Website Terms of Service
Last updated: November 14, 2014
These ESE Website Terms of Service (this “Website TOS”) governs all access to and use of website(s) owned by ESE Holdings, LLC (“ESE”) including without limitation the website located at www.esenetworks.com (individually and collectively, the “Website”). By having access to and/or by using the Website, You (as defined below) agree, without limitation or qualification, to be bound by and to comply with this Website TOS. ESE RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO ALTER AND/OR UPDATE THE WEBSITE AND/OR THIS WEBSITE TOS AT ANY TIME WITH OR WITHOUT NOTICE. BY CONTINUING TO USE THE WEBSITE AFTER ANY SUCH CHANGES, YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT ESE SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES. YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL USES OF THE WEBSITE ARE FURTHER SUBJECT TO ESE’S PRIVACY POLICY LOCATED AT WWW.ESENETWORKS.COM/PRIVACYPOLICY (“PRIVACY POLICY”) WITH RESPECT TO PERSONAL INFORMATION THAT YOU MAY VOLUNTARILY DISCLOSE VIA THE WEBSITE WITH RESPECT TO ANY CONTENT THAT YOU MAY POST AND/OR UPLOAD INTO THE WEBSITE, WHICH IN SOME INSTANCES YOU MAY BE PERMITTED TO DO IN ESE’S SOLE DISCRETION, WHICH MAY BE UPDATED FROM TIME TO TIME BY ESE WITH OR WITHOUT NOTICE.
1. Definitions. 1.1 “Content” means any and all static images, audio and/or video materials, text (including without limitation any comments, inquiries, advice and/or requests), images, logos, artwork, graphics, pictures, advertisements, sound and any intellectual property contained in any of the foregoing that You upload or otherwise provide to ESE and/or which You view in connection with the Website. For clarity, Content as defined and used herein relates solely to Content that You provide in connection with or related to the Website and does not relate to content provided by ESE in connection with the Website nor does it relate to the term Content as such term may be defined and/or utilized in any separate written agreement executed by and between You and ESE pursuant to which you pay for services offerings (which shall be governed instead by such other agreement with respect to such services offerings). IN NO EVENT WILL YOU UPLOAD OR OTHERWISE PROVIDE ESE WITH CONTENT OR LINKS THAT CONTAIN PERSONALLY IDENTIFIABLE INFORMATION OF YOU AND/OR OF ANY THIRD PARTY; PROVIDED, HOWEVER, THAT YOU MAY PROVIDE ESE WITH YOUR OWN NAME AND EMAIL ADDRESS IF YOU ELECT TO CONTACT ESE VIA EMAIL OR OTHERWISE BY OR THROUGH THE WEBSITE. AS USED HEREIN, THE TERM “PERSONALLY IDENTIFIABLE INFORMATION” MEANS INFORMATION CONTAINING THE SPECIFICS OF WHO AN INDIVIDUAL IS THAT MIGHT ENABLE SOMEONE TO IDENTIFY, CONTACT, OR LOCATE SUCH INDIVIDUAL. 1.2 “Links” means links to Yours or some third party website for which you have permission from such third party to use. 1.3 “Suppliers” means third party licensors, subcontractors and/or vendors that supply some or all portions of the Website. 1.4 “You” or “Your” means the individual, corporation or other entity that accesses and/or uses the Website or any portion (including without limitation any webpage) thereof.
2. Content and Links. ESE may, but is not required, to provide You with login credentials to permit You to upload Content and/or Links on certain specified pages of the Website. With respect to Content and Links that You provide to ESE in connection with your access to and/or use of the Website, You hereby grant ESE a worldwide, royalty-free, cost-free, non-exclusive, irrevocable, transferable right and license to (i) utilize for any purposes in ESE’s sole discretion all Content and Links that You provide to ESE, and (ii) to modify, edit and/or delete Content, and may delete Links, all in ESE’s sole discretion without notice to You. For clarity, the foregoing use rights are limited to Content and Links that You provide in connection with or related to the Website and does not relate to Content (or related use rights or restrictions) as such term may be utilized in any written agreement executed by and between You and ESE pursuant to which you pay for services offerings (which shall be governed instead by such other agreement with respect to such services offerings). You are solely responsible for all matters arising out of or in connection with the Content and Links including, without limitation, ensuring that the Content and Links do not contain Prohibited Content (as defined in the AUP), and You agree to hold harmless and indemnify ESE and its Suppliers for any third party claims based on Content and/or Links that You provide to ESE. Under no circumstances will ESE or its Suppliers be liable in any way for Content or Links, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content and/or Links, or for any loss or damage of any kind incurred as a result of the use or publication of any Content and/or Links. You acknowledge that neither ESE nor its Suppliers will be responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content and/or Links, and that ESE, and its Suppliers assume no responsibility to edit, review, or oversee Content and/or Links submitted, uploaded, distributed, retrieved, or viewed in connection with use of thereof. You agree that you must immediately notify ESE of any actual or suspected infringement of third party intellectual property rights and/or any actual or suspected violations of third party privacy or other rights related to Content provided by You. You expressly acknowledge and agree that ESE may, but is not required to, preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonable or necessary to: (i) comply with legal process; (ii) enforce this Website TOS; (iii) respond to claims that any Content violates the rights of third parties; and/or (iv) protect the rights, property, or personal safety of ESE, its Suppliers, users and/or the public.
3. Third Party Websites/Offerings. Any third party products, content, services or links displayed by ESE on or through the Website are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Website may in some cases contain links to third party websites (“Third Party Websites”) that may be subject to their own, separate terms of use or similar agreements, and You assume all risks and liabilities associated with the use of any Third Party Websites and related products, services and/or other offerings. For clarity, the term Third Party Websites (that may be provided by ESE on the Website) used in this Section 2.2 shall not be confused with or interchanged with the definition or use of the term Links (that may be provided by You) in this Website TOS. In no event will ESE be responsible or liable for any failure or inability to access Third Party Websites.
4. Tracking Activities. Portions of the Website (including the video players located within the Website) contain software to track and capture Your activities when visiting the Website to assist ESE in optimizing the Website experience and for other purposes in ESE’s sole discretion. Your rights related to such activity are described in the Privacy Policy.
5. Website Ownership; Feedback. ESE and its Suppliers own all right, title and interest in and to the Website (including without limitation all technology and content therein) including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. Any and all rights not expressly granted by ESE are reserved to ESE and its Suppliers. ESE is not required to accept unsolicited feedback about the Website and/or ESE’s products and/or services (the foregoing, individually and collectively, “Feedback”). If You do provide Feedback to ESE, i, then ESE shall own all rights in and to such Feedback and any derivative technologies, methodologies, compilations and/or any other resultant uses based on or developed through or by using such Feedback and You shall take all necessary actions that may be requested by ESE to perfect ESE’s rights in and to such feedback.
6. ESE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE WEBSITE (OR ANY PORTION THEREOF) FOR YOUR PURPOSES, THAT THE USE OF THE WEBSITE SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE WEBSITE SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY SERVICES, TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE WEBSITE (AND ALL PORTIONS THEREOF) ARE PROVIDED “AS IS” BY ESE AND/OR ITS SUPPLIERS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE WEBSITE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND ESE AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY SUCH DELAYS, OR OTHER FAILURES, OR ANY DAMAGES RESULTING THEREFROM. THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL ESE OR ITS SUPPLIERS OR ANY OF THEIR SUCCESSORS IN INTEREST BE LIABLE TO YOU BASED ON YOUR USE OR MISUSE OF AND/OR YOUR RELIANCE ON THE WEBSITE (OR ANY PORTION THEREOF) INCLUDING ANY SUPPORT ADVICE THAT MAY BE PROVIDED IN CONNECTION THEREWITH (PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT DIMINISH ANY SUPPORT OBLIGATIONS THAT ESE MAY HAVE TO YOU UNDER ANY SEPARATE WRITTEN AGREEMENT EXECUTED BY YOU AND ESE, WHICH SHALL BE GOVERNED BY SUCH OTHER AGREEMENT). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT SHALL ESE OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS PROFITS, BUSINESS INFORMATION, GOODWILL, USE, DATA, OR ANY OTHER INTANGIBLE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE WEBSITE (OR ANY PORTION THEREOF), OR YOUR USE OF OR INABILITY TO USE THE WEBSITE (OR ANY PORTION THEREOF), EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) YOUR EXCLUSIVE REMEDY AND ESE’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS COMBINED RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE WEBSITE AND/OR THIS WEBSITE TOS FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU UP TO A MAXIMUM OF ONE HUNDRED DOLLARS ($100 USD). THIS SECTION SHALLY APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. Governing Law. You understand and agree that this Website TOS shall in all cases be governed by the laws of the State of Georgia as such laws apply to contracts between Georgia residents performed entirely within Georgia, without regard to conflict of law provisions. Any action or proceeding arising from or relating to the Website and/or this Website TOS may only be brought in the State and Federal courts located in Georgia and each party irrevocably submits to such exclusive jurisdiction and venue.
9. General Terms. The Website is of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which You use the Website. This Website TOS and all URLs incorporated herein constitute the complete and exclusive agreements between You and ESE with respect to its subject matter. If any provision of this Website TOS is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This Website TOS constitutes the entire agreement between You and ESE, and supersedes any and all prior written or oral agreement or understanding relating to the same subject matter. All waivers must be made in writing and the failure of You or ESE to enforce any right or provision in this Website TOS shall not constitute a waiver of such right or provision. Any waiver on one occasion shall not imply or constitute a waiver on any other occasion. ESE shall not be responsible for any failure to perform under this Website TOS to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like. ESE may transfer or assign the Website and/or this Website TOS in its sole discretion without notice to You. You may not transfer or assign this Website TOS or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of ESE in its sole discretion (which may be withheld for any reason or no reason) and any such assignment shall be null and void from the beginning. This Website TOS, shall inure to the benefit of and be binding upon ESE’s or Your respective permitted successors and assigns.