NETMECHANIC TERMS OF SERVICE

The NetMechanic Service ("Service"), owned and operated by NetMechanic, Inc. ("NM"), is provided to you ("Member") under the terms and conditions of these NetMechanic Terms of Service ("NTOS"), as amended by NM from time-to-time as set forth herein, and any operating rules and policies that may be published by NM. The NTOS comprises the entire agreement between Member and NM and supersedes all prior agreements between the parties regarding the subject mater contained herein. BY CLICKING THE "I ACCEPT" BUTTON, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE NTOS.

2. DESCRIPTION OF SERVICE

By completing the registration for the Service, Member creates a Service account. Member may then use the account to subscribe one or more URLs to the Service. Specific functions to be performed on these URLs by the Service will depend on the service package chosen by Member.

Member must: (1) supply information required to set up his account and URL(s) to be serviced; and (2) provide for own access to the World Wide Web and pay any telephone service fees associated with such access. If any information provided by Member is inaccurate, NM retains the right to terminate Member's membership and right to use the Service.
 

3. MEMBER REPRESENTATIONS

Member affirms, for any URL tested by the Service through his account, that he is the legal owner of the URL, an employee of the legal owner of the domain with consent to use the Service or has otherwise obtained express written consent from the legal owner of the domain. Member expressly agrees to indemnify NM from any claims by a third party arising from use of the Service in testing a URL.
 

4. RIGHT OF ACCESS

Member grants NM permission to download files from any URL monitored by the Service as part of Member's account services. Member understands that operation of the Service will involve repeated access by the Service to any URL monitored.
 

5. COMPENSATION FOR SERVICE

In consideration of this Service, Member agrees to pay NM a nonrefundable subscription fee for each URL serviced. Subscription fees are determined separately for each URL in Member's account, with fees being established at the time URL subscription is entered. Subscription fees are dependent upon the Service package selected.

Unless prior written arrangement has been made between Member and NM, Member shall be billed at the beginning of each subscription period. Bills are due within 30 days of posting.

6. DISCLAIMER OF WARRANTIES

MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE OR ANY COMPLIMENTARY SERVICES PROVIDED BY NM IS AT MEMBER'S SOLE RISK. THE SERVICE AND ANY COMPLIMENTARY SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF PROPRIETARY RIGHTS.

NM MAKES NO WARRANTY THAT THE SERVICE OR COMPLIMENTARY SERVICES WILL MEET YOUR REQUIREMENTS; OR THAT THE SERVICE OR COMPLIMENTARY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES NM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR COMPLIMENTARY SERVICES; OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR COMPLIMENTARY SERVICES; OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.

NO INFORMATION OBTAINED FROM NM OR FROM THE SERVICE OR COMPLIMENTARY SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE NTOS.

7. MEMBER ACCOUNT, PASSWORD, AND SECURITY

As part of account setup, Member will select an account name and password. Member is entirely responsible if Member does not maintain the confidentiality of the password or account. If Member learns that this password has been compromised, Member must notify NM immediately.

8. MODIFICATIONS TO TERMS OF SERVICE

NM reserves the right to modify the terms and conditions of the NTOS at any time. If you do not agree to be bound by any changes, you must terminate your use of the Service in accordance with Section 12.

9. MODIFICATIONS TO SERVICE

NM reserves the right to modify or discontinue the Service with or without prior notice to Member. NM shall not be liable to Member or any third party should NM exercise its right to modify or discontinue the Service.

10. COMPLEMENTARY SERVICE

NM offers from time to time Complementary Services free of charge to Member. NM reserves the right to modify or discontinue the Complementary Services with or without prior notice to Member. NM shall not be liable to Member or any third part should NM exercise its right to modify or discontinue the Complimentary Services. No subscription refunds shall be given upon discontinuation of any Complementary Service. Current Complimentary Services include the Overture.com Keyword Popularity tool.

11. 508 COMPLIANCE TOOL

Member's Service package may include a Section 508 Compliance Tool. Member expressly acknowledges and agrees that the use of the Section 508 Compliance Tool is subject to the Disclaimer of Warranties and Limitation of Liability set forth herein. NM does not represent, warrant or otherwise guarantee that Member's use of the Section 508 Compliance Tool or the Service will in fact result in compliance with Section 508 of the Rehabilitation Act Amendments of 1998. Member retains the risk that the URL(s) monitored by the Service may not be compliant with Section 508.

12. TERMINATION

Either Member or NM may terminate the Service with or without cause at any time and effective immediately and without prior notice. Termination shall be accompanied by a written or email notice to the other party. Notices of termination initiated by Member and sent via email shall be addressed to either webmaster@netmechanic.com or user support. NM shall not be liable to Member or any third party for termination of the Service.

Should Member object to any terms and conditions of the NTOS or any subsequent modifications hereto or become dissatisfied with the Service in any way, Member's only recourse is to immediately: (1) discontinue use of the Service; (2) terminate Service membership; and (3) notify NM of termination.

Upon termination of the Service, Member's right to use the Service immediately ceases. Member shall have no right and NM shall have no obligation thereafter to forward any monitoring data associated with Member's account. Upon termination of the Service, Member remains liable for all subscription fees. In no event shall Member be entitled to a refund of subscription fees or any portion thereof.

13. SUSPENSION OF SERVICE

NM reserves the right to suspend the Service with or without cause at any time and effective immediately. Suspension will be accompanied by written or email notice sent to the Point of Contact listed in Member's account information.

14. NO RESALE OF SERVICE

Member's right to use the Service is personal to Member. Member may be an individual, a corporation, or other legal entity. Member agrees not to resell or make any commercial use of the Service or to assign any rights under this NTOS without the express written consent of NM.

15. LIMITATION OF LIABILITY

NM SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGE RESULTING FROM THE USE OF THE SERVICE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR RESULTING FROM UNAUTHORIZED USE OF THE MEMBER'S ACCOUNT OR ACCOUNT INFORMATION OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES SHALL NM'S TOTAL LIABILITY PERTAINING TO THE SERVICE, WHETHER IN TORT, CONTRACT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES PAID BY MEMBER HEREUNDER.

16. INDEMNIFICATION

Member agrees to indemnify and hold NM, its officers, employees and supporting contractors, harmless from any claim or demand, including attorney's fees, made by any third party due to or arising out of Member's use of the Service, the violation of this NTOS by Member, or the infringement by Member, or other user of the Service using Member's computer, of any property or other right of any person or entity.

17. PROPRIETARY OF RIGHTS TO CONTENT

Member acknowledges that the Service and its content, including but not limited to text, software, graphics or other material presented to Member as part of the Service ("Content") by NM, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws; therefore, Member is only permitted to use this Content as expressly authorized by NM. Member may not copy, reproduce, distribute, or create derivative works from this Content without written authorization from NM.

18. LAWS

The NTOS shall be governed by and construed in accordance with the laws of the state of Alabama, excluding its conflict of law provisions. Member and NM agree to submit to the exclusive jurisdiction of the state of Alabama.

Member and NM agree to submit to the exclusive jurisdiction of the state of Alabama.

If any provision of the NTOS is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.

NM's failure to exercise or enforce any right or provision of the NTOS shall not constitute a waiver of such right or provision unless acknowledged and agreed to by NM in writing. The prevailing party shall be entitled to recover its reasonable attorneys' fees and costs arising from any action to enforce or arising out of this NTOS.

Member and NM agree that any cause of action arising out of or related to this Service must be filed in the Circuit Court of Madison County Alabama within six (6) months after the cause of action accrues; otherwise it is agreed that such cause of action is permanently waived and the parties charged shall be forever released of all liability.

The section titles of the NTOS are solely used for convenience of the parties and have no legal or contractual significance.