Last Updated: 12/3/12
Agreement and Acceptance
BY CHECKING THE “I AUTHORIZE MY CREDIT CARD TO BE CHARGED THE SETUP FEE AND HAVE READ AND AGREE TO THE TERMS AND CONDITIONS” BOX, CLICKING THE “SIGN ME UP” BUTTON ON OUR SIGN-UP PAGE, LOGGING IN TO YOUR ACCOUNT, ACCESSING THIS WEB SITE OR BY ACCESSING OUR SERVICES VIA ANY API INTERFACE, OR BY OR ENGAGING US FOR SERVICES YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND, ACCEPT AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT.
This General Terms of Service Agreement (this “Agreement”) is entered into by and between Sevence, LLC, d/b/a SpaBoom (hereinafter “Company,” “We,” “Our,” or “Us”) and you, Our customer (hereinafter “Customer,” “You” or “Your”), and is made effective as of the date You first access Our website or take one of the actions set forth above. Each party hereto to may be referred to herein as a “Party” and together as the “Parties.” This Agreement sets forth the general terms and conditions of Your use of Our products and “Services” (as defined below) purchased or accessed through SpaBoom or any SpaBoom website, and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular elements or portions of the Services that You purchase or access through Us or this website.
These Terms of Service, the AUP, Privacy Statement and other agreements that pertain to the Services available for Your use are collectively referred to herein as the “Fine Print.” You agree to read and abide by the Fine Print and acknowledge that these agreements are intended to protect the enjoyment of Services for all Our users, and that any violation of the Fine Print could result in immediate termination of Services without notice to You. You further agree that We may amend or make modifications to Our Fine Print from time to time and without notice to You.
1.1. “Account” means completed relationship where We have granted You the access codes or credentials that enable you to use, examine or receive the Services as defined below.
1.2. “Company Site” is the Internet website(s) and servers controlled or managed by Us and/or Our contractors and from which the Services are delivered.
1.3. “Content” includes any information, text, music, sound, photographs, video, graphics, works of authorship, applications or data that is generated, published or distributed in any medium. Content may include, without limitation, articles stories, promotions, and information about a business, industry or subject that is created or distributed using the Services. Content provided by You may be referred to herein as “Your Content.” Our proprietary Content as well as any Content delivered by the CMS (defined below), created, conceived or developed by Company may be referred to herein as “Company Content.”
1.4. “Content Marketing Service” or “CMS” means any provision of the Services that includes providing Content generation, Content publication, Content management, Content delivery, Content customization and formatting, website or webpage creation and management, email communication, online scheduling, gift certificates, coupons, vouchers, social medial tools and other online functionality as may be further described at www.spaboom.com/features. The Services are accessible at the Company Site through commercially available web browsers over the Internet and include any updates that may be provided by SpaBoom hereunder.
1.5. Dynamic Website” means the websites built and hosted using the portion of the Services that comprise Company’s proprietary website content management system as further described at www.spaboom.com/features. Dynamic Websites may be “Theme-Based” meaning the layout is a prebuilt design or “Custom” meaning it was designed and built for a particular user and may be referred to herein as a “Theme-Based Dynamic Website” or a Custom Dynamic Website respectively.
1.6. “Fees” means any and all sums payable to Company by you.
1.7. “Marketing Suite” means the portion of the Services that comprise Company’s proprietary technology for web-based marketing services as further described at www.spaboom.com/features.
1.8. “Services” means any and all Work Product, functionality, advice, consulting or other work or efforts expended, loaned, leased, rented, given or otherwise provided to You by Us, whether over the Internet or otherwise. The Services include our proprietary internet-based marketing functions including; Content generation, Content publication, Content management, Content delivery, Content customization and formatting, website/page creation and management, email marketing, online scheduling, online gift certificates, coupons, vouchers, social medial tools and other online functionality as well as a control panel for users to manage their Account, obtain reports and adjust Account parameters. The Services are accessible at the Company Site through commercially available web browsers over the Internet and include any updates that may be provided by Company hereunder.
1.9. “Work Product” means, the copyrights, Company Content (as defined herein), look-and-feel, layout, programming, material, designs, discoveries, products, programs, routines, procedures, processes, formulas, know-how, techniques, improvements, developments, drawings, notes, documents, templates, images or elements within a design, font styles, images within fonts or elements, information and materials made, conceived or developed by Company alone or with others in the performance of the Services, including without limitation, any and all materials provided to You hereunder by Us.
1.10. “Voucher” means any card, code or other device issued via the Services, including without limitation any physical or electronic certificate, which is redeemable by a customer for goods or services. Each Voucher will contain the terms of, and unique redemption information pertaining to, its use.
2. License and limitations
2.1. Company hereby grants You a non-exclusive, non-transferable, worldwide right to use the Services, solely for Your own internal business purposes, subject to the Fine Print and during the term of this Agreement.
2.2. You will not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the Services or Company Content in any way; (ii) modify or make derivative works based upon the Services or the Content; (iii) “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services.
3. Fees and Payment Policies
3.1. Fees. You will pay to Company the setup and recurring Fees for the Services selected by You during the set-up or Account initiation process. The Fees for each period of the Term will be the then current Fees for the Services on an as-quoted basis.
3.2. Automated Payment. You hereby grant Company permission to charge Your credit card for any and all Services on a recurring basis. We charge and collect Fees in advance for Your use of the Service, except for Commissions Fees (if any), which will be paid in arrears. We will automatically renew and bill your credit card or other automated billing arrangement every month for monthly Fees and anytime after signup for any setup or non-recurring Fees. You can review a detail report of Your Fees by logging into your Account. If you feel the Fees in such report are in error you must notify Us of such error within 5 business days after You are charged. All Fees are non-refundable, except as otherwise provided herein.
3.3. Enforcing Payment. We reserve the right to take any action We deem necessary to secure payment for Services, including but not limited to suspending or deactivating any and/or all Services. You agree to indemnify and hold Us harmless from any liability resulting from Our actions attempting to secure payment for Services.
3.4. Taxes. All Fees are exclusive of all taxes, duties or levies; however they are designated or computed. You will be responsible for, and pay all taxes based on payments due as a result of paying for and/or receiving Services, which may include but are not limited to gross receipts, sales, use, or value-added taxes, duties, withholding taxes and other assessments now or hereafter imposed, exclusive of taxes based upon Company’s net income.
4.1. Term. Unless terminated as set forth herein, these Terms of Service will commence on the first day You pay any Fee to Company or use any Service delivered to Company, and will continue through the end of that calendar month. Thereafter, this Agreement will automatically renew on a month-to-month basis until terminated by either Party with at least thirty (30) days notice to the non-terminating Party or otherwise terminated per the terms of the Fine Print. The initial term and any renewals will collectively be referred to as “Term.”
4.2. Effect of Termination. Upon termination of Services, the following shall apply:
4.2.1. All rights and obligations provided under the sections entitled “Confidentiality” and “Indemnity, Warranty and Liability” shall survive termination for any reason.
4.2.2. Neither Party shall be liable to the other for any damages, losses, costs or expenses whatsoever on account of such termination arising from or in connection with the loss of prospective sales, expenses incurred or investments made with the establishment, development or maintenance of either Party’s business.
5. Company Responsibilities
5.1. Maintenance. Company shall be responsible for maintaining Services; and shall strive to keep all functionality and sensitive data secure; and shall issue updates from time to time.
5.2. Support. Company shall be responsible for providing documentation, training, support and access to Services.
6. Your Responsibilities
6.1. Unless you are using CMS or Marketing Suite portion of the Services, Your rights to use any of the Services are expressly conditioned upon Your placement and maintenance of a prominent link to the “Instant Gift Certificate page associated with Your Account on Your home page and any other pages upon which We reasonably request such link to be displayed. If We determine in our sole discretion that You are manipulating Your Account to use Services and avoid Fees We may terminate Your Account and Your access thereto.
6.2. Gift Certificates, Vouchers and Coupons: You shall honor for each and every Voucher sold or delivered using the Services according to the applicable laws and the Gift Certificate Terms and Conditions listed at the bottom of transactional pages served by the Services. You agree to use the Services to track the sales and redemption of Vouchers, or use Your own method of accounting, so that You can keep track of the outstanding liability associated with unredeemed Vouchers. If You sell, transfer ownership, or close Your business, You agree to factor in any unredeemed Vouchers as a liability for the appropriate party. Company is not responsible for Your failure to meet any and all notice requirements and redemption periods that may be required by law.
6.3. Your Third Party Systems. The Services may use data from, or post data to a system You use that is supplied by a third party (each a “Third Party System”). Examples include without limitation social media accounts, scheduling systems, point of sale systems and email service providers. You will facilitate the set up or integration with the Services for such Third Party Systems and be responsible for maintaining such integration. We will not be responsible in any way for any modification or substitution of such Third Party System that interacts with the Services, which may compromise the performance thereof.
6.4. Legal Compliance and Content.
6.4.1. You are responsible for compliance with all applicable federal, state and local laws. You shall be responsible for collecting and paying any and all taxes of a transactional nature, including but not limited to gross receipts, sales and use taxes that may be required in the jurisdiction(s) where You are registered, located, or conducting business.
6.4.2. You affirm that the person executing or accepting this Agreement has the capacity and authority to legally bind You under applicable law.
6.4.3. You agree that You have the appropriate rights or licenses for Your Content as well as all logos, trademarks or intellectual property supplied by You. You also agree that You will not use the Services to display any Content determined objectionable by Company in its sole discretion.
6.4.4. You represent and warrant that You will not violate any law, third-party rights, or post any false, inaccurate, misleading, defamatory or libelous Content or statements using the Services.
6.5. Relationship with Company.
6.5.1. You agree that Your requests shall be reasonable in nature and within the scope of the Services You are purchasing as communicated to You by an authorized Company representative.
6.5.2. You will designate a contact for Company that will respond to any requests for feedback within seven (7) days. Failure to respond within thirty (30) days may result in a non-refundable cancellation of the Services. The person, email address and phone number in the “contact information” section of Your Account will be the designated contact.
6.5.3. Any failure to remit Fees to Company, respond to Company in a timely manner, use of the Services in any way prohibited by law, regulation, this Agreement or any use that Company in its sole discretion might have a negative effect on Company’s image or create liability for Company may result in the immediate suspension or termination of Your Account.
6.6. Credit Card Transaction Processing. You agree to abide by the following terms and conditions related to Credit Card Transaction Processing:
6.6.1. You shall indemnify and hold Company harmless from any relevant bank fees, bank charges, chargebacks or any other fees, charges or penalties related to Your acceptance of credit cards over the Internet or in Your business.
6.6.2. You are responsible for establishing and maintaining Your own merchant account and bank account, as necessary, to process credit card transactions over the Internet or in Your physical location(s).
6.6.3. You agree to keep credit card information secure and only make it available, if at all, only to the minimum number of individuals necessary to process legitimate credit card transactions; and You further agree to adhere to any security requirements imposed by Your merchant account, payment gateway or any credit card company, including, without limitation, those requirements set forth in the PCI Data Security Standard.
6.6.4. Company is not responsible for fraudulent charges or illegal activity You may encounter over the Internet, including but not limited to fraudulent purchase or use of Vouchers.
6.7. Security. You will create a unique username and password for the Services for each person who has access thereto, and will not permit such persons to share username or password information. You are responsible for all activity that takes place within Your Account. The security of passwords and access to Your Account is entirely Your responsibility. You will notify Us as You learn of any unauthorized access to or use of Your Account. You will disable the passwords or account access for any persons who terminate employment with You or otherwise should not have access to your Account.
7. Maintaining Successful Customer Relationships. You agree to abide by the following requirements as it relates to business ethics and operational guidelines:
7.1. You agree to timely respond to the online requests and email of Us, as well as Your customers.
7.2. You agree to honor and fulfill all the products and services You sell over the Internet.
7.4. You agree to maintain, publish and adhere to a Terms of Service compatible with Company’s; or alternatively, herby approve the various Fine Print that We publish on Your webpage(s). You understand and agree that the various Fine Print published on Your webpage(s) is a contract between You and Your customers, and You will abide by that contract, as well as indemnify and hold Company harmless for any breaches You commit against any of the Fine Print displayed on Your webpage(s).
7.5. You are responsible for ensuring that the products or services You sell or make available are not illegal, are accurately represented and that the Content of Your webpages and related offerings do not infringe the rights of others.
7.6. You agree that We are not responsible for any disputed business transaction/s resulting from Your online and e-commerce activities or use of the Services.
7.7. Timely Reporting of Problems. You agree to notify Us as quickly as practical, when You become aware of any critical failure in Services or breach of security.
8. Email. You agree to abide by the following terms and conditions related to construction and use of any portion of the Services that sends email to consumers:
8.1. You will not use the Services to send unsolicited email or communication for any unlawful purposes.
8.2. You agree not to employ or otherwise use any mailing lists owned, prepared or created by a third-party or otherwise create or dispense unsolicited email, in connection with the Services.
8.3. You agree will exclusively import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from You (“Permission Based Lists”) in connection with Your use of the Services. The fact that of a person or entity delivered an email address to You is not consent to receive ongoing commercial correspondence from You. Full consent to receive other correspondence from You is evidenced by the respondent or registrant opting into the “May we send you occasional announcements” link in the course of purchasing a Voucher, visiting Your website and submitting their email address, entering a contest or sweepstakes, adding their name to a written request for correspondence or registering for one of Your events and confirming such consent in an email delivered to the address that was submitted. You shall not use any other lists with the Services.
8.4. You acknowledge that all intended recipients will not receive every email message sent via the Services and agree that there is not expectation between the parties of any particular delivery rate, open rate or click through rate.
8.5. Each and every email message sent by You in connection with the Services must contain an “unsubscribe” link that allows the recipient to remove themselves from Your mailing list and you will not attempt to modify or disable any such link generated or included in the Services.
8.6. You will comply with all the restrictions on content of any messages and activities using the Services set forth or referenced in the Fine Print.
8.7. You agree that you will not use the “from” line of any email message sent by You using the Services in a deceptive way and that such “from” line will accurately identify You or Your organization. You agree that the “subject” line of any email message sent by You using the Services will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
8.8. You acknowledge and agree that You are the sole or designated “sender” (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by You using the Services. All Your use of the Services will comply with this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although We have no obligation to monitor the content provided by You or Your use of the Services, We may do so and may block any email messages, remove any such content, or prohibit any use of the Services that We believe may be (or is alleged to be) in violation of the foregoing.
8.9. Company will not, without Your permission, sell or rent Your email lists to any party, not use Your email subscriber list for Our internal marketing or promotional purpose other than providing the Services.
9. SMS Messaging. You agree to use a double opt-in process for new short message service (otherwise know as “text message” or “SMS”) recipients. Such double opt-in process will include a process such that (i) You may only use the text message portion of the Services for those subscribers with whom You have an existing business relationship and that have indicated their acceptance of SMS correspondence from You and (ii) such subscribers must reply to an opt-in message from their SMS enabled device. You will not attempt to spoof sender domains, send spam or other offensive SMS practices including those covered in Section 8 above. SMS messages are limited in their length, content and the network of the subscriber. We make no expressed or implied warranties of individual message delivery or receipt. SMS rates apply for all text message sent via the Services and may include Fees in excess of Your standard monthly Fee. In the event we enable “short code” technology to enable 2-way SMS communication between You and Your subscribers we do not guarantee delivery to any mobile carriers that do not support or accept short codes. We are not liable for any issues that arise associated with any Content transmitted or delivered via SMS.
10. CMS. The following terms and conditions apply to Your use of any portion of the Services that includes the CMS:
10.1. CMS will prepare Company Content for You at regular intervals and schedule such Company Content for publication, delivery or posting on Your behalf via any form of media then enabled to use the Services (any such publication, delivery or posting a “Post”).
10.2. You will have the opportunity to review, modify, postpone or cancel all such Company Content before it is Posted, provided however, IF YOU DO NOT REVIEW SUCH COMPANY CONTENT IT WILL BE POSTED ON YOUR BEHALF AND ANY FAILURE BY YOU TO ACCESS YOUR ACCOUNT AND SUSPEND, DELAY OR MODIFY COMPANY CONTENT BEFORE IT IS POSTED SIGNIFIES YOUR EXPRESS APPROVAL OF SUCH POST(S) AND YOU WILL HONOR ANY OFFERS OR PROMOTIONS CONTAINED THEREIN.
10.3. Company will have no liability to You for any such Posts.
11. Dynamic Websites. You agree to abide by the following terms and conditions related to construction and use of any Dynamic Website:
11.1. You agree that You will not use a Dynamic Website to display any content determined objectionable by Company in its sole discretion. You represent and warrant that You will not violate any law, third-party rights, or post any false, inaccurate, misleading, defamatory or libelous content or statements on Your web site.
11.2. Failure of your designated contact to respond within thirty (30) days may result in a nonrefundable cancellation of the Dynamic Website.
11.3. Within ten (10) days of notice that Your Dynamic Website is ready for Your review, You will: (i) provide Us with Your requested revisions; or (ii) notify Us that You have no revisions. Failure to respond to such notice will be deemed acceptance of Your Dynamic Website and may result in Company publishing Your Dynamic Website on Your behalf.
11.4. You hereby expressly acknowledge and agree that publication of Your Dynamic Website signifies Your acceptance of Company’s work and all of Our obligations to develop the Dynamic Website have been satisfied.
12. Proprietary Rights & Intellectual Property. The Parties intend and agree that ownership in any and all Intellectual Property remain with the Party that created or introduced the relevant material, and in particular (i) marks that uniquely identify You reside with You, and (ii) any and all Work Product and other copyrightable works created by Company and/or which uniquely identify Company reside exclusively with Company.
12.1. Ownership. You and Company expressly agree that all Work Product, including without limit Company Content, shall remain the sole and exclusive property of Company.
12.2. Custom Logos and Custom Dynamic Websites. In the event Company creates a custom logo (“Custom Logo”) for You, upon payment in full of any Fee for such design and subject to Your compliance with this Agreement, You shall own the final such Custom Logo provided to You by Company. In the event Company creates a Custom Dynamic Website for you, upon payment in full of (i) any set-up or non-recurring Fee for such design, (ii) one (1) full year of monthly Fees for use of such Custom Dynamic Website, and (iii) subject to Your compliance with this Agreement, You will have a perpetual world-wide license to use the design for such Custom Dynamic Website independent of the Services. If you cease to use the Services We will have no obligation to host or provide a finished version or such Custom Dynamic Website that can be served without the Services. If We have created a Custom Logo or Custom Dynamic Website (collectively a “Custom Design”), You shall not own any materials, media or other Content generated during any revision cycles leading up to the final Custom Design, which will be considered Work Product to the purposes of this Agreement, and Company expressly reserves all right, title and interest in and to the same. You acknowledge and hereby grant to Company a royalty-free, irrevocable exclusive worldwide right to use any and all materials, correspondence and responses provided to You, and as well as the Custom Design for internal and archival purposes, and in order to display and promote the Services. Company retains the rights to all artwork concepts and other Content not selected by You. You acknowledge that any rights transferred to You under these Terms and Conditions are limited to the Custom Design, and that no trademarks or service marks in or to any Custom Design are being conveyed by Us. You hereby acknowledge that Company shall have no obligation or duty to perform trademark, service mark or copyright searches or inquiries, or the like, in order to validate the propriety or legality of the Custom Design. Accordingly, You are encouraged to perform Your own independent searches with regard to the Custom Design. Furthermore, You acknowledge that Company shall have no responsibility or obligation of any kind to assist You in seeking state or federal intellectual property protection (i.e., without limitation, trademark or copyright registration) for the Custom Design, nor shall Company be responsible for otherwise assisting You in any way in Your attempt to perfect Your rights in or to the Custom Design.
12.3. Material Supplied By You. Nothing in these Terms of Service shall be construed to convey rights or title to Company of materials that are supplied by, or created by You. You shall maintain all rights in Your trademarks, graphics and Your Content.
12.4. Company Supplied or Licensed Material. Many images and stock photography have been purchased or created by Company for use on with Our customer’s Services only. Company hereby grants You a non-exclusive right to use any such stock photography or images with the Services only, so long as You remain a customer in good standing. It is a violation of the Fine Print, as well as any relevant third-party licenses, to use any images or photos supplied by Company for any other purpose than with the Services. Furthermore, You hereby agree to remove and forever discontinue using any images or photos supplied by Company, upon the request of Company or the termination of Your use of the Services. The design, layout and “look and feel” of all Theme-Based Websites are Company Supplied Material and will be Work Product under this Agreement.
12.5. Program Functionality. Company has expended considerable time and effort creating its Services. Company will make Our functionality available to You only if You remain a customer in good standing and We exclusively reserve and retain all right, title and interest to the Services. Company may remove, deactivate or delete this functionality from Your website upon termination of Services or if You fail to remain a customer in good standing, without notice and without recourse.
12.6. Independent Contractor Relationship. Company is an independent contractor for the purposes of US Copyright Law.
12.7. Rights related to Content: The development, delivery and deployment the Services will be created in part with Your Content, Company Content, Third Party Materials, Developer Tools and Background Technology.
12.7.1. Content ownership and Licenses: You will maintain ownership rights to Your Content. Company may also use Company Content as well as Content, software, or other computer programs and material that is owned by an entity other than Company, and licensed by Us or generally available to the public (including You) under published licensing terms (“Third-Party Materials”). Company will maintain all of its ownership rights in Company Content and the rights associated with Third-Party Materials will remain with their respective holders. You hereby grant Company a perpetual, nonexclusive license to transmit, display, and otherwise use Your Content for the Term and to display screen shots of Your Services online, in marketing materials or in any manner desired by Us in Our sole discretion. Company hereby grants You a limited, personal, nonexclusive, nontransferable license to use the Company Content exclusively with the Services during the Term.
12.7.2. Background Technologies; Limited License. “Background Technology” means all programs, systems, data and materials, in whatever form that are: (1) included in, or necessary to, the Services; (2) owned solely by Company, licensed to Company with a right to sub-license, or licensed directly to You; and (3) software or programming tools developed generally to support the Services and/or service offerings and which (i) can be used in web sites and systems other than Your Services, and (ii) can be used independently of Your Content. Background Technology includes, but is not limited to: software tools of general application, not originally created by Company, its predecessors or affiliates, whether now owned by or licensed to Company to develop any part of the Services (without limitation, PHP: Hypertext Preprocessor, My SQL, Linux), computer code generated by or proprietary to Company, and commercial programs and services including, without limitation, Adobe Photoshop, Facebook.com, Gmail.com, and YouTube.com. Company hereby grants You a limited, revocable, non-exclusive, license to use the Background Technology owned or licensed to Us for use with Your Services during the Term. Except as expressly set forth herein, You agree that Company retains any and all rights it has in the Background Technology and You will not directly or indirectly (i) copy, adapt, alter or create derivative works from the Background Technology, (ii) sublicense, loan distribute or transfer in any way the Background Technology to any third-party, or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive any source code from or related to the Background Technology. In the event of expiration or termination of this Agreement for any reason, the any Background Technology licenses granted under this Agreement shall automatically and immediately cease and You shall destroy all copies the Background Technology or related documentation in Your possession.
13. Customer Data & Co-branding
13.1. Customer Data. Company agrees to not sell or intentionally release Your customer data, except to third-party vendors as may be necessary to provide Services, or as required by law or compelled by court order. You agree Company may aggregate customer data for its own purposes, however under no circumstances shall aggregation include non-public information that personally identifies You or Your customers. You also agree customer data may be used individually by each of Your customers, as may be necessary to participate in additional services provided by Company, its third-party vendors, or its business partners.
13.2. Co-Branding. You agree that Company may place a logo, trade name or link on any and all web pages served up by Company on Your website, which may be that of Company, or one of its third-party vendors or business partners. If You object, You may terminate Your Services with Company if Company is either unwilling or unable to satisfy such objection.
13.3. Unified Login. You understand and agree that any signup and/or login necessary for Services may feed, relate, participate, coordinate or share a larger customer database maintained by Company, its third-party vendors or its business partners.
14. Account Ownership. The Account owner is the individual or company listed in Our database as the Party responsible for paying for the Account and listed as the Account credit card holder, unless a different name has been authorized to make administrative Account decisions. The Account holder is responsible for (i.e. carries the liability associated with) Vouchers.
14.1. We are not liable for any Account disputes that may arise between various parties holding Your Account login information when the information has been distributed by the verified Account holder. We are not responsible for any changes made to the Account or any information that has been modified by You, or any parties authorized by You, to access the Services.
14.2. We are not responsible for errors or omissions to Your Account through Company. You understand and acknowledge that errors entered into Services will show up immediately on Your webpage(s).
15. National Listing Service
15.1. Company assumes You wish to maximize Your sales and prominence on the Internet. One way to do this, is to include Your website on national directories and search engines to increase Your exposure.
15.2. Opt-out for National Listing. There are currently no Fees for such listing. We will assume you want to participate in the National Listing Service, unless you opt-out of participation. You can change your opt-out status at any time, and as frequently as you wish.
15.3. All or Nothing. The entire purpose of the National Listing Service is to place your website on as many directories on the Internet as possible. Company cannot control which websites list Your website.
16. Complaints Against Our Customers
16.1. Generally speaking, unless We are required by law, We respond to third-party complaints or notices by submitting the information to You and asking You to respond appropriately.
16.2. We have no obligation to monitor the Content of Our customers, nor do We take responsibility for the Content or information contained on Your website(s), email(s) or other forms of communication. In limited situations, as outlined in these Terms of Service, We may review Content to validate compliance with the Fine Print.
16.3. We will use Our best judgment in determining the sufficiency and adequacy of subpoenas, and You agree We are not liable to You in the event We comply with a subpoena, which later turns out to be improper, not legally sufficient or inadequate.
17. Emergencies & Use Affecting Others
17.1. We reserve the right to take any proactive steps We deem necessary to maintain the security, connectivity, performance and services of Our customers, including but not limited to actions requiring Us to suspend the Services to You, shut down Our network, or review any Content distributed using the Services.
17.2. In rare instances, We may need to completely delete Services and the Content within them because of some significant failure, security breach or other emergency. In such cases, We do Our best to backup any data, but We cannot guarantee a full restore of Your data. You take full responsibility to manage the back up of your data.
18. Delegation of Duties. We reserve the right to delegate the rights or duties of these Terms of Service to a third-party, as well as transfer Your Account in the sale of assets or accounts to another organization. For example, some portion of Our duties may be provided using a Background
Technology. You agree that Your Agreement for Services may be transferred by Us to another without limitation, and Your duties and obligations under the Fine Print shall not diminish under any circumstances involving a change of control, forfeiture, exchange of assets or bankruptcy (hereinafter “Change of Control”) where performance for Services is the same, or substantially similar to, Services before the Change of Control occurred.
19.1. Defined. “Confidential Information” shall mean all information disclosed by either Party to the other Party in oral, written or machine-readable form, which has value because it is not generally known and the owner uses reasonable efforts to protect it and identify it in writing as confidential. Confidential Information also includes any information that has been disclosed by a third-party that is required to be treated as confidential. All Confidential Information shall be marked as such or designated as such in writing within thirty (30) days following disclosure to either Party. Confidential Information does not include any information which: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third-party without restriction on disclosure; (iv) is independently developed by the other Party; or (v) is disclosed by operation of law. All Confidential Information shall remain the exclusive property of the discloser or its licensors.
19.2. Preserving Confidentiality. Each Party hereby agrees that it shall, and cause its personnel to, not use any Confidential Information received from the other Party other than as expressly permitted under these Terms of Service or expressly authorized in writing by the other Party. Each Party shall use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither Party shall disclose the other Party’s Confidential Information to any person or entity other than its officers, employees and independent contractors who are directly involved in performing the Services and have a specific need to know such information in order to effect the intent of these Terms of Service and who have entered into written confidentiality agreements with that Party consistent with and no less restrictive than this section.
19.3. Injunctive Relief. You acknowledge that any breach of the provisions of Confidentiality may cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, You agree that Company will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief to enjoin any breach or violation of this section.
20. Indemnity, Warranty and Liability
20.1. Indemnity for Customer Transactions. You shall, at Your expense, defend and fully indemnify and hold Us harmless against any and all claims or harms resulting from Your use of Our Services, including but not limited to government actions alleging improper handling or illegal sales of Vouchers; Consumer allegations of fraud, misrepresentation, non-performance or non-delivery; and any other manner or means of harm, expense, penalty, tax, or punitive or compensatory measure resulting from the transactions between You and Your customers, regardless of (1) whether or not Company had knowledge of, or should have known, of the claim or harm; (2) whether Company had been notified of the claim or harm; (3) whether Company could have taken action to mitigate the claim or harm; or (4) whether Company contributed or factored in the claim or harm.
20.2. Indemnity for Infringing Work Product. Each Party shall, at its expense, defend and indemnify the other Party against a claim that any information, design, specification, instruction, software, data or other material furnished to the other Party that infringes a United States copyright or patent and will pay all losses, liabilities, damages, claims and related expenses (including attorney fees) either awarded by court or agreed to in an out-of-court settlement. Notwithstanding the above, Company shall have no liability hereunder for any claim of infringement based on (i) modifications, adaptations or changes to any Work Product not made by Company, (ii) the combination or use of any Work Product with any materials not furnished by Company, if such infringement would have been avoided by use of the Work Product alone, or (iii) the use or incorporation of any materials supplied to Company by You. In the event that any portion of the Work Product is held to, or Company believes is likely to be held to, infringe the intellectual property rights of a third-party, Company shall have the right at its sole option and expense to (i) substitute or modify the Work Product so that it is non-infringing, (ii) obtain for the You a license to continue using the Work Product, or (iii) require the return, or discontinued use, of the infringing Work Product. If such return materially affects Your ability to use the Services, then You may elect to terminate this Agreement. This section sets forth Your sole and exclusive remedy for intellectual property infringement by Company.
20.3. Indemnification Procedures. If either Party becomes aware of a claim that may require indemnification, the indemnified Party will promptly notify the other Party in writing of the claim and will allow the other Party to assume full control of the defense and settlement of the claim. The indemnified Party will provide the other Party with the assistance and information necessary to defend and settle the claim.
20.4. Warranty. Each Party represents and warrants to the other Party that it has the full power, right and authority to enter into and perform a relationship with the other Party. Company further represents and warrants that Services will be performed in a professional manner, consistent with generally accepted industry standards. For any breach of such warranty, Your exclusive remedy and Company’s entire liability shall be the re-performance of the Services. You must request such remedy from Company in writing not more than fifteen (15) business days following the completion of the Services. You warrant that You own or have the right to provide to Company any Confidential Information. EXCEPT AS SET FORTH IN THIS SECTION, COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED IN CONNECTION WITH THE SERVICES AND WORK PRODUCT, INCLUDING THE RESULTS AND PERFORMANCE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR LEGAL COMPLIANCE.
20.5. Limitation of Liability. THE MAXIMUM LIABILITY OF COMPANY TO YOU FOR DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL FEES PAID BY YOU TO COMPANY OVER THE ONE YEAR PRIOR TO ANY EVENT GIVING RISE TO SUCH DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE FOR (i) ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE OR THE SERVICES PROVIDED HEREUNDER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OTHERWISE FOR ANY SUCH CLAIM, OR (ii) FOR ANY DAMAGES OR COSTS ARISING FROM ANY THIRD PARTY’S ACTIONS, FAILURE TO ACT, OR DELAY IN PERFORMING ANY OBLIGATION WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SHALL NOT BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE.
21.1. Relationship between the Parties. Neither You nor Company is a legal representative, agent, or a partner of the other. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each Party will maintain appropriate worker’s compensation for its employees as well as general liability insurance.
21.2. Severability; Headings. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
21.3. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Albuquerque, New Mexico, USA. The arbitrator shall apply the laws of the State of New Mexico, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either Party file an action contrary to this provision, the other Party may recover attorney’s fees and costs up to $1,000.00.
21.4. Jurisdiction and Venue. The courts of Bernalillo County in the State of New Mexico, USA and the nearest U.S. District Court shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. The laws of the State of New Mexico, USA shall apply to all issues in dispute, excluding its rules regarding conflicts of law. This Agreement shall be construed in accordance with the laws of the State of New Mexico, excluding conflict of laws provisions, applicable to agreements made and fully performed therein.
21.5. Waiver. The failure by either Party to enforce, at any time, any of the provisions of this Agreement, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this Agreement or any part thereof, or the right of either Party thereafter to enforce each and every such provision.
21.6. Publicity. You agree that Company shall be allowed to use Your name on its list of customers, and disclose the same to its present and potential customers.
21.7. Changes. We reserve the right to change any of the terms of this Agreement by posting the revised Fine Print on Our Website or blog and/or by sending an email to notice mail addressed as defined herein. Unless the Services are terminated within ten (10) days after transmittal of such notice, any such changes or new Agreement will be effective immediately with respect to any continued or new use of the Services.
21.8. Notice. All notices, requests, consents and other communications required or permitted under these Terms of Service shall be in writing and shall be sent by email, or registered or certified mail, to You or Company at the addresses set forth herein. Any notice to You will be effective when sent to the person, email address and phone number in the “contact information” section of Your Account. We can change Our address by written notice to the You. Notice to Company must be delivered to:
Att: Legal Counsel
P.O. Box 35160
Albuquerque, NM 87176
21.9. Force Majeure. Either Party will be excused from any delay or failure in performance hereunder, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, disruptions of Internet service, and governmental requirements. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such Party will give notice of such force majeure event to the other Party as soon as reasonably possible.