You agree to indemnify Lycos and its parents, subsidiaries, affiliates, officers, and employees and hold them harmless from any and all claims and expenses, including attorney's fees, arising from: (a) the Content, your Web Site or any Domain Name, (b) your use or misuse of the Lycos Services, (c) any alleged violation of this Agreement, the Lycos Network General Terms and Conditions, any rules or guidelines posted on the web pages associated with the Lycos Services for which you are registering, the Registrar Terms and Conditions (if you are registering for Lycos Domains), or the rights of others or any law or regulation; or (d) from any person's use of any account or password you maintain with any portion of the Lycos Network, regardless of whether such use is authorized by you.
16. Arbitration, Governing Law and Forum for Disputes.
16.1 All legal issues arising from or related to the use or misuse of the Lycos Services shall be construed in accordance with, and all questions with respect thereto shall be determined by, the laws of the Commonwealth of Massachusetts applicable to contracts entered into and wholly to be performed within said state. Any controversy or claim arising out of or relating to this Agreement or any user's use or misuse of the Lycos Services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Boston, Massachusetts, and judgment on the arbitration award may be entered into in any state or federal court in Massachusetts having jurisdiction thereof. Any party seeking temporary or preliminary injunctive relief may do so in any state or federal court in Massachusetts having jurisdiction thereof. Except as set forth above, the state and federal courts of Massachusetts shall be the exclusive forum and venue to resolve disputes arising out of or relating to this Agreement or any user's use or misuse of the Lycos Services, and you hereby consent to personal jurisdiction and venue in any state or federal court in Massachusetts in connection with any controversy or claim arising or relating to this Agreement or your use or misuse of the Lycos Services.
16.2 If you are registering for Lycos Domains, notwithstanding anything to the contrary in Section 16.1, you agree that you will abide by the Uniform Domain Name Dispute Resolution Policy and any other mandatory dispute resolution policy (the "Dispute Policies") in connection with domain name disputes. More information about the Dispute Policies can be found in the Registrar Terms and Conditions. We do not, and will not, participate in the administration or conduct of any proceeding before an administrative panel convened pursuant to the Dispute Policies. In addition, we will not be liable as a result of any decisions rendered by such administrative panel.
17. Force Majeure.
In the event that Lycos is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss or fluctuations in heat, light, or air conditioning, then Lycos's performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
18. No Resale, Assignment, or Sublicensing.
You agree not to resell, assign, sublicense, otherwise transfer, or delegate your rights or obligations under this Agreement without the prior express written authorization of Lycos.
19. Limitation of Actions.
YOU AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OR MISUSE OF THE LYCOS SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR WILL FOREVER BE BARRED.
20. Relationship of Parties.
Lycos and its users are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party pursuant to this Agreement has authority to enter into agreements of any kind on behalf of the other, and neither party shall be considered the agent of the other.
21. Non-Waiver and Separability.
Lycos's failure to exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision. If a court or arbitrator of competent jurisdiction holds that any provision of this Agreement is invalid, the parties nevertheless agree that the court or arbitrator should endeavor to give effect to the parties' intentions as reflected in the provision, and agree that the other provisions in this Agreement remain in full force and effect.
22. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
23. Entire Agreement.
This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter contained in these terms and conditions and merges all prior discussions between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein.
24. Legal Notices.
All legal notices or communications pursuant to this Agreement shall be deemed delivered upon receipt by the party to whom such communication is directed, at the following addresses: (a) if to Lycos, such notices shall be addressed to
General Counsel
Lycos, Inc.
177 Huntington Ave Ste 1703 #60001
Boston, MA 02115-3151
with copy to:
Wrobel Schatz & Fox
1040 Avenue of the Americas, 11th Floor
New York, NY 10018
and (b) if to user, such notices shall be addressed to the electronic mail address provided by user upon registration. It shall be the user's sole obligation to maintain a current electronic mail address in his or her registration information. In the event that the user fails to supply an accurate working electronic mail address or fails to update such information after changing electronic mail addresses, all notices to the user shall be deemed to have been received within one (1) day after transmission or attempted transmission to the address supplied by the user.