General Terms and Conditions
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING THE SERVICE PROVIDER WEBSITE DESIGN SERVICE, DIGITAL MARKETING, MANAGED SERVICES, WEB HOSTING AND HARDWARE SERVICES, THE DOMAIN NAME REGISTRATION SERVICE, SUPPORT SERVICES, OR MARKETING RETAINER SERVICES.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
This Agreement is between SERVICE PROVIDER and CUSTOMER and applies to SERVICE PROVIDER’s provision of (i) the SERVICE PROVIDER Web Hosting and Hardware Services (includes but not limited to infrastructure, bandwidth, firewall, backup and telecommunications) (ii) the Support and Maintenance plans, (iii) the Domain Name Registration Service; (iv) Digital Marketing and Managed Services (includes but not limited to SEO, SEM), (v) professional website design (“Website Design Service”) and (vi) Marketing Retainer Services. The SERVICE PROVIDER Web Hosting and Hardware Services, the Support Services, the Domain Name Registration Service, the Website Design Service, the Digital Marketing and Managed Services and Marketing Retainer Services will be collectively referred to herein as “Services” and each will be a “Service”.
All sections in this Agreement apply to each of the Services. Service sections only applies to CUSTOMER if CUSTOMER signed up for or is utilizing those services. CUSTOMER agrees that verbal direction to install, develop or implement a Service is an accepted method to begin utilization of a service and billing of a service.
By establishing an account for any of the Services or using any of the Services, CUSTOMER agree to be bound by this Agreement and to use the Service(s) in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations along with the following policies and the applicable product agreements, which are incorporated herein by reference:
- TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which CUSTOMER subscribed to the SERVICE PROVIDER Services. This Agreement continues until the later date of termination of CUSTOMERS initial term of thirty six months. Term may be shorter only if specifically indicated in writing and signed by both parties. ALL Services with monthly fees will carry an initial term of thirty six months from the point of initial Service activation or a Service order renewal, which ever is dated the latest, unless otherwise indicated in a written document executed by both CUSTOMER and SERVICE PROVIDER. Sections 4, 5, 8, 9, 10, 11, 12, 13 and 14 of this Agreement will survive termination of this Agreement. Following the Initial Term, this Agreement shall automatically renew 30 days prior to the end of the Initial Term in an increment equal to the Initial Term which will effectively become the new Current Term unless and until terminated by either party in accordance with the notice provisions as set forth herein, and such notice of the party’s intent not to renew this Agreement is provided to the SERVICE PROVIDER more than thirty (30) days prior to the anniversary of the Initial Term or the Current Term and no sooner than thirty (60) days prior to the anniversary of the Initial Term or the Current Term.
- SUBSCRIPTION INFORMATION
To order and receive any of the Services, CUSTOMER acknowledges that CUSTOMER is 18 years of age or older and either (i) CUSTOMER has legal authority to enter into this Agreement or (ii) represent a corporation, partnership or other legal entity duly formed (and incorporated where applicable) in good standing and CUSTOMER has the legal authority and power to enter into this Agreement on behalf of such entity. CUSTOMER must provide SERVICE PROVIDER with a valid credit card, debit card or other SERVICE PROVIDER approved payment methods for the Services and CUSTOMER billing address. CUSTOMER represents that all information CUSTOMER provided during the subscription process is accurate and complete and that CUSTOMER will update such information with SERVICE PROVIDER should any of it change.
SERVICE PROVIDER reserves the right to verify the accuracy of the information CUSTOMER submit in connection with CUSTOMER subscription for the package CUSTOMER selected (“Package”) and CUSTOMER account and CUSTOMER consent to such verification. SERVICE PROVIDER also reserves the right to validate the payment method information CUSTOMER provide at subscription and account updates, including attempting up to a $1.00 authorization to CUSTOMERS credit card or debit card which is not actually billed.
SERVICE PROVIDER will charge fees according to the billing plan of the Package CUSTOMER selected or any Service utilized by CUSTOMER. SERVICE PROVIDER may accept or reject any potential subscriber to the Services in its sole discretion.
- BILLING AND PAYMENT
CUSTOMER agrees to pay (i) the monthly fees in CUSTOMER billing plan due in advance of the month incurred or the one-time prepaid fee for the fixed period set forth in CUSTOMER billing plan, whichever is applicable; (ii) the set-up fees, if applicable; (iii) the method of payment fees, if applicable; (iv) the charges for additional services or use of services; and (v) the charges for add-ons to the features included in CUSTOMER Package, if applicable. CUSTOMER will be responsible for paying all taxes, surcharges, and fees required by SERVICE PROVIDER and any applicable government entity including taxes in connection with any purchases made from CUSTOMER website. All payments will be made in US dollars and are due immediately.Without exception, website design and development fees and additional Service fees incurred during development are due once the website is functional and developed (Development Complete) with or without content (images, text, products, shipping info, merchant info).
CUSTOMER must provide accurate billing information including legal name, address, telephone number, and credit card or debit card number with proper expiration date, or ACH information and report all changes to this information promptly to SERVICE PROVIDER.
Charges may be billed on or after CUSTOMER billing cycle date to CUSTOMER method of payment on file each month for the Service including any additional charges incurred (e.g. usage, taxes and fees). SERVICE PROVIDER is not responsible for any fees resulting from charges billed by SERVICE PROVIDER including, but not limited to, overdrawn accounts or exceeding credit card limits. SERVICE PROVIDER may use various means to recover monies due. If SERVICE PROVIDER uses a collection agency or legal action to recover monies due, CUSTOMER agrees to pay all fees arising from or relating to the recovery of such monies, including attorneys’ fees.
For monthly subscription billing plans, CUSTOMER will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that CUSTOMER received as part of CUSTOMER sales transaction or on CUSTOMER order confirmation. For example, if CUSTOMER billing cycle begins on the sixth day of the month, then CUSTOMER payment due date (i.e. the date that the amount of CUSTOMER full monthly Service fee, including any and all applicable taxes, must be received by SERVICE PROVIDER) will be on the first day of the next month and of each month thereafter.
If CUSTOMER provided SERVICE PROVIDER with a valid credit or debit card, CUSTOMER agrees to maintain valid and current credit or debit card information with SERVICE PROVIDER at all times. If CUSTOMER authorized SERVICE PROVIDER to automatically deduct (” ACH Debit “) CUSTOMER monthly Service fees and any other charges, fees, or taxes billed to CUSTOMER, from CUSTOMER checking or savings bank account, then CUSTOMER hereby reaffirms CUSTOMER agreement to the Recurring Automatic Bank Draft Authorization. CUSTOMER acknowledges and agrees that CUSTOMER authorizes SERVICE PROVIDER and that SERVICE PROVIDER does not need to obtain any additional authorization from CUSTOMER for any recurring payments, Services utilized or automatic billing options. In addition, if CUSTOMER credit or debit card company provides updated credit or debit card information to SERVICE PROVIDER, CUSTOMER acknowledges that SERVICE PROVIDER does not need to obtain authorization from CUSTOMER for SERVICE PROVIDER to use such information to update CUSTOMER credit or debit card. SERVICE PROVIDER will email an e-invoice to CUSTOMER primary email address selected by or assigned to CUSTOMER during the subscription process (“Contact Email Address”) each month or if CUSTOMER designated a different billing email address, SERVICE PROVIDER will email the e-invoice to such billing email address each month. CUSTOMER may request that SERVICE PROVIDER send a paper invoice to CUSTOMER billing mailing address. SERVICE PROVIDER does not send paper invoices.
SERVICE PROVIDER does not accept checks as a standard form of payment. Occasionally a check will be accepted. If payment by check has been accepted by SERVICE PROVIDER in writing, then payments by check must be received by SERVICE PROVIDER by the due date listed in CUSTOMER invoice. SERVICE PROVIDER will charge a processing fee each time CUSTOMER pays CUSTOMER’S monthly billing invoice. When CUSTOMER pays CUSTOMER fees by check, CUSTOMER also authorizes SERVICE PROVIDER to electronically process CUSTOMER payment. If CUSTOMER check is processed electronically, CUSTOMER checking account may be debited on the same day that SERVICE PROVIDER receives CUSTOMER check and neither CUSTOMER check nor a copy of CUSTOMER check will be included with CUSTOMER checking account statement. SERVICE PROVIDER will charge a fee for returned checks or returned bank drafts from CUSTOMER financial institution.
Delinquent accounts may be suspended or canceled at SERVICE PROVIDER’s sole discretion; however charges will continue to accrue until the account is canceled. If CUSTOMER pays CUSTOMER monthly Service fee to a third party provider, CUSTOMER account also may be suspended for non-payment if CUSTOMER account is delinquent by 10 or more days.
If CUSTOMER upgrades to another Package, there will not be any cost for upgrading except for the difference in the monthly fees for the upgraded Package. Such upgrade will take effect immediately and CUSTOMER will be automatically charged, via the payment method CUSTOMER provided, the fees based upon CUSTOMER upgraded or downgraded Package. An upgrade of any Service will begin a new term of thirty six months for that Service unless otherwise specified in writing by SERVICE PROVIDER.
CUSTOMER account will be automatically inactivated if CUSTOMER puts a stop payment on CUSTOMER account with CUSTOMER financial institution in connection with the payment of CUSTOMER monthly bill or notifies SERVICE PROVIDER of any intent to stop payments or cancel services. CUSTOMER account may also be automatically inactivated if CUSTOMER payment is declined or rejected on CUSTOMER account with CUSTOMER financial institution in connection with the payment of CUSTOMER monthly bill.
If CUSTOMER has a prepaid billing plan, SERVICE PROVIDER will automatically renew CUSTOMER prepaid billing plan on the prepaid billing plan anniversary date unless CUSTOMER Service is canceled or CUSTOMER change to the monthly billing plan. If CUSTOMER has the monthly billing plan, SERVICE PROVIDER will charge CUSTOMER the monthly fee each month until CUSTOMER Service is canceled or CUSTOMER change to the prepaid billing plan.
All charges are considered valid unless disputed in writing within thirty (30) days of the billing date and emailed to email@example.com.
Adjustments will not be made for charges that are disputed more than thirty (30) days after the billing date.
SERVICE PROVIDER reserves the right (i) to add and change fees associated with CUSTOMER Service and institute new fees upon email or invoice notice at least 30 days prior to the effective date of such new monthly fee to CUSTOMER Contact Email Address and (ii) to change the fees associated with CUSTOMER account upon email or invoice notice at least 30 days prior to the effective date of such new fee to CUSTOMER Contact Email Address or CUSTOMER billing email address if different from CUSTOMER Contact Email address. CUSTOMER understands that all invoice notices are electronic only and are notations on the electronic invoice.
SERVICE PROVIDER may use various means to recover monies due. If SERVICE PROVIDER uses a collection agency or legal action to recover monies due, CUSTOMER agrees to pay all fees arising from or relating to the recovery of such monies, including attorneys’ fees.
- CANCELLATION AND TERMINATION
CUSTOMER may cancel CUSTOMER Service only by Mail Cancellation: Send registered or certified mail, return receipt requested to:
2901 W. Cypress Creek, Suite 125
Ft. Lauderdale, FL 33309
SERVICE PROVIDER does NOT accept cancellations by email or verbal notice.
In the event this Agreement is terminated prior to the end of the term of this agreement or not within the defined timelines of Section 2, CUSTOMER account will be immediately suspended and CUSTOMER agrees to pay Service Provider, its liquidated damages within ten (10) days of the termination of this Agreement, as follows: (i) the sum of the monthly fees, service fees and taxes; (ii) multiplied by the number of months remaining in this Agreement; (iii) any amounts invoiced by Service Provider to Customer that are outstanding; (iv) 80% of any remaining, not yet invoiced, totals of any contracted one time payments for any Services such has, but not limited to, design, graphic work and development.
Upon any termination by Customer, SERVICE PROVIDER will NOT permit CUSTOMER to download or otherwise copy electronic materials, data, and files comprising website or any other marketing materials, as well as any emails residing on the servers unless all unpaid balances and the full amount (100%) of all fees contracted and for the full term, whether Services are completed or NOT, are paid in full. CUSTOMER will have 90 days from point of termination by CUSTOMER or SERVICE PROVIDER to pay all required fees. After 90 days SERVICE PROVIDER will delete all files and may not be able to recover any information. However, CUSTOMER may also request immediate removal of such information. SERVICE PROVIDER will try to satisfy CUSTOMER request but will not be under an obligation to do so. SERVICE PROVIDER will not be liable for any deleted electronic materials, data, and files. SERVICE PROVIDER reserves the right to retain certain technical information about CUSTOMER website such as logs and statistics for a period of time as needed for technical and legal reasons.
SERVICE PROVIDER may terminate CUSTOMER Service account at any time for any reason, including, without limitation, if (i) CUSTOMER account is delinquent because charges on CUSTOMER method of payment were refused for any reason, (ii) CUSTOMER failed to make payment when due or CUSTOMER did not provide SERVICE PROVIDER with CUSTOMER credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) SERVICE PROVIDER, in its sole discretion, believes CUSTOMER has breached this Agreement or any other SERVICE PROVIDER agreements or policies; or (iv) CUSTOMER use of the Service is prohibited by law. Termination notice will be sent to CUSTOMER via (i) Contact Email Address or (ii) U.S. Mail to the billing address for CUSTOMER SERVICE PROVIDER account. Accounts are set to close at the end of the current billing period. Termination by the SERVICE PROVIDER will mean all Services will terminate. Upon termination by SERVICE PROVIDER under its sole discretion, SERVICE PROVIDER may immediately remove CUSTOMER website, including all of CUSTOMER materials, data and files, from SERVICE PROVIDER’s servers and CUSTOMER will have no right to copy or download such data or information; however, if CUSTOMER account was terminated by SERVICE PROVIDER due to nonpayment, CUSTOMER account will remain in inactive status for thirty (30) days and then CUSTOMER website will be removed.
CUSTOMER canceled account cannot be reactivated.
- CUSTOMER ACCOUNT, PASSWORD, AND SECURITY
Upon registration, CUSTOMER will receive a username, password, and other account information to provide access to appropriate services. CUSTOMER is responsible for (i) maintaining the confidentiality of both CUSTOMER password and CUSTOMER account and (ii) all activities that occur under CUSTOMER password and CUSTOMER account. CUSTOMER must notify SERVICE PROVIDER immediately upon discovering any unauthorized uses of the account information or any other breaches of security. CUSTOMER will be responsible for use of the Services by any person who uses CUSTOMER username and password to access the Service whether or not CUSTOMER specifically authorize such person’s use or actions. Usernames, passwords, email addresses and Internet Protocol (“IP”) addresses are SERVICE PROVIDER’s property and SERVICE PROVIDER may alter or replace them at any time.
The SERVICE PROVIDER Parties will not be liable for any loss or damage from CUSTOMER failure to comply with these security obligations. CUSTOMER acknowledges and agrees that under no circumstances will the SERVICE PROVIDER Parties be liable, in any way, for any acts or omissions by CUSTOMER, including any damages of any kind incurred as a result of such acts or omissions. For critical security purposes, SERVICE PROVIDER does not provide full admin access to websites or services and does not provide access to servers via Cpanel, FTP or any other access method.
- MONITORING THE SERVICES
SERVICE PROVIDER has no obligation to monitor the Service but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service hardware (including the SERVICE PROVIDER network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others; and (v) to enforce or prevent breaches of this Agreement or other SERVICE PROVIDER agreements or policies.
SERVICE PROVIDER will only disclose information regarding CUSTOMER use of CUSTOMER Service. SERVICE PROVIDER may immediately remove CUSTOMER material or information from SERVICE PROVIDER’s servers, in whole or in part, if SERVICE PROVIDER reasonably believes it infringes another’s property rights or violates the SERVICE PROVIDER Acceptable Use Policy, other SERVICE PROVIDER agreements or policies, or any laws or regulations.
SERVICE PROVIDER will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, SERVICE PROVIDER cannot guarantee that CUSTOMER Service will not be interrupted and cannot always provide advance notice of such outages.
- DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE SERVICES ARE PROVIDED ON AN “AS IS”, “BEST EFFORT” AND “AS AVAILABLE” BASIS. SERVICE PROVIDER AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT (I) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS OR (II) THE ACCURACY, SPELLING OR GRAMMAR OF THE CONTENT ON CUSTOMER WEBSITE. SERVICE PROVIDER AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SERVICE PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, RESELLERS, SUPPLIERS AND VENDORS (COLLECTIVELY “SERVICE PROVIDER PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH THE SERVICES, DIRECTLY OR INDIRECTLY, INCLUDING ARISING FROM (I) CONTENT ON CUSTOMER WEBSITE; (II) END USERS’ USE OF CUSTOMER WEBSITE; (III) OTHER PARTIES ACCESSING CUSTOMER DEVICE; (IV) SECURITY BREACHES; (VI) EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (V) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE) OF THE SERVICE PROVIDER WEB HOSTING SERVICE; (VI) CUSTOMER RELIANCE ON OR USE OR MISUSE OF THE SERVICE; (VII) THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES OR DATA (INCLUDING PERSONALLY-IDENTIFIABLE INFORMATION), ERRORS OR DEFECTS, DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, SERVICE INTERRUPTIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (VIII) INABILITY TO ACCESS THE SERVICE DUE TO CONNECTIONS, INTERNET ROUTING, FILTERING BY GOVERNMENT AGENCIES, HACKING, SPAMMING OR ANY OTHER CIRCUMSTANCE OUTSIDE THE CONTROL OF THE SERVICE PROVIDER PARTIES; OR (IX) THE USE OF THE SERVICE BY CUSTOMER OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS. THE SERVICE PROVIDER PARTIES WILL NOT BE OBLIGATED TO COMPENSATE CUSTOMER FOR ANY DOWNTIME OF CUSTOMER WEBSITE, WHETHER CAUSED BY CUSTOMER OR A SERVICE PROVIDER PARTY.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE SERVICE PROVIDER PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY SERVICE PROVIDER PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. CUSTOMER EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY SERVICE PROVIDER PARTY TO CUSTOMER FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
CUSTOMER MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
CUSTOMER agrees to defend, indemnify and hold the SERVICE PROVIDER Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an SERVICE PROVIDER Party may sustain or incur by reason of CUSTOMER use or misuse of the Service or the use or misuse of the Service by anyone else through CUSTOMER account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws or regulations or the terms of this Agreement or any other SERVICE PROVIDER agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
In addition, CUSTOMER agrees to defend, indemnify and hold the SERVICE PROVIDER Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages (including, but not limited to, direct, indirect and consequential), attorney’s fees and expenses that an SERVICE PROVIDER Party may sustain or incur in connection with the Content on CUSTOMER Website that SERVICE PROVIDER did not explicitly provide to CUSTOMER as part of the SERVICE PROVIDER Digital Content service or the Website Design Service.
- LICENSE AND USE OF THE SERVICES
The names of SERVICE PROVIDER, the Service and other SERVICE PROVIDER products and services, and their related logos, are trademarks of SERVICE PROVIDER (“SERVICE PROVIDER Marks”). For certain Packages and all websites, SERVICE PROVIDER is authorized to add “powered by SERVICE PROVIDER” or other similar branded statements on CUSTOMER web site. Otherwise, CUSTOMER agrees not use any SERVICE PROVIDER Marks on CUSTOMER website or anywhere without the prior written permission of SERVICE PROVIDER.
During the term of this Agreement and upon payment of all fees due and owing to SERVICE PROVIDER, SERVICE PROVIDER hereby grants, and CUSTOMER hereby accepts, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the Services pursuant to the terms and conditions set forth herein.
Any rights not expressly granted herein will be reserved for SERVICE PROVIDER and its licensors. The source code is specifically excluded from the license granted hereunder. SERVICE PROVIDER and its licensors will, at all times, retain ownership of all right, title and interest to any and all intellectual property rights in (i) the SERVICE PROVIDER Software, including all updates, improvements, modifications and enhancements; (ii) Tools; (iii) the SERVICE PROVIDER Digital Content; and (iv) the Website Design Service Materials.
Except for the licenses set forth in this Agreement, nothing in this Agreement grants to or confers in CUSTOMER any license or right of ownership in any of the foregoing. CUSTOMER will not reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the Tools, SERVICE PROVIDER Digital Content or Website Design Service Materials, if applicable, except pursuant to reasonable backup procedures, or for use in CUSTOMER website pursuant to this Agreement, nor create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering, decompiling or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to CUSTOMER under this Agreement. This license will automatically terminate upon the termination of this Agreement.
In addition, CUSTOMER is not permitted to (i) use the SERVICE PROVIDER Digital Content or the Website Design Service Materials in a web page design whereby the SERVICE PROVIDER Digital Content or the Website Design Service Materials is in a format designed or intended for storage or re-use by others; (ii) use or permit the use of the SERVICE PROVIDER Digital Content or the Website Design Service Materials or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the SERVICE PROVIDER Digital Content or the Website Design Service Materials or any part thereof; (iii) use the SERVICE PROVIDER Digital Content or the Website Design Service Materials with images of identifiable individuals, products or entities in a manner that suggests their association with or endorsement of any product or service; (iv) translate, reverse engineer, decompile, or disassemble the SERVICE PROVIDER Digital Content or the Website Design Service Materials; or (vi) rent, lease, assign, transfer or redistribute the SERVICE PROVIDER Digital Content or the Website Design Service Materials or a copy thereof, to another person or legal entity.
Any supplemental software code and supporting materials provided to CUSTOMER as part of support services for the SERVICE PROVIDER Digital Content shall be considered part of the SERVICE PROVIDER Digital Content and are subject to the terms and conditions of this Agreement and any software code and supporting materials provided to CUSTOMER as part of support services for the Website Design Service Materials shall be considered part of the Website Design Services Materials and are subject to the terms and conditions of this Agreement
The copyright and all other rights to the SERVICE PROVIDER Digital Content and the Website Design Service Materials will remain with the owners of the specific SERVICE PROVIDER Digital Content and Website Design Service Materials.
CUSTOMER agree to use the Service only for lawful purposes and in compliance with the SERVICE PROVIDER Acceptable Use Policy , which is incorporated herein. CUSTOMER is solely responsible for the content, materials, files, data and links on CUSTOMER website (“Content on CUSTOMER Website”). CUSTOMER agrees and warrants that the Content on CUSTOMER Website and transmission of any data, images or materials from CUSTOMER website (i) will not violate any federal, state, local or foreign laws, rules or regulations, and (ii) will not violate the rights of any person, group or entity including the intellectual property rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other products that are not licensed to CUSTOMER. CUSTOMER will not use the network resources of SERVICE PROVIDER to impersonate another person or misrepresent authorization to act on behalf of others or SERVICE PROVIDER. Any emails sent in connection with CUSTOMER website must correctly identify the sender. Violations of any of these terms may result in termination of CUSTOMER use of the Services with or without notice.
11. GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of Florida and exclusive venue for any disputes involving this matter shall be the trial courts of Broward County Florida.
12. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
Most subscriber concerns can be resolved by calling SERVICE PROVIDER. If SERVICE PROVIDER is unable to resolve CUSTOMER complaint to CUSTOMER satisfaction (or if SERVICE PROVIDER has not been able to resolve a dispute it has with CUSTOMER after attempting to do so informally), we each agree to resolve those disputes through binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. Moreover, in arbitration CUSTOMER is entitled to recover attorneys’ fees from SERVICE PROVIDER to at least the same extent as CUSTOMER would be in court.
In addition, under certain circumstances (as explained below), SERVICE PROVIDER will pay CUSTOMER more than the amount of the arbitrator’s award and will pay CUSTOMER attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards CUSTOMER an amount that is greater than what SERVICE PROVIDER has offered CUSTOMER to settle the dispute.
12.2 Agreement to Arbitrate
SERVICE PROVIDER and CUSTOMER agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which CUSTOMER are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “SERVICE PROVIDER,” “CUSTOMER,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over SERVICE PROVIDER and CUSTOMER is proper. This agreement to arbitrate does not preclude CUSTOMER from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on CUSTOMER behalf.
CUSTOMER agrees that, by entering into this Agreement, CUSTOMER and SERVICE PROVIDER are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
12.3 Informal Dispute Resolution Prior to Arbitration
12.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to SERVICE PROVIDER should be addressed to: General Counsel (Arbitration), JLB., 301 Mallory Station Rd, Suite 210, Franklin, TN 37067 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to CUSTOMER will be addressed to the billing address that SERVICE PROVIDER has on file for CUSTOMER.
12.3(2) Settlement Proposals
The amount of any settlement offer made by SERVICE PROVIDER or CUSTOMER shall not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which CUSTOMER or SERVICE PROVIDER is entitled.
12.3(3) Failure to Reach Resolution
If SERVICE PROVIDER and CUSTOMER do not reach an agreement to resolve the claim within 45 days after the Notice is received, CUSTOMER or SERVICE PROVIDER may commence an arbitration proceeding.
12.4 Commencement of Arbitration
CUSTOMER may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to SERVICE PROVIDER at the Notice Address. CUSTOMER can access a claim form and directions for filing at the website for AAA, www.adr.org. If SERVICE PROVIDER receives notice at the Notice Address that CUSTOMER have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse CUSTOMER for CUSTOMER payment of the filing fee by check to CUSTOMER address or by credit to CUSTOMER account unless CUSTOMER claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider.
12.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless SERVICE PROVIDER and CUSTOMER agree otherwise, any arbitration hearings will take place in Williamson County, TN. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
12.7 Arbitration Fees
Except as otherwise provided for herein, SERVICE PROVIDER and CUSTOMER will split all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of CUSTOMER claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, CUSTOMER agree to reimburse SERVICE PROVIDER for all monies previously disbursed by it that are otherwise CUSTOMER obligation to pay under the AAA Rules. In addition, if CUSTOMER initiate an arbitration in which CUSTOMER seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
12.8 Awards and Attorney’s Fees
If the arbitrator issues CUSTOMER an award that is greater than the value of SERVICE PROVIDER’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues CUSTOMER an award and SERVICE PROVIDER made no settlement offer, then SERVICE PROVIDER will pay CUSTOMER the amount of the award or $2,500 (the “Alternative Payment”), whichever is greater, and pay CUSTOMER attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that CUSTOMER attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing CUSTOMER claim in arbitration (the “Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 17.8 supplements any right to attorneys’ fees and expenses CUSTOMER may have under applicable law. Thus, if CUSTOMER would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding CUSTOMER that amount. However, CUSTOMER may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws SERVICE PROVIDER may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, SERVICE PROVIDER agrees that it will not seek such an award.
12.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. CUSTOMER AND SERVICE PROVIDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both CUSTOMER and SERVICE PROVIDER agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void and all disputes shall be heard by a court.
12.10 Future Changes to Agreement to Arbitrate
If CUSTOMER were a subscriber to the Service before November 27, 2013, CUSTOMER have the right to reject the changes to this Section 17 set forth in this Version November 27, 2013 by sending us written notice of such rejection to our Notice Address postmarked on or before January 31, 2014. By rejecting these changes, CUSTOMER are agreeing that CUSTOMER will arbitrate any dispute between us in accordance with the language in Section 17 of Version August 1, 2013. 2
Notwithstanding any provision in this Agreement to the contrary, if SERVICE PROVIDER makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of CUSTOMER subscription with SERVICE PROVIDER, CUSTOMER may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, CUSTOMER are agreeing that CUSTOMER will arbitrate any dispute between us in accordance with the language in this Section 17 of this Version November 27, 2013.
12.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by SERVICE PROVIDER. 301 Mallory Station Rd, Suite 210, Franklin, TN 37067
Charges may vary depending on the type of Service.
This Section 12 will survive the termination of CUSTOMER Service with SERVICE PROVIDER.
13. REVISIONS TO THIS AGREEMENT
SERVICE PROVIDER may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the SERVICE PROVIDER Web Site. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. CUSTOMER’S continued use of the Service after the date of the revised version constitutes CUSTOMER acceptance of all of the revisions. If CUSTOMER does not agree to the revisions in the revised version, CUSTOMER’S sole and exclusive remedy will be to terminate CUSTOMER account and use of the Service and SERVICE PROVIDER will bill CUSTOMER for the remaining unpaid monthly payments and any unpaid setup, design or development fees as per Section 5.
CUSTOMER may not assign CUSTOMER rights or delegate any of CUSTOMER duties under this Agreement without the prior written consent of SERVICE PROVIDER, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 17; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. SERVICE PROVIDER may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of SERVICE PROVIDER as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. SERVICE PROVIDER may subcontract any work, obligations or other performance required of SERVICE PROVIDER under this Agreement without CUSTOMER consent. SERVICE PROVIDER will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Service Provider may freely subcontract its duties and obligations under this Agreement. In the event that Service Provider subcontracts any of its duties and obligations, Service Provider agrees that: (i) the third party shall execute a confidentiality agreement consistent with the terms of this Agreement and (ii) any such permitted subcontracting shall not release Service Provider from any of its obligations under this Agreement.
- INDEPENDENT CONTRACTOR
Service Provider is acting as an independent contractor in its capacity under this Agreement. Nothing contained in this Agreement or in the relationship of the Customer and Service Provider shall be deemed to constitute a partnership, joint venture, or any other relationship between the Customer and Service Provider except as is limited by the terms of this Agreement.
- Scheduled Maintenance.
Service Provider reserves the right to take down applicable software and servers hosting the infrastructure of Services to conduct routine maintenance checks (“Scheduled Maintenance”). Service Provider will use commercially reasonable efforts to perform Scheduled Maintenance outside of regular business hours. Service Provider will not be responsible for any damages or costs incurred by Customer, if any, for Scheduled Maintenance.
Last Revised: 5/21/17