We provide visitors access to our Websites, Services and Programs subject to the following terms. By accessing this website, making a purchase or receiving services from Pursu, Inc. you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws.
If you do not agree with any of these terms, you are prohibited from using or accessing any websites, resources or programs provided by Pursu, Inc. The materials contained in our websites and programs are protected by applicable copyright and trade mark law.
Visitors – A Visitor is any individual who browses, accesses or uses our Websites. No registration or login is required and visitors may view all publicly-available pages, content, videos or materials.
Herein referred to collectively as “User”
Our Websites, Services and Programs along with any marketing or content created by Pursu, Inc. is intended for Users over the age of 18.
Services – Any branding, design, website or marketing services that a User directly engages Pursu, Inc. to deliver. All Services require a signed agreement that includes a detailed Scope of Work, specific policies, terms, conditions and obligations for those Services.
Programs – Any content, communications, or online education (course, workshop, masterclass, etc.) that a User registers for or purchases from Pursu, Inc. that does not fall within the Services category outlined above.
Websites – The collective online presence of Pursu, Inc. including but not limited to Pursu.Agency, Coaching.Pursu.Agency as well as any social media platforms or online forums.
Herein referred to collectively as “Services”
Content – Any materials, educational or otherwise including but not limited to, videos, coursework, workbooks, lesson plans, trainings, photographs, software, text, graphics, images, sound recordings, or other content created by, provided by or provided on behalf of Pursu, Inc.
USER UNDERSTANDS THAT THEY ARE SOLELY RESPONSIBLE FOR THEIR OWN SUCCESS.
EVERY EFFORT HAS BEEN MADE TO ACCURATELY REPRESENT OUR SERVICES OR PROGRAMS AND THEIR POTENTIAL. THERE IS NO GUARANTEE THAT YOU WILL GROW YOUR BUSINESS OR EARN ANY MONEY USING THE TECHNIQUES OR IDEAS IN THESE MATERIALS. EXAMPLES PROVIDED IN THESE MATERIALS ARE NOT TO BE INTERPRETED AS A PROMISE OR GUARANTEE OF GROWTH OR EARNINGS. GROWTH AND EARNING POTENTIAL IS ENTIRELY DEPENDENT ON THE PERSON USING OUR PRODUCTS, IDEAS, AND TECHNIQUES. WE DO NOT PURPORT ANY OF OUR PRODUCTS TO BE AN “EASY BUTTON” OR “GET RICH SCHEME.” AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
Client understands that neither Pursu, Inc. nor its representative(s), has NOT promised, nor shall be obligated to, the following:
- Success in business, results, sales or income for the User.
- Provide assistance, as either coach or mentor, with consultations for future business contracts made by User.
- Procure any publicity, social media exposure, interviews, write-ups, features, television, or print promotions for the User.
- Introduce User to Pursu, Inc.’s full network of contacts, media, or business partners. User understands that no relationship exists between Pursu, Inc. and the User after the conclusion of this program.
YOU AGREE THAT YOUR USE OF THE OUR WEBSITES, SERVICES, PROGRAMS AND CONTENT WILL BE AT YOUR SOLE RISK.
USER UNDERSTANDS THAT THE WEBSITES, SERVICES, PROGRAMS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES’ CONTENT OR THE CONTENT OF ANY WEBSITES OR MOBILE APPLICATIONS LINKED TO THE SERVICES AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
The Websites contain proprietary materials, such as videos, coursework, lesson plans, training modules, photographs, software, text, graphics, images, sound recordings, and other material created by, provided by or provided on behalf of Pursu, Inc. The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
Visitors may view all publicly-available Content for their own personal, non-commercial use. Registered Users who have purchased any product or service, may download onto their own machines and view any Content contained in such purchased product or service for their own personal, non-commercial use. Other than as expressly set forth in the immediately two prior sentences, you have no other rights in or to the Content (other than your own Registered User Content that you post to the Websites), and you will not use the Content except as permitted under this Agreement. No other use is permitted without the prior written consent of Pursu, Inc. Pursu, Inc. retains all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Websites automatically terminates and you must immediately destroy any copies you have made of the Content.
You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Services, you agree not to:
- Systematically retrieve data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
- Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
- Circumvent, disable, or otherwise interfere with security-related features of the Services, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Services and/or the Content contained therein.
- Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services.
- Use any information obtained from the Services in order to harass, abuse, or harm another person.
- Make improper use of our support services or submit false reports of abuse or misconduct.
- Use the Services in a manner inconsistent with any applicable laws or regulations.
- Engage in unauthorized framing of or linking to the Services.
- Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services.
- Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
- Delete the copyright or other proprietary rights notice from any Content.
- Attempt to impersonate another user or person or use the username of another user.
- Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
- Interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.
- Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you.
- Attempt to bypass any measures of the Services designed to prevent or restrict access to the
- Services, or any portion of the Services.
- Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Services.
- Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, or use or launch any unauthorized script or other software.
- Use a buying agent or purchasing agent to make purchases on the Services.
- Make any unauthorized use of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
- Use the Services as part of any effort to compete with us or otherwise use the Services and/or the
- Content for any revenue-generating endeavor or commercial enterprise.
- Sell or otherwise transfer your profile.
- Use the Services to advertise or offer to sell goods and services.
- Selling or Using any part of the content provided as their own.
By using the Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Legal Terms; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Services through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Services for any illegal or unauthorized purpose; and (7) your use of the Services will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
You may be required to register to use the Services. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
The Website, Program or Services may invite you to chat, contribute to, or participate in video calls, blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Services, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”). Contributions may be viewable by other users of the Services and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:
- The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
- You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Services, and other users of the Services to use your Contributions in any manner contemplated by the Services and these Legal Terms.
- You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Services and these Legal Terms.
- Your Contributions are not false, inaccurate, or misleading.
- Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
- Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
- Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
- Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
- Your Contributions do not violate any applicable law, regulation, or rule.
- Your Contributions do not violate the privacy or publicity rights of any third party.
- Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
- Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
- Your Contributions do not otherwise violate, or link to material that violates, any provision of these Legal Terms, or any applicable law or regulation.
Any use of the Services in violation of the foregoing violates these Legal Terms and may result in, among other things, termination or suspension of your account and of your rights to use the Services.
By posting your Contributions to any part of the Website, Program or Services, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Services. You are solely responsible for your Contributions to the Services and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Services; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
TEMPORARY USAGE LICENSE:
Permission is temporarily granted for Users to download one (1) copy of provided course content or materials (information or software) on Pursu, Inc.’s website for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
- Modify or copy the content or materials;
- Use the materials for any commercial purpose, or for any public display (commercial or non-commercial);
- Attempt to decompile or reverse engineer any software contained on Pursu, Inc.’s website;
- Remove any copyright or other proprietary notations from the materials; or
- Transfer the materials to another person or “mirror” the materials on any other server.
This license shall automatically terminate if you violate any of these restrictions and may be terminated by Pursu, Inc. at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
We accept the following forms of payment:
- American Express
User is responsible for the completion of all payments or payment plans associated with the Services they purchase from Pursu, Inc.
You must provide current, complete, and accurate billing and credit card information and are responsible for promptly updating andy or all billing information (such as billing address, card number, and expiration date) to keep your account current, complete, and accurate, and you must promptly contact us if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorized disclosure or use of your Sign-In Name or Password).
In the event that payment is not received in a timely manner, we reserve the right to deactivate your account, remove access, terminate services or immediately cease work on any of our contracted Services. If payment is not received from your credit card issuer, you hereby agree to pay all amounts due upon demand. You agree to pay any costs related to collection, including attorney’s fees and costs, on any outstanding balance.
We reserve the right to refuse any order placed through the Services. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
We DO NOT offer refunds on any of our programs or services, at this time. If you have any questions prior to completing a purchase, please contact us at [email protected].
ALL PRICES SUBJECT TO CHANGE
FAILURE TO PAY WILL RESULT IN IMMEDIATE TERMINATION OF SERVICES
We reserve the right to change, modify, or remove the contents of the Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Services. We also reserve the right to modify or discontinue all or part of the Services without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.
We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Legal Terms will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith.
The Services may contain (or you may be sent via the Site) links to other websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Services or any Third-Party Content posted on, available through, or installed from the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Services and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Legal Terms no longer govern.
You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Services or relating to any applications you use or install from the Services. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party.
You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us blameless from any harm caused by your purchase of such products or services. Additionally, you shall hold us blameless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
Pursu, Inc. is a reseller of website hosting and maintenance. By engaging Pursu, Inc. for Website Hosting & Maintenance in any capacity or by participating in the Pursu Your Potential program you are entering into the Web Hosting Service Agreement. This agreement is entered into between You, the user, Pursu, Inc. and Simply Styled Sites.
This Web Hosting Service Agreement (this “WHA”) is entered into between Pursu, Inc., Simply Styled Sites (both entities will be known collectively as “Company”) and customer (“You”).
Any of the following actions constitutes Your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) registering for Service on Company’s web page and selecting “I Accept” as part of the registration process, or (ii) ordering Service from Company’s personnel and providing them with Your credit card number or other billing information.
You agree to be bound by all of the terms and conditions of (i) this WHA and (ii) the following:
- Company’s Acceptable Use Policy (“AUP”).
DEFINITIONS. For the purposes of this WHA, the following definitions apply:
“Access Information” means information that alone or together with other information, can provide access to any portion of Your Account, including but not limited to, Your Account number, login names, passwords, credit card or other financial information, security questions and their respective answers, and any other similar information. For the avoidance of doubt, Your Access Information will include any similar information for each of Your Users.
“Account” means the account created with Company in connection with this Agreement that relates to Your purchase of and subscription to Services and the use of Services by You and Your Users.
“Administrative User” means any of Your employees, consultants, independent contractors or customers to whom You grant administrative permission to access the Services in accordance with Company’s entitlements and procedures and this Agreement (where “administrative permission” includes, but is not limited to, the right to create, modify and delete User accounts, as well as the right to access and modify Your billing information and other functionality available through Company’s administrative control panel).
“Applicable Law” means any applicable Federal and California rules, regulations that are applicable to Your activities under the Agreement and this Agreement is governed by California Law without applicability of its choice of conflicts of law provisions and all disputes shall be solely submitted to Superior Court Of California in and for the County of San Diego and any and all right to a Jury Trial by You or Company are waived upon the acceptance of this Agreement by You.
“Data” means all data submitted by Your Users to Company in connection with the Services, including all content, material, IP and similar addresses, recordings, messages, software, Account Information and Account-related settings.
“Governmental Authority” means a government, regulatory organization, self-regulatory organization, court of competent jurisdiction or similar body.
“Company Parties” means Company’s affiliates (including parents and subsidiaries), vendors, licensors and partners, and its officers, employees, agents and representatives.
“Outboarding” means Your removal all of your data, including but not limited to, databases, contacts, calendars, e-mail, website content, and any Data hosted by Company. It will be solely Your responsibility to secure all necessary Data from Your Account prior to termination. Company will not be responsible or otherwise liable for any loss of Your Data or any damages arising from the deletion of Your Data following termination of the Services.
“PHI” means Protected Health Information which is individually identifiable health information.
“Services” means Company’s web hosting offering.
“Third-Party Service” means any service or product offered by a party that is not Company.
“User” means any of Your employees, consultants, or independent contractors to whom You grant permission to access the Services in accordance with Company’s entitlements procedures and this Agreement (including Administrative Users and end users).
“You” and “Your” means the individual or Entity on whose behalf this Agreement is accepted.
- SCOPE; ACCESS; SECURITY.
1.1. Access to Services. Subject to and in accordance with the terms of this Agreement, including any Schedules, Company grants You a non-exclusive, non-sublicensable, nontransferable, non-assignable, revocable license for the term of this Agreement to access and use the Services. Services may only be used by Your Users for internal business purposes only. You agree to comply with the terms and conditions of this Agreement, including any Schedules, and with all applicable Company procedures and policies that further define use of the Services. You acknowledge and agree that the actions of any of Your Users with respect to the Services will be deemed to be actions by You and that any breach by any of Your Users of the terms of this Agreement, including any Schedule, will be deemed to be a breach by You.
1.2. Account Information and Ownership. You acknowledge that Your failure to timely update Your Account information, including authorized Administrative Users, can result in unauthorized personnel having access to Your Account and potentially doing harm to You. Accordingly, You agree to maintain accurate Account information by providing updates to Company promptly, but no later than three (3) business days, when any of Your Account information requires change, including any relevant Account contact information. Failure by You, for any reason, to respond within three (3) business days to any inquiries made by Company to determine the validity of information provided by You will constitute a material breach of this Agreement. You acknowledge and agree, and expressly consent, that in the event of any dispute regarding access to or legal ownership of any Company account or any portion thereof, including Your Account, Company will resolve such dispute in its sole discretion. In addition, in the event of such a dispute, Company may immediately suspend, alter or terminate any relevant account, including Your Account, or any portion thereof. You will reimburse Company for any legal fees and other fees incurred
with respect to any dispute regarding control or ownership of Your Account or Your Data or the same of another Company customer. You acknowledge and agree that (i) the legal owner of all Data on the Account is You (the counterparty to this Agreement) and not any individual User, including any Account contact registered with Company, regardless of any administrative designation (e.g., Administrator, Billing Contact, Owner, etc.); (ii) You will provide Company with any documentation it reasonably requests to establish ownership and rights to Your Account and any related Data; and (iii) any User identified as an Administrative User with respect to Your Account has the authority to bind You to any amendments, modifications or acknowledgements regarding this Agreement or otherwise relating to the Services.
1.3. Account Security and Activity. You acknowledge and agree that You are solely responsible for (i) maintaining the confidentiality and security of Your Access Information, and (ii) all activities that occur in connection with Your Account, whether initiated by You, by others on Your behalf or by any other means. You will notify Company immediately of any unauthorized use of Your Account, Access Information or any other actual or potential breach of security. You acknowledge and agree that Company will not be liable for any loss that You may incur as a result of any party using Your Access Information, either with or without Your knowledge and/or authorization. You further agree that You may be held liable for losses incurred by Company, any Company Party, or another party due to any party using Your Access Information. Company strongly recommends that You keep Your Access Information in a secure location, take precautions to prevent others from accessing it and change it when necessary to maintain its confidentiality and security. Company specifically disclaims all liability for any activity in Your Account, whether authorized by You or not.
- TERM AND TERMINATION.
2.1. Term. This Agreement shall be effective from Your acceptance of this Agreement and shall continue until the expiration or termination (“Agreement Term”). When You purchase Services from Company setting forth the contract term and other terms and conditions with respect to such purchase. Termination of this Agreement shall not relieve either party from fulfilling its obligations prior to such termination.
- Services are provided on a monthly basis or the Monthly Plan with Company, the Initial Term is the period from the date of Your acceptance of the Agreement through the remainder of that calendar month. The Renewal Term for the Monthly Plan is defined as one (1) calendar month beginning at the end of the Initial Term and each subsequent calendar month thereafter.
- Automatic Renewal. Each Schedule will renew automatically at the end of the then current month for a Monthly Renewal Term unless terminated in accordance with this Agreement by either You or Company.
2.2. Termination by You.
- You may terminate any Schedule for any reason by following providing Company at the end of the next monthly billing cycle (for example, if you wish to terminate on the Agreement on May 31st, you must provide notice no later than the last weekday of April and you must pay the fee for the month of May).
- Refunds/Fees for Termination by You. Fees for non-recurring Services and set up fees will not be refunded. Any fees previously waived, discounts, or rebates applied may be reinstated if You
breach this Agreement.
2.3. Termination by Company.
- 15-Day Termination. Company may terminate this Agreement or any Schedule for any reason by providing fifteen (15) calendar days’ notice. If Company terminates this Agreement pursuant to this Section 2.3(a), then all services will terminate at the end of the fifteen (15) day notice period. If Company terminates pursuant to this Section 2.3(a), then (i) for an Agreement with a Monthly Plan, if the effective termination date occurs prior to the end of the then-current Term, Company will refund (or refrain from charging You) the pro rata monthly fees for the month in which Services terminate and (ii) for an Agreement with an Annual Plan, Company will refund (or refrain from charging You) the monthly fees for the month in which Services terminate. For Schedules with either a Monthly Plan or an Annual Plan, if Company terminates this Agreement, including any Schedule, pursuant to this Section 2.3(a), Company will not charge You monthly fees for any month following the month in which Company terminates this Agreement, including any Schedule.
- Immediate Termination. Company may terminate this Agreement, including any and all services, (or suspend Your Account) immediately and without prior notice for any of the following reasons:
1) Any material breach of this Agreement by You, as determined by Company in its sole discretion, including, but not limited to, failure to make any payment when due, violation of the AUP or any other Company policy or procedure applicable to the Services as notified to You from time to time, which remains uncured beyond thirty (30) day notice by Company; or
2) If Your use of the Services results in, or is the subject of, actual or potential legal action or threatened legal action, against Company or any of its affiliates, vendors, partners, representatives, or customers, without consideration for whether such actual or potential legal action or threatened legal action is eventually determined to be with or without merit.
- Termination or Suspension of Users. In lieu of terminating or suspending Your entire Account, Company may suspend Your Account or terminate or suspend individual Users.
- No Refunds; Further Payment Due. If Company terminates this Agreement, including any and all services, pursuant to Section 2.3(b), (i) Company will not refund to You any paid fees and (ii) You will be liable for any payment that would have been due had You terminated pursuant to Section 2.2.
2.4. Outboarding Following Termination. Termination will not cancel or waive any fees owed to Company or incurred prior to or upon termination. You agree that Company may charge such unpaid balance to Your Account on file or otherwise bill You for such unpaid balance. Upon termination, You must promptly Outboard and promptly uninstall all software provided by Company in connection with the Services. All of Your Data will be irrevocably deleted promptly (as soon as fourteen (14) calendar days) following the termination of this Agreement, including but not limited to, databases, contacts, calendars, e-mail, website content, and any Data hosted by Company. It will be solely Your responsibility to secure all necessary Data from Your Account prior to termination. Company will not be responsible or otherwise liable for any loss of Your Data or any damages arising from the deletion of Your Data following termination of the Services.
- FEES, BILLING, TAXES, CHARGES AND PAYMENTS.
3.1. Fees. The fees initially charged upon ordering any Service will be effective for the applicable Initial Term and each Renewal Term, provided, that Company will have the right to increase these fees at any time upon thirty (30) calendar days’ notice to You. If You do not agree with such fee increase, You will have the right to terminate the applicable Schedule immediately upon notice received within thirty (30) calendar days of date of notice of the fee increase and You will be required to adhere to the requirements of Section 2.4 Outboarding Following Termination. All payments made to Company shall be in US Dollars.
3.2. Billing and Payment Arrangements. Company will bill You monthly for all established and recurring fees, and any applicable one-time fees in that month, including but not limited to interest, check paying program fees and returned check fees. Pro rata billing may occur throughout the course of a billing cycle for feature add-ons that You enable on your Account during any given month.
3.3. Payment by Automated Means.
- Payment by automated means includes any form of automated payment accepted by Company from time-to-time, including credit card, debit card, direct debit or other means.
- You must provide Company with valid automated payment information as a condition to receive or use the Services. You are responsible for and agree to update Company with any changes to Your billing and/or automated payment information (e.g., new or updated credit card, credit card expiration date or other payment account information). By providing Company with the automated payment information, You authorize Company to charge Your automated payment account for any amounts arising from or relating to the Services without further authorization from You. It is Your responsibility to keep Your automated payment information up-to-date. If charges to Your automated payment account fail, Company will email a warning to Your Account billing contacts.
- If Company is unable to successfully process Your payment by automated means by the seventh (7th) calendar day of the month for which the payment is due, Your payment will be considered late and not paid in full. Company may suspend or terminate Your Account in accordance with Section 2.3(b)(i) for failure to timely pay in full. Late payments are subject to a late-payment charge of the greater of (i) interest calculated at the lesser of (x) eighteen percent (18%) per year and (y) the maximum amount permitted by law and (ii) twenty-five dollars ($25). Such interest will accrue daily from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You will pay the interest immediately on demand. You will pay all collection costs incurred by Company (including, without limitation, reasonable attorneys’ fees).
3.4. Fees for Excess Use. You agree to monitor and maintain Your Accounts within all Company-specified limits and in a manner that does not disrupt the activities of Company and other Company customers and users. If Your usage exceeds the limits for Your Account or may disrupt the activities of other Company customers, You agree that Company may immediately, in its sole discretion, (i) charge You for such excess usage via Your automated payment account, or by invoice if You have been accepted into Company’s check paying program, (ii) upgrade You to a plan or increase the limits on Your Account to address this excess usage, and/or (iii) suspend Your Account or terminate Your Account upon notice To You. Usage and associated charges for excess usage will be determined based solely upon Company’s collected usage information. Unused monthly allotments will not accrue or carry over from one month to any other month. Upon any upgrade or increase on the limits of Your Account, You will be responsible for the new costs and fees.
3.5. Taxes. In addition to Company’s charges, You will be liable for all taxes, governmental fees and assessments related to fees and charges charged to You under this Agreement or otherwise in respect of Your use of the Services. Company will bill you for any sales, usage or other taxes that apply with respect to (i) the Services that You purchase and (ii) the jurisdiction of Your billing address (or, as required, any other relevant business locations).
3.6. Fees for Additional Services. You agree to pay Company’s then-current rates and expenses, including the cost of Company’s vendors, for any requests related to information retrieval, subpoenas, consulting and advisory services, or similar work.
3.7. Bill Disputes. You will notify Company of any dispute relating to charges billed to Your Account by submitting a Billing Dispute Notification Form (available through Company’s customer service) to Company within thirty (30) days of the date the disputed charges appeared on Your Account. The existence of a dispute will not relieve You from paying any and all amounts billed hereunder. You waive all
rights to dispute any charges not disputed by written notice as required above.
3.9. Electronic Billing and Documentation. All billing and other documentation regarding the Services will only be provided electronically (“Electronic Documentation”). You acknowledge and agree that You are able to view all Electronic Documentation and consent to receiving Electronic Documentation and decline to receive hard copies of any such materials. Your payments and any payments you receive will be in accordance with this Agreement and Stripe, Inc.’s Service Agreement (the “Stripe Services Agreement”), that provides for the automated payments services in accordance their agreement as found at https://stripe.com/legal#section_a. By agreeing to this Agreement, you are also agreeing to the Stripe Services Agreement.
- USE OF THE SERVICES.
4.1. Internal Use. You will use the Services for Your own internal business, non-residential and non-personal use. You acknowledge and agree that You will not allow any third party, including Your vendors and service providers, to access or use the Services unless such third party is allowed access for the purpose of providing authorized customer support services or in connection with Your appropriate use of the Services for Your own business purposes.
4.2. Restricted Activities. You will not (i) use any Service for any purpose outside the Service’s intended scope, features, and function set, (ii) use any Service for third-party training, (iii) use any Service as an application service provider or service bureau, unless You have entered into a separate written agreement with Company to provide such services, (iv) use any Service for timesharing or rental, (v) use any Service to design software or other materials or services with similar or competitive functionality for any purpose, including distribution to third parties, (vi) except with respect to Your Data, duplicate any portion of the Services or display, distribute, publish, or otherwise disclose any Service; (vii) use any of the Services to interface with any other service or application that is outside the scope of intended use; (viii) decompile, disassemble, or otherwise reverse engineer any portion of the Services; (ix) make any modification or interface to any Service that is not specifically authorized by Company without prior written consent of Company; (x) resell or sublicense any portion of the Services, and any purported resale or sublicense will be void; and (xi) store, maintain, or use on or through the Service any “Protected Health Information” or “PHI” as those terms are defined in the Health Insurance Portability and Accountability Act of 1996 and the rules and regulations promulgated thereunder, as each may be amended from time to time, unless a formal Business Associate Agreement has been executed between Company and You. You may not access the Services for purposes of monitoring their performance, availability, or functionality, or for any other benchmarking or competitive purposes, without Company’s prior written consent. You may not, without Company’s prior written consent, access the Services if You are a direct competitor of Company.
4.3. Applicable Law. You acknowledge and agree that access and use of the Services may be restricted or limited as a result of Applicable Laws and that You will not use or allow the use of the Services in contravention of, and will comply with, any Applicable Law. You represent that (i) You and Your Users are not named on any Government Authority list of persons or entities prohibited from receiving exports, and (ii) You will not permit Users to access or use Services in violation of any export embargo, prohibition, or restriction. You acknowledge and agree that that it is Your sole responsibility to use the Services in a lawful manner. You further acknowledge that you are responsible for all privacy requirements under any Federal Laws and regulations and all provisions and regulations of the California Consumer Privacy Act, any similar laws and regulation regarding the privacy of Your users or customers.
- YOUR DATA; FEEDBACK.
5.1. Submission of Your Data. Any Data You provide to Company in connection with the Services must comply with the AUP. Any Data You provide to Company in connection with the Services shall not be PHI. Attempting to place or transmit, or requesting placement or transmission, of Data that does not comply with the AUP or is PHI will be a material breach of this Agreement. Company may, in its sole discretion, reject or remove Data that You have used or attempted to use with respect to the Services. Any Data used with respect to the Services by or through You will be free of any and all malicious code, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, computer viruses and mechanisms that may disable or negatively impact the Services or Company’s servers. You hereby represent and warrant to Company that You have the right to use any patented, copyrighted, trademarked, proprietary or other material in connection with Data that You use, post, or otherwise transfer or transmit with respect to the Services.
5.2. Public Disclosure of Data. You are solely responsible for ensuring that You do not accidentally make any private Data publicly available. Any Data made public may be publicly accessible through the internet and may be crawled and indexed by search engines or other third parties. By making any Data publicly available on any of the Services You affirm that You have the consent, authorization or permission, as the case may be from every person who may claim any rights in such Data to make such Data available in such manner.
5.3. Data Takedown. By making any Data publicly available in the manner aforementioned, You expressly agree that Company will have the right to block access to or remove such Data made available by You, if Company receives complaints, inquiries or notices concerning any illegality or infringement of rights in such Data. You expressly consent to determination of questions of illegality or infringement of rights in such Data by the agent designated by Company for this purpose.
5.4. Filtering. Company may employ various filtering methods to reduce unwanted content, such as SPAM e-mail, from reaching Your Company Account. You acknowledge and agree that such methods may prevent legitimate content from reaching Your Account and that Company will not be liable therefor.
5.5. Control. Company is not obligated to exercise control over the content of information, including Your Data, passing through Company’s network except any controls expressly provided in this Agreement.
5.6. Feedback. Any feedback, suggestions, testimonials, endorsements, information, or materials conveyed to Company by You or Your Users in connection with the Services shall be collectively deemed “Feedback.” You agree to grant and hereby grant to Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Feedback without restriction.
- CONFIDENTIALITY AND PRIVACY.
6.1. Confidential Information. “Confidential Information” is all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information will include Your Data. Company’s Confidential Information will include the Services (and any portion thereof), the terms and conditions of this Agreement and any Schedules, and all related Service order forms, as well as Company’s business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Company. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. The Receiving Party may disclose Confidential Information to the extent required to comply with binding orders of governmental entities that have jurisdiction over it; provided however that, to the extent legally permitted by law to do so, the Receiving Party gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy and discloses only such Confidential Information as is required by the governmental entity. You acknowledge that Company, and its licensors, retain all intellectual property rights and title, in and to, all of their Confidential Information and/or other proprietary information. This shall include, but not be limited to products, services, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the Services provided by Company hereunder.
6.2. Protection of Confidential Information. Except as otherwise permitted by this Agreement or in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as protective of Disclosing Party and its Confidential Information as the provisions of this Agreement.
- LIMITED WARRANTY; LIMITATION ON LIABILITY; THIRD-PARTY SERVICES.
7.1. Limited Warranty; Limitation on Liability. Company provides the Services and any related products on an “as is” basis. You expressly agree that use of the Services is at Your sole risk. Company and the Company Parties expressly disclaim all warranties of any kind, whether express, implied, statutory, or otherwise, oral or written, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. You hereby agree that the terms of this Agreement, including any Schedule, will not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this Agreement, including any Schedule. Company and Company Parties will not be liable for any direct, indirect, incidental, special, punitive, or consequential damages (including but not limited to damages for lost profits, business interruption, loss of programs or information, and the like) in connection with any claim arising under or in connection with this Agreement or the Services provided hereunder, regardless of whether Company or any Company Party has been advised of such damages or their possibility. Company will not be liable for any harm that may be caused by Your access to application programming interfaces or the execution or transmission of malicious code or similar occurrences, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, viruses and similar mechanisms. You agree that the total liability of Company and any Company Party and Your sole remedy for any claims (i) regarding the Services for which a remedy is limited to the credits set forth in such service level agreement; and (ii) regarding the Services, other than those specifically described in clause (i) of this Section 7.1, is limited to the lesser of (a) One Thousand Dollars ($1,000) and (b) the prior one (1) month of Service fees paid under this Agreement by You to Company.
7.2. Other Limitations and Other Liability.
- Although Company or its Company Parties may perform regular backups or any and all updates of your site and customer content, do not guarantee there will be no loss or corruption of data. Corrupt or invalid backup points may be caused by, among other things, content that is corrupted prior to being backed up or that changes during the time a backup is performed. Company or Company Parties will provide support to you and attempt to troubleshoot any known or discovered issues that may affect your backups, but you acknowledge that we have no liability related to the integrity of your backups or the failure to successfully restore your content to a usable state. You agree to maintain a complete and accurate copy of any customer content in a location independent of the Services.
- None of the Company Parties is responsible to You for any warranty provided by Company.
7.3. Third-Party Services. Company may link to or offer Third-Party Services on Company’s website or otherwise through the Services. Any purchase, enabling, or engagement of Third-Party Services, including but not limited to implementation, customization, consulting services, and any exchange of Data between You and any Third-Party Service, is solely between You and the applicable Third-Party Service provider and is subject to the terms and conditions of such Third-Party Provider. Company does not warrant, endorse or support Third-Party Services and is not responsible or liable for such Services or any losses or issues that result as Your use of such services. If You purchase, enable or engage any Third-Party Service for use in connection with the Services, You acknowledge that Company may allow providers of those Third-Party Services to access Your Data used in connection with the Services as required for the interoperation of such Third-Party Services with the Services. You represent and warrant that Your use of any Third-Party Service signifies Your independent consent to the access and use of Your Data by the Third-Party Service provider, and that such consent, use, and access is outside of Company’s control. Company will not be responsible or liable for any disclosure, modification or deletion of Data resulting from any such access by Third-Party Service providers.
- OWNERSHIP AND CONTROL.
8.1. No Transfer. Except for rights expressly granted in this Agreement, including any Schedules Company does not transfer any intellectual or other property or proprietary right to You. All right, title, and interest in any Service provided to You, including without limitation any copyright, trade secret and vested or potential trademark and patent rights, is solely the property of Company and its vendors and licensors. As between You and Company, all materials distributed by Company in connection with the Services will at all times remain the property of Company, and upon the request of Company or upon termination of this Agreement or any Schedule, You will promptly return any and all such materials.
8.2. Control. Company will have sole and complete control over, and reserves the right at any time to make changes to, the configuration, appearance, content and functionality of the Services. In addition, Company reserves the right, at any time, without prior notice, to the exercise of its sole discretion to suspend or terminate any Service for the protection of the security and integrity of the Services
or other business, technical or financial considerations as determined by Company.
8.3. Feedback License. Company will have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You and Your Users to Company or any Company Party.
- INTELLECTUAL PROPERTY PROTECTION.
Company will, at its own expense, defend or at its option settle, any claim brought against You by a third party on the issue of infringement of any copyright, patent, or trademark of that third party, in each case by the “Company Technology,” as defined below in this Section 10; provided that You provide Company with (a) prompt written notice of such claim; (b) control over the defense and settlement of such claim; and (c) proper and full information and assistance to settle and/or defend any such claim. In the event of any claim for which Company may be obligated to defend or settle in accordance with this Section 10, Company may at its sole option and expense, either: (i) procure the right to use the Company Technology as provided herein, (ii) replace the Company Technology with other non-infringing products with equivalent functionality; (iii) suitably modify the Company Technology so that it does not infringe, or (iv) terminate this Agreement. Company assumes no liability for infringement claims arising from: (1) any combination of the Company Technology with products or technology not provided by Company, if the infringement would not have occurred if the Company Technology had not been so combined; (2) any modification of the Company Technology, in whole or in part, by anyone other than Company, if the infringement would not have occurred but for such modification; (3) use by You of any Company Technology after Company notifies You that continued use may subject You to such claim of infringement, provided that Company provides You with a replacement release of the Company Technology; (4) any proprietary or intellectual property rights not expressly identified in this Section 10; or (5) any non-United States proprietary or intellectual property rights. “Company Technology” means the software of Company which is delivered to You in connection with Your use of the Services. This Section 10 sets forth the entire liability and obligations of Company, and Your exclusive remedy, with respect to any actual or alleged infringement of any intellectual property or proprietary right by the Services. The terms of this Section 9 are subject to the limitations of Section 7.
You agree to defend, indemnify, save, and hold Company and the Company Parties harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against them that may arise or result from Your use of the Services, Your breach of this Agreement (or any Schedule), or Your negligence or willful misconduct.
- MODIFICATION OF TERMS.
12.1. Governing Law; Jurisdiction; Forum; Attorneys’ Fees. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws or its principles. Any claim or suit arising out of or relating to this Agreement will be brought in the Superior Court of California in and for the County of San Diego and any and all right to a Jury Trial by You or Company are waived upon the acceptance of this Agreement by You. In any action to enforce this Agreement, including, without limitation, any action by Company for the recovery of fees due hereunder, You agree to pay Company’s reasonable attorneys’ fees and costs in connection with such action if Company prevails in such action.
12.2. Written Communications and Notice. You accept that communication from Company will only be electronic. Company may contact You by e-mail or provide You with information by posting notices on Company’s website or to Your Account. You agree to this electronic means of communication and You acknowledge that all contracts, notices, information and other communications that Company provides to You electronically are acceptable and effective as notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given immediately upon being sent by email to You. You are required to provide Your current email address and current postal business address during the term of this Agreement and failure to update will be a breach of this Agreement that will be result in Termination in accordance with Section 2.3 of this Agreement. Notices to You may be addressed by Company to any e-mail address or postal address of the Company on its website.
12.3. Authority, Age and Capacity. The individual accepting this Agreement on behalf of You represents and warrants that he/she has the authority to bind You to this Agreement. You hereby represent and warrant that each User has reached the older of (i) the age of eighteen (18) and (ii) the age of majority in the User’s jurisdiction, and that You are not subject to a limitation on Your ability to enter into this Agreement.
12.4. Severability. If any one or more of the provisions contained herein will, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any of the other provisions of this Agreement, and this Agreement will be construed as if such provision(s) had never been contained herein, provided that such provision(s) will be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
12.5. Waiver. No waiver by either party of any breach by the other party of any of the provisions of this Agreement will be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver will be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing.
12.6. Remedies. The rights and remedies of the parties hereunder shall not be mutually exclusive, i.e., the exercise of one (1) or more of the provisions hereof shall not preclude the exercise of any other provision hereof. The parties acknowledge, confirm and agree that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be enforceable by specific performance, injunction or other equitable remedy. Nothing contained in this Agreement shall limit or affect any rights at law or statute or otherwise for a breach or threatened breach of any provision hereof, it being the intent of this provision to clarify that the respective rights and obligations of the parties shall be enforceable in equity as well as at law or otherwise.
12.7. No Assignment. No benefit or duty of You under this Agreement will, without the consent of Company, be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so will be void. Company may assign this Agreement without Your consent and without notice (and, as reasonably necessary in connection with any such assignment, may convey Your Account information and Service content to the applicable assignee).
12.8. Fair Interpretation, Headings. This Agreement reflects terms that are mutually agreeable to the parties. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party based on draftsmanship of the Agreement or otherwise. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
12.9. Force Majeure. Except for monetary obligations, neither party shall be liable to the other for failure or delay in the performance of a required obligation hereunder if such inability or delay is caused by reason of Force Majeure Event. “Force Majeure Event” is any cause beyond a party’s reasonable control or anticipation, including, without limitation, acts of war, acts of God, terrorism, earthquake, hurricanes, flood, fire or other casualty, embargo, riot, sabotage, labor shortage or dispute, governmental act, insurrections, epidemics, quarantines, inability to procure materials or transportation facilities, failure of power, restrictive governmental laws or regulations, condemnation, acts of third parties, failure of the Internet or other reason that is beyond a party’s reasonable control or anticipation.
13.10. Survival. The preamble, “Definitions” and Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12of this WHA will survive termination.
13.11. Independent Parties. Notwithstanding anything to the contrary herein, it is acknowledged, confirmed, and agreed that You shall be, and shall be deemed to be, an independent entity for all intents and purposes, including, without limitation, federal taxation. You shall pay all expenses in connection with performing Your obligations hereunder and shall not incur any indebtedness on behalf of Company in connection with such expenses. Neither party shall have or hold itself out as having any right, authority nor agency to act on behalf of the other party in any capacity or in any manner, except as be specifically authorized in this Agreement.
13.12. Entire Agreement; Third Party Beneficiaries. This Agreement, including any Schedules, constitutes the entire agreement for provision of the Services to You and supersedes all other prior agreements and understandings, both written and oral, between You and Company with respect to the Services (including without limitation any prior Master Service Agreement; Dedicated Web Hosting Master Service Agreement; Web, Mail, and Applications Hosting Master Service Agreement; and any other agreement that may have previously been in effect with respect to the Services). You understand and agree that (i) Company and You may include, as the sole third-party beneficiaries of this Agreement, the Company Parties, and (ii) in the event of any breach of this Agreement, such Company Parties shall have all rights and remedies available to them as if they were parties to this Agreement, including claiming the benefit of Section 7 of this WHA.
13.13 Acceptance. This Agreement is executed upon your click through acceptance below.
These Legal Terms and your use of the Services are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law principles.
These Legal Terms shall remain in full force and effect while you use the Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE LEGAL TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE LEGAL TERMS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Legal Terms (each a “Dispute” and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least sixty (60) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the American Arbitration Association (AAA) website. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in United States, California. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in United States, California, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Legal Terms.
In no event shall any Dispute brought by either Party related in any way to the Services be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
These Legal Terms and any policies or operating rules posted by us on the Services or in respect to the Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Legal Terms shall not operate as a waiver of such right or provision. These Legal Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Legal Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Legal Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Legal Terms or use of the Services. You agree that these Legal Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Legal Terms and the lack of signing by the parties hereto to execute these Legal Terms.