Constele Inc. Service Agreement

This document was last updated on 7 June 2010.

 

INTRODUCTION

This is an Agreement between "You" and Constele, Inc. ("Constele"), a Panamá limited liability corporation. In this Service Agreement ("Agreement"), "You" and "Your" shall refer to Yourself as the customer and Your agents, including each person listed in Your account information as being associated with Your account, while "we", "us" and "our" refer collectively to Constele. This Agreement explains the mutual obligations between You and Constele based upon Your purchase of services through Constele. By purchasing a service through Constele, You agree to establish an account with us and to be bound by the terms of this Agreement for transactions entered into by You or on Your behalf by anyone acting as Your agent. You also agree to be bound by the terms of this Agreement for transactions entered into by anyone who uses Your account with Constele, whether or not the transactions were on Your behalf and whether or not the transactions were with Your permission. You agree that Constele’s acceptance of any registration, application and/or transaction request made by You for services or products provided by Constele will occur in Ciudad de Panamá, Panamá.

GENERAL PROVISIONS
1. FEES & PAYMENT.

As consideration for the services and products ("services") You purchase from Constele, You agree to pay Constele the applicable fees set forth on our web site at the time of Your purchase, or, if applicable, upon receipt of Your invoice from Constele. You agree to pay Constele at the time service is provided. You agree that all payments of fees for Constele services shall be made in United States dollars. You agree that any payments sent in currency other than United States dollars will be returned to You at Your expense.  You further agree to pay all fees by providing a valid credit card, or PayPal or Moneybookers account information, for immediate charge by Constele, or by wire transfer, or any other means specified on our web site at the time of Your purchase. You agree that all fees are due immediately and are non-refundable, except as otherwise expressly stated in this Agreement. You acknowledge that You have the option to "pre-pay" for Constele services, by depositing funds using one of the payment methods described herein, for use as account credit in the purchase of Constele services.  You agree that any and all account credits and/or "pre-payments" shall be non-refundable and shall not be redeemed for cash, except as otherwise expressly stated in this Agreement.  If for any reason Constele is unable to charge Your credit card, debit Your PayPal or Moneybookers account, process your bank wire or draw from Your account credit, for the full amount You owe to Constele for the services provided by Constele, You agree that Constele may pursue any and all available remedies in order to enforce payment, including, but not limited to, immediate cancellation without notice to You of any service provided by Constele to You.  You understand and agree that Constele will charge You a fee for any bounced check.  The fee for a bounced check is currently $20 and is subject to change under this Agreement, as specified on our website, or as specified in our notices to You at the time of handling Your bounced check.  You understand and agree that if Your payment by wire transfer is below the minimum amount for a wire transfer as set forth on our web site – currently $500 – Constele will charge You a processing fee, which is currently $15.  You further acknowledge that any non-United States based wire transfer may be subject to fees from intermediary banks. You agree that Constele reserves the right to charge You, by charging to the credit card or web-based payment service account You have on file with Constele or by sending You an invoice, additional service fees for administrative services above and beyond the scope of customer service issues ordinarily and reasonably handled by email, or for handling disputes that require legal services.  You understand and agree that Constele has no obligation to commence services to You until we receive and successfully process Your payment.

2. TERM OF AGREEMENT.

The term of this Agreement shall continue in full force and effect as long as You have any customer account with Constele.

3. TERM OF SERVICE; RENEWAL OF SERVICES.

Unless otherwise specified on our web site or herein, each Constele service is for a one-year initial term, and is renewable thereafter for successive one to ten-year terms, as set forth during the renewal process or on our web site.  Any renewal of Your services with Constele is subject to our then-prevailing terms and conditions.  You acknowledge and agree that the renewal price may be higher or lower than the price You paid for the then-current term of service.  You acknowledge that it is Your sole responsibility to keep Your own records and to maintain Your own reminders regarding when Your services are set to expire.  As a convenience to you, and not as a binding commitment, Constele may notify You via an email message or via Your account when renewal fees are due.  If for any reason You do not complete timely payment of fees in connection with Your renewal transaction, Your services will expire or be cancelled.  If You select automatic renewal of Your services, Constele may attempt to renew the services a reasonable time before expiration, for a term equivalent to Your original registration, at our then-current prices, provided Your payment information is available and up to date.  If, for any reason whatsoever, Constele is unable to successfully process any automatic renewal transaction, and You fail to remedy the problem, Your services will expire.  You agree that You are solely responsible for the payment information You provide to Constele and must promptly notify Constele of any changes or updates to Your payment information (e.g., change of expiration date or account number).  You acknowledge that Constele is not required to, but that we may, contact You to update Your payment information in the event that an attempted transaction is not processed successfully.  You understand and agree that Constele accepts no responsibility and shall have no liability to You or any third party in connection with the renewal of services, including, but not limited to, any failure or errors in renewing such services, or losses or damages related to any cancellation, discontinuation, expiration, or termination of services as a result of such failures or errors in renewing such services.  You understand and agree that You bear the sole responsibility of renewing Your services with Constele by logging on to Your Constele account and completing the renewal process, or by taking whatever actions are required or requested by Constele in order to complete the renewal process.  In all cases, domain name renewal transactions are final, irreversible, non-refundable, and ineligible for account credit.

4. ACCURACY OF INFORMATION; UPDATING INFORMATION.

You agree to provide true, accurate, current, and complete information about You as required by the registration and/or application process  ("Account Information"). You agree to maintain and update Your Account Information when purchasing services, in order to keep the information accurate, current, and complete. You agree to notify Constele within five (5) business days when there is a change to any of Your Account Information. You agree to respond within five (5) business days to any inquiries Constele may make to determine the validity of any information provided by You. You understand that Constele relies on the Account Information to send You important information and notices regarding Your account and our services. Failure by You for any reason to provide Constele with accurate and reliable information at any time, or to timely respond to any inquiries to verify the information You provide, shall be considered a material breach of this Agreement.

5. PRIVACY; USE OF INFORMATION.

You agree to be bound by Constele’s privacy policy that is incorporated herein by reference, and that is located on our web site at http://www.constele.com/privacy_policy.php.  You agree that Constele, in its sole discretion and at no liability to You for any resulting loss or damage, may modify our privacy policy. Revised privacy policies will be posted on our web site at the above link. You agree that, by using our services or maintaining any domain name registered through Constele, after modifications to our privacy policy have become effective, You have agreed to these modifications. You agree to periodically review our web sites to make Yourself aware of any such revisions or changes. You agree that, if You do not agree to any modification, You may terminate this Agreement without refund or credit to You of any fees paid by You to Constele.

 

6. ACCOUNT SECURITY.

To access or use Constele’s services or to modify Your account, You may be required to establish an account and obtain a user name, account ID and/or number, and/or password. You authorize Constele to process any and all account transactions initiated through the use of Your password or other account information. You agree that You are solely responsible for maintaining the confidentiality of Your password and account information. You agree to immediately notify Constele of any unauthorized use of Your password and/or Your account, or any other breach of security.  You agree to participate in any and all security features made available to You by Constele, including but not limited to Secret Questions, locking features, or other security mechanisms, by providing complete, accurate, and truthful information.  You agree that, if You participate in a security mechanism that results in a charge, fee, and/or liability imposed by a third party (e.g., text messaging charges from a mobile telephone provider resulting from the use of Constele’s Anti-Theft Feature), You are solely responsible for such charges, fees, and/or liabilities.  You also agree that You are solely responsible for any and all charges, liabilities, and/or activities that occur on Your account, whether initiated by You, by others on Your behalf, or unauthorized, or by any other means. You agree that in no event shall Constele be liable for any loss whatsoever that You may incur as a result of someone else using Your password, account, and/or account information, either with or without Your knowledge or consent.  Your further agree that You could be held liable for any losses incurred by Constele or another party due to someone else using Your password, account, or account information.  Constele specifically disclaims any liability for any activity occurring on Your account, whether authorized by You or not.  You agree that Constele may log off, delete, disable, or deactivate any account that is inactive for an extended period of time.  You understand and agree that, if You or any third party acting on Your behalf requests to have the email address associated with Your Constele account reset by Constele staff, You will pay Constele the applicable fee as stated on our web site.

7. RIGHT OF REFUSAL; CANCELLATION OF SERVICES; ACCEPTABLE USE POLICY.

You agree that Constele, in its sole discretion and without liability to You for any resulting loss or damages, may refuse to accept or may delete the registration, application and/or transaction request of any service You may purchase through Constele.  In the event Constele refuses or deletes Your registration, application and/or transaction request for a service through Constele within the times specified in the applicable sections of this Agreement, Constele may issue an account credit of any applicable fee(s) You have paid to Constele in connection with the registration being refused or canceled.

You further agree that Constele, in its sole discretion and without liability to You for any resulting loss or damages, may delete, suspend, cancel, terminate, or otherwise interrupt any and all services You may purchase through Constele, or Your customer account with Constele, at any time during the term of this Agreement, if such service or account is used in association with morally objectionable activities.

Morally objectionable activities include, but are not limited to, the transmission of unsolicited mail or "spam"; activities prohibited by the laws of the Panamá and/or foreign territories in which You conduct business; activities that promote unlawful behavior, such as hate crimes, terrorism, or child pornography; activities that are designed to or that effectively defame, slander, harass, embarrass, threaten, abuse, or harm third parties; activities that impersonate the identity of any third parties; activities that are harmful to minors in any way; activities that constitute fraud or that have a fraudulent purpose; activities that are designed to or that effectively infringe upon the copyright, trademark, trade secret, or other intellectual property rights of a third party; and activities that constitute or promote obscenity, profanity, indecency, tortuous behavior, racism, bigotry, hatred, vulgarity, harassment, invasion of privacy or publicity rights of a third party, or physical harm of any kind against any group or individual; or any other objectionable material or activity of any kind or nature as Constele in its sole discretion may determine.

You agree that any use of Your account with Constele, whether or not on Your behalf and whether or not with Your permission, in association with any morally objectionable activities shall constitute a material breach of this Agreement.  In the event that Constele deletes, suspends, cancels, terminates, or otherwise interrupts any service to You or Your customer account for use in association with morally objectionable activities, any and all fees paid to Constele shall be non-refundable and ineligible for account credit.

8. INTELLECTUAL PROPERTY.

Except as otherwise set forth herein, You agree that all rights, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, and software; and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Constele services identified herein ("Constele Intellectual Property Rights") are owned by Constele or its licensors, and you agree to make no claim of interest in or ownership of any such Constele Intellectual Property Rights.  You acknowledge that no title to the Constele Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in Constele’s or its licensors’ services, other than the rights expressly granted in this Agreement.  To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Constele and all right, title and interest in and to each such Derivative Work shall automatically vest in Constele.  Constele shall have no obligation to grant you any right in any such Derivative Work.

9. REPRESENTATIONS & WARRANTIES.

You agree and warrant that:  (i) You have all requisite power and authority to execute this Agreement and to perform Your obligations hereunder; (ii) You are of legal age to enter into this Agreement, or You are at least thirteen (13) years of age and have Your parents’ permission to apply for services hereunder; (iii) neither Your registration, application, and/or transaction request, nor use of any of Constele’s services, nor the manner in which You intend to use Constele’s services will directly or indirectly infringe the legal rights of a third party; and, (iv) You agree to comply with all applicable laws and regulations.  You further agree that Constele shall not be bound by any representations made by any third party who You may use to obtain services from Constele. You understand and agree that any statements of a general nature which appear in Constele’s promotional materials, including but not limited to its web site, emails, account notices, or advertisements, shall not bind Constele.

10. DISCLAIMER OF WARRANTIES.

You agree that the use of our services is solely at Your own risk, and that our services are provided on an "as is" and "as available" basis. WE 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. WE MAKE NO WARRANTY THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SERVICES OR AS TO THE CORRECTNESS, ACCURACY OR RELIABILTY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES WE PROVIDE. WE MAKE NO WARRANTY REGARDING ANY GOODS, SERVICES, OR PRODUCTS OBTAINED THROUGH THE USE OF OUR SERVICES OR THROUGH ANY TRANSACTION ENTERED THROUGH THE USE OF OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED, ACCESSED, OR OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS TO YOUR COMPUTER SYSTEM OR DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR DATA. YOU UNDERSTAND AND AGREE THAT ANY INFORMATION OR ADVICE YOU OBTAIN FROM US OR THROUGH THE USE OF OUR SERVICES DOES NOT CREATE ANY WARRANTY AND THAT YOU MAY NOT RELY ON SUCH INFORMATION AND ADVICE.

11. TERMINATION OF AGREEMENT.

You agree that, should You cancel or terminate this Agreement with Constele, You will not receive any refund or credit of any fees You may have paid to Constele, except as otherwise expressly stated herein. Should You elect to cancel or terminate this Agreement with Constele, You agree to provide at least thirty (30) days written notice to Constele in the manner prescribed in this Agreement.

You agree that Constele may terminate this Agreement or any part of its services at any time, and without notice to You, in the event of a breach of this Agreement or if termination is. You agree that Your failure to completely comply with the provisions of this Agreement or any rule or policy of Constele may constitute a material breach of this Agreement. Should Constele cancel, discontinue, or terminate Your account, this Agreement, or any services it provides to You as a result of any breach of this Agreement, no fees will be refunded or credited to You. Constele’s failure to notify You or act upon any possible breach by You, shall not excuse You from the breach and shall not constitute a waiver of Constele’s right to notify You or act upon such breach at a later time.

12. MODIFICATION.

You agree that, during the term of this Agreement, Constele may (1) revise the terms and conditions of this Agreement from time to time; and/or, (2) change the services it provides under this Agreement at any time. You agree to be bound by any such changes and revisions when such changes become effective. Any such changes or revisions shall become binding and effective thirty (30) days after posting of the revised Agreement on our web site or change to the services on our web site, or upon notification to You by email or United States mail. You agree to periodically review our web site to make Yourself aware of any such revisions or changes. If You do not agree with any revision or change to this Agreement, You may terminate this Agreement at any time by providing us with written notice, and You agree that any fees paid by You to Constele are non-refundable and ineligible for credit.

 

13. THIRD PARTY TRANSACTIONS.

Constele shall not be responsible for and shall have no liability with respect to any services or products purchased or obtained by You from a third party.

14. LIMITATION OF LIABILITY.

You agree that Constele’s entire liability, and Your exclusive remedy in law, in equity, or otherwise, in connection with any service provided to You by Constele under this Agreement and/or for any breach of this Agreement by Constele shall be limited to the amount of the fees You paid to Constele for the particular service during the term of this Agreement.  CONSTELE PROVIDES ITS SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.  CONSTELE SHALL NOT BE LIABLE IN ANY EVENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM, RELATED TO, OR ARISING OUT OF THE USE OR INABILITY TO USE ANY OF CONSTELE’S SERVICES OR FOR THE EXPENSE OF OBTAINING ALTERNATE SERVICES. To the extent that the laws of certain states do not permit the limitation or elimination of liability for certain types of damages, Constele’s liability shall be limited to the smallest amount permitted by law in such states.

 

15. INDEMNIFICATION TO CONSTELE.

You agree to release, indemnify, defend, and hold harmless Constele, and any of its contractors, agents, employees, officers, directors, shareholders, members, affiliates, and assigns from and against any losses, liabilities, claims, damages or costs, including reasonable attorneys’ fees and expenses, relating to or arising out of Your registration, application, transaction request, resale, or use of services provided by Constele and Your account with Constele, whether by You, Your agent, or anyone else, whether or not on Your behalf, and whether or not with Your permission. Should Constele be threatened with a lawsuit or receive notice of a filed or pending lawsuit by a third party, Constele may seek written assurances from You concerning Your promise to indemnify Constele. Your failure to provide such written assurances may be considered a material breach of this Agreement.  You agree that such indemnification obligation shall survive the termination or expiration of this Agreement.

16. SEVERABILITY.

If any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

17. NOTICES.

You agree that all notices concerning breach of this Agreement may be sent to the email address You provide to Constele or mailed by first class postage to the postal address You provide to Constele. Such notices shall be deemed delivered within five (5) days after the date sent. You agree that all other notices may be posted on our web site and shall be deemed delivered within thirty (30) calendar days of posting.

You agree that all notices from You to Constele shall be sent by email or by first class postal mail to the address provided on our web site, which shall be deemed delivered five (5) days after the date sent. In no event may notices be made by telephone.

You authorize Constele to notify You as our customer of information that we deem is of potential interest to You, including commercial emails, telephone calls, notices of changes, upgrades, new products and services, or other information pertaining to Your account.

18. WAIVER.

No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Constele. Waiver of any one provision of this Agreement by Constele shall not constitute a waiver of any other provision of this Agreement, and shall not affect our right to require performance, enforce, or seek all legally available remedies for breach of any other provision of this Agreement.

19. MERGER; ENTIRE AGREEMENT.

This Agreement, and any rules, policies, or documents incorporated by reference in this Agreement, including, but not limited to, the dispute resolution policy and the privacy policy, constitutes the complete, entire, and exclusive Agreement between You and Constele regarding our services. No other Agreements or understandings, whether written, oral, or by custom, habit, practice or policy, affect the scope or applicability of this Agreement.

20. HEADINGS.

The section headings in this Agreement are for the purpose of convenience only, and are not intended to and in no way define, describe, limit, expand, or construe the scope of any provision or its applicability.

21. FORCE MAJEURE.

Neither party shall be deemed in default or shall hold the other party responsible for any failure or delay in the performance of its obligations under this Agreement in the event of an Act of God, earthquake, flood, fire, storm, natural disaster, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section shall have given prompt written notice to the other party of such event within five (5) days within the occurrence of such event, and shall have taken all reasonably necessary steps to mitigate the effects of the event. Should the force majeure event persist for a period of more than thirty (30) days, Constele may at its option terminate this Agreement.

22. AGREEMENT TO BE BOUND.
By registering, applying, and/or requesting a service with Constele, or by using services provided by Constele, You acknowledge that You have read and agree to be bound by all terms and conditions of this Agreement and any rules, policies, or documents incorporated by reference.