Terms and Conditions
You accept the terms of this Agreement by use of any of the Services provided by Software Products.
NOTWITHSTANDING, BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.
Software Products reserves the right to change or modify any of the terms and conditions contained in this Agreement, any Addendums and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Any changes or modification will be effective upon posting of the revisions on the Software Products Web site (the "Site"). Your continued use of Services following Software Products posting of any changes or modifications will constitute your acceptance of such changes or modifications.
1.2. Termination Policy If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable. (a) Software Products will refund to you any fees paid in advance of such termination. Software Products reserves the right to cancel a customers service at any time. If cancellation is caused by customers violation of these policies, then refund will be pro rated for the unused days in a given prepaid month. Your termination request or notice must be submitted to Software Products in the manner described in Section 1.1. Software Products may terminate this Agreement at any time and for any reason by providing to you with email notice thirty (30) days prior to the date of termination.
1.3 Default and Cure In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.
1.4. Charges You agree to pay for all charges attributable to your use of the Services at the then current Software Products prices, which shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on Software Products net income.
1.5. Payment All accounts are to be paid in advance. Once payment is received the account is activated. Each payment is due in our hands on or before the day of month stipulated on the "welcome" email. Customer will be not be notified of pending deactivation prior to the due date. Failure to make payment will be cause for termination and/or deactivation of the account. A minium of a five dollar reactivation charge will apply. Payment must arrive on time. No exceptions. All charges for Services must be paid in advance. You agree to pay to Software Products the amount indicated in the "welcome" email by the due date reflected on the "welcome" email. If you fail to pay any fees, taxes, late charges, reactivation charges by the applicable due date then the account will be subject to termination.
1.6. Refund Policy The Customer has seven days to do a "trial version" with our package. In this seven day period the customer has the right to cancel or demand a full refund if they are not satisfied with the service. However, after exceeding this seven day period the customer will not be entitled to a full refund and payment will be expected until a cancellation is requested by email to email@example.com. However, upon cancelation by the customer, the customer will be entitled to a pro rated refund for any unused prepaid days in the month the customer cancelation occurs. This refund policy applies only to Software Products Web hosting Services.
2.2. Material and Product Requirements Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on Software Products equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Software Products. Software Products will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", Software Products has the option at any time to reject this material. Software Products will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Software Products. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not Software Products responsibility to provide this knowledge or customer support outside of the Services agreed to by you and Software Products.
2.3. Bandwidth and Storage Usage You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to pay the associated additional charges.
3.2. Actions Software Products reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third parties rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, Software Products may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Software Products systems, and/or (d) disabling or removing any hypertext links to third party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by Software Products which, in Software Products sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Software Products to civil or criminal liability or public ridicule. It is Software Products policy to terminate repeat infringers. Software Products right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If Software Products takes corrective action due to such possible violation, Software Products shall not be obligated to refund to you any fees paid in advance of such corrective action.
3.3. Disclosure Rights To comply with applicable laws and lawful governmental requests, to protect Software Products systems and customers, or to ensure the integrity and operation of Software Products business and systems, Software Products may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Software Products servers and systems. Software Products also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
4.2. Software Products Materials and Intellectual Property All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Software Products or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Software Products to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Software Products or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Software Products during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
4.3. Trademarks You hereby grant to Software Products a limited right to use your trademarks, if any, for the limited purpose of permitting Software Products to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.
5.2. No Express or Implied Warranty ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY SOFTWARE PRODUCTS UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY FACT OR LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT SOFTWARE PRODUCTS EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH SOFTWARE PRODUCTS COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. SOFTWARE PRODUCTS DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED THIS AGREEMENT, SOFTWARE PRODUCTS DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT.
5.3 Your Warranties and Representations to Software Products You warrant, represent, and covenant to Software Products that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content and/or any software that you install or provide does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
6.2. Interruption of Service You hereby acknowledge and agree that Software Products will not be liable for any temporary delay, outages or interruptions of the Services. Further, Software Products shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, packet loss, server crashes, communications or third-party supplier failure).
6.3. Maintenance You hereby acknowledge and agree that Software Products reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. Software Products will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.
7. Indemnification You will defend, indemnify and hold harmless Software Products and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnities") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnities by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your use of the Services, including any improper or illegal uses; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by Software Products; or (v) any claim relating to your services or products, or your installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).
8.1 Confidentiality The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.
8.2. Notices All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.
8.3. Choice of Law and Forum THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN SAN BERNARDINO COUNTY, CALIFORNIA, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
8.4. Entire Agreement This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.
8.5. No Fiduciary Relationship; No Third Party Beneficiaries Software Products is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
8.6. Assignments You may not transfer or assign your rights, duties, or obligations under this Agreement without Software Products prior written consent. Software Products may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.
8.7. No Waiver Software Products failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Software Products right to subsequently enforce such provision or any other provisions under this Agreement.
8.8. Severability If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
8.9. Survival All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.