Last updated June 22, 2016.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS, AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY THE COMPANY, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
1. ELIGIBILITY/GENERAL RESTRICTIONS. The User’s limited license to access and make personal use of the Site is contingent on the following:
1.1. The User must be at least 18 years of age;
1.2. The User must provide information (personal and otherwise) that is truthful to the best of the User’s knowledge and in the event any such information changes, the User shall notify the Company of any such change within a reasonable amount of time;
1.3. The User shall not use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of the Site;
1.4. The User will not take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure. The User agrees not to use any robot, spider, other automatic device, or manual process to monitor or copy any content from the Site without the prior express consent from an authorized Company representative, unless such use is by a search engine employed to direct Internet users to the Site;
1.5. The User shall not reproduce, duplicate, copy, sell, resell, visited, or otherwise exploit for any commercial purpose without express written consent of the Company;
1.6. The User shall not use any of the Services for any unlawful or harmful purposes; and
1.7. Any unauthorized use automatically terminates the permission or license granted by the Company.
2. REPRESENTATIONS AND WARRANTIES. The Parties hereby represent and warrant the following:
2.1. Intellectual Property. The User represents and warrants that the User (i) owns the intellectual property rights to or holds a right to publish any content provided to the Company for the purpose of performing the Services herein; (ii) will not provide any information to the Company for the performance of the Services that violates the intellectual property rights of any third party.
2.2. No Conflict. The Company and the User each represent and warrant to the other that the execution, delivery and performance of this Agreement by such party (i) has been duly authorized by all necessary corporate action (ii) does not conflict with, or result in a material breach of, the articles of incorporation or by-laws of such party, and any material agreement by which such party is bound, or any law, regulation, rule, judgment or decree of any governmental instrumentality or court having jurisdiction over such party, and (iii) and constitutes a valid and legally binding obligation of such party enforceable in accordance with its terms.
2.3. Facilitation. The User will (i) put the Company in contact with the appropriate parties within the User’s organization and provide all information necessary to effectively perform the Services; (ii) cooperate with the Company in all matters relating to the Services; and (iii) provide such materials or information as the Company may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects.
3. BILLING; REFUNDS. By signing up for any of the Company’s paid subscription products, you are expressly agreeing to the billing policies and fees described on the “Pricing” page elsewhere on the Site. The Company is not obligated to offer refunds of amounts paid under any circumstances. In addition to the fees described on the fee schedule, the following policies pertain to billing and payment:
3.1. All payments shall be in US Dollars;
3.2. If the User is paying by credit card or ACH, the User hereby irrevocably authorizes the Company to charge the credit card or other payment method provided for any such amounts on a recurring basis when such amounts are due, and amounts due will be automatically charged, in advance;
3.3. You acknowledge that you are required to pay all amounts due for the Services through the Initial Term (as defined below). You will be required to agree to all applicable payment authorization forms that authorize recurring billing in accordance with this Agreement. The Company shall have the right to charge your credit card or debit from your account through ACH for fees in accordance with these Terms of Service.
3.4. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL AMOUNTS OWED MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED AND THAT THE COMPANY IS UNDER NO OBLIGATION TO OFFER REFUNDS FOR ANY AMOUNTS PAID FOR ANY REASON.
4. TERM; TERMINATION.
4.1. Term. The Agreement shall begin on the Effective Date, and will remain in effect on a month-to-month basis until terminated as provided below.
4.2. Cancellation. The User may cancel the services any time through the Site. Should the User cancel, then the Service will run through the end of the month at which time it will terminate.
4.3. Cancellation by the Company. We may cancel at any time for any reason by providing written notice of cancellation to you. Cancellation will take effect at the end of the then current billing period. Written notice may be provided to you via email. If we terminate this agreement, we will reimburse you for any unused funds within thirty (30) business days from the effective cancellation date.
4.4. Costs of Collection. You agree to pay all costs of collection (including attorneys’ fees, costs and other legal and collection expenses) incurred by the Company in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).
4.5. Chargebacks/Charge Disputes. If you dispute any payment with your credit card company or bank, and such dispute is resolved in the Company’s favor, you acknowledge that you will indemnify the Company for all costs incurred in defending such dispute, including reasonable attorney’s fees incurred.
4.6. Right of Refusal. The Company has the right to refuse to offer the Services to any User for any reason relating to the User or the content that the User would like to display through the Services.
5. INTELLECTUAL PROPERTY.
5.1. License Held by the Company. During the Term, you hereby grant to the Company a non-exclusive, royalty-free worldwide license to use, copy, modify, display, broadcast and transmit any of your text, images, logos, trademarks, service marks, promotional materials, photos, audio, and video content, as applicable, to the extent necessary for the Company to perform the Services.
5.2. Representation. The User represents and warrants that the User owns the intellectual property rights to or holds a right to publish any content provided to the Company for the purpose of performing the Services herein.
6.1. “Confidential Information” includes written machine-reproducible and visual materials; all verbal disclosures made by or on behalf of the Parties under this Agreement; any software, whether in object, source or executable code; documentation and nonpublic financial information; information relating to either Party’s methods of operations; names, addresses, telephone numbers and other identifying information relating to clients of the Parties; personnel data relating to employees and contractors; and other documents prepared by or for the Parties or otherwise in furtherance of such Party’s business; nonpublic plans for new products and services; improvements and marketing strategies; and business contacts, pricing, business plans, techniques, methods and processes.
6.2. Receipt of Confidential Information. During the term of this Agreement, each Party (a “Recipient Party”) may acquire Confidential information about the other (a “Disclosing Party”), including information regarding business activities and operations, technical information, and trade secrets (as defined under California Civil Code Section 3426.1) (the “Confidential Information and Trade Secrets”). Each Recipient Party agrees to hold in confidence all Confidential Information and Trade Secrets, not use Confidential Information or Trade Secrets for purposes other than to accomplish the aims of this Agreement, and not to disclose Confidential Information or Trade Secrets to any third party.
6.3. Exceptions. The foregoing confidential obligations shall not apply to Confidential Information (i) which is or becomes publicly available other than through the breach of this Agreement, (ii) which was known to the recipient prior to the disclosure by the other party, (iii) which a party rightfully receives from a third party not bound by any confidentiality agreement with respect thereto, (iv) which is independently developed by the recipient, or (v) which is required to be disclosed pursuant to legal or governmental requirements; provided, that disclosure under this clause shall be limited to persons legally entitled to receive the information.
6.4. Effect Upon Termination. In the event this Agreement expires or is terminated for any reason or should either Party request the other to do so for any reason, such Party will promptly return, erase, or destroy all Confidential Information or Trade Secrets in its possession or control, including Confidential Information or Trade Secrets stored in any computer memory or data storage apparatus.
6.5. Publicity. The User acknowledges and agrees that the Company may indicate that it is working with the User in its marketing materials.
7. USER ACKNOWLEDGMENTS. The User agrees to and acknowledges the following:
7.1. Business Hours. The Company will endeavor to handle all the User’s needs when needed, however, unless expressly agreed to through the Services or otherwise, there shall be no obligation for the Company to perform any Services or answer User inquiries outside regular business hours. The Company agrees to answer User inquiries within a reasonable time of the User making any such inquiry.
7.2. Method of Performance. In accordance with the User’s objectives and the specifications of the Services, the Company will determine the method, details and means of performing the Services.
7.3. Suitability of Advertisements. The Company provides suitability standards for all advertisements that may be updated from time to time. You agree and acknowledge that any advertisements provided must meet such standards and the Company may reject any such advertisement for not meeting such standards in its sole and absolute discretion.
8. LIMITED LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO THE USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITE, THE CONTENT, ANY SERVICE OFFERED BY THE COMPANY, ANY USER POST MADE ON THE SITE; OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) ANY PARTY’S USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY DATA OR ANY TRANSMISSION OF DATA; (D) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED) BY/FROM ANY PARTY; AND/OR (E) ANY CONTENT OR DATA FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, OR THE SERVICE; WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER.
9. DISCLAIMER OF WARRANTIES. THIS SITE, THE CONTENT, AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THIS SITE AND ANY SERVICE OFFERED BY THE COMPANY IS AT THE USER’S SOLE RISK. THE COMPANY MAKES NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (B) THAT THE SITE, OR THE SERVICE WILL MEET THE USER’S REQUIREMENTS; (C) THAT THE SITE WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA OR CONTENT OBTAINED FROM THE SITE, OR THE SERVICE WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY THE USER FROM THE COMPANY, WHETHER IN ORAL, WRITTEN OR ELECTRONIC FORM, RELATING TO THE USER’S USE OF THIS SITE, THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. INDEMNIFICATION. The User agrees to indemnify, hold harmless and defend the Company, along with its directors, employees, owners, and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (i) this Agreement and/or any breach or threatened breach by the User; (ii) the User’s use of the Site or any Service offered by the Company; (iii) any unacceptable, unlawful, or objectionable use of the Site or any Service offered to the User by the Company; or (iv) any negligent or willful misconduct by the User; or (v) violation of any third party’s rights (including intellectual property rights) through the User’s use of the Site or the Service.
11.1. Communications. The Company shall be free to reproduce, use, disclose, and distribute any and all communication conducted with Company through the Site including but not limited to feedback, questions, comments, suggestions and the like (the “Communications”). The User shall have no right of confidentiality in the Communications and the Company shall have no obligation to protect the Communications from disclosure. The Company shall be free to use any ideas, concepts, know-how, content or techniques contained in the Communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information.
11.2. Errors and Omissions. The Site may contain technical inaccuracies and typographical errors, including but not limited to inaccuracies relating to pricing or availability applicable to certain products or services offered by the Company. The Company shall not assume responsibility or liability for any such inaccuracies, errors or omissions, and shall have no obligation to honor any order affected by such inaccuracies. The Company reserves the right to make changes, corrections, cancellations and/or improvements to any information contained on the Site, and to the products and programs described in such information, at any time without notice, including after confirmation of a transaction.
11.3. Products and Services. The Site may contain information about products and services offered by the Company, not all of which are available in every location. Any reference to a Company product or service on the Site does not imply that such product or service is or will be available in the User’s location. Furthermore, the Company may alter what Services are available to Users at any time in its sole discretion, including (but not limited to) removing certain Services from access at any time.
11.4. International Use. The Company does not represent that all content, materials and Services on the Site are appropriate or available for use in all geographic locations, and accessing such from certain locations may be illegal and prohibited. Those who do access content, materials and services from such locations act on their own initiative and the Company is not responsible for such Users’ compliance with local laws or other applicable laws. The User shall not access the foregoing where prohibited by law.
11.5. Notice to Users in California. Under California Civil Code Section 1789.3, users of the Service from California are entitled to notice of the contact information for The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs: It may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
11.6. Force Majeure. In the event that the Company is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the Company or other causes beyond the Company’s reasonable control (a “Force Majeure Event”) the Company shall immediately give notice to the User and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended.
11.7. Subcontracting. The Company may, without your consent, subcontract to any party the performance of all or any of the Company’s obligations under this Agreement provided that the Company remains primarily liable for the performance of those obligations.
11.8. Venue; Arbitration. This Agreement and the interpretation of the terms herein shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflict of laws. The User irrevocably submits to the exclusive jurisdiction of the federal and state courts located in San Diego County, California. Except for a misuse or infringement of the Company’s intellectual property, any and all disputes, controversies and claims arising out of or relating to this Agreement, or concerning the respective rights or obligations of the Parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator pursuant to the Commercial Rules then in effect of the American Arbitration Association. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The Parties agree that the arbitrators shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to any party in such arbitration. BY ENTERING INTO THIS AGREEMENT, THE USER ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. THE USER FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT THE USER WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
11.9. Attorney’s Fees. Except as otherwise provided in this Agreement, the Parties will be responsible for their own costs and legal fees.
11.10. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.