ITC2B – Tuxu Digital Marketing
WEBSITE SOFTWARE AS A SERVICE
TERMS OF SERVICE
These TERMS OF SERVICE constitute a legal binding contractual agreement (the “Agreement”) between ITC2B Tuxu Digital Marketing., a California company (the “Company”), and you. By opening an account and using the Company’s service (the “Service”), you agree to be bound by the terms of this Agreement.
A. General Provisions
1. You represent and warrant that you are 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use the Service.
2. You represent and warrant that, when completing the signup process for the Service, you will have provided your full legal name, current address, a valid email address, and any other information needed in order to complete the signup process.
3. You acknowledge and agree that the Company will use the email address supplied by you as the primary method for communicating with you.
4. You acknowledge and agree that you alone are responsible for keeping your password secure. The Company shall not be liable to you under any circumstances for any loss or damage from your failure to maintain the security of your account and password.
5. You acknowledge and agree that you alone are responsible for all activity on and content uploaded to your account with the Company (“Website Content”). With respect to content, this includes, without limitation, data, graphics, photos and links.
6. Any breach or violation by you of any term of this Agreement as determined in the sole discretion of the Company will result in an immediate termination of your account and your ability to utilize the Service.
7. The company may provide free maintenance services according to the number of hours per month agreed on the work order. These hours are not accumulative and expire at the end of the month. The company has the right to stop providing this service at any time.
8. Technical support is only provided to paying Account Owners (as defined in Section B1 below).
9. You acknowledge and agree that your Website Content (excluding credit card information) may be transferred unencrypted and involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
10. Questions about this Agreement should be sent to email@example.com.
B. Activating Your Account
1.The person signing the Work Order will be the contracting party (“Account Owner”) for the purposes of this Agreement. The Account Owner will also be the person who is authorized to use any corresponding account the Company may provide to the
Account Owner in connection with the Service.
2. If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If that is the case, then you represent and warrant that you have the requisite legal authority to bind your employer to this Agreement.
3. Once you have completed the sign-up process for the Service, you should fill out the Credit/Debit Card Payment Form in order to provide a credit card number where to make the charges. At The Company discretion, The Company would use your email address to establish a PayPal Express Checkout account on your behalf.
4. We may purchase a domain name through the Company. Domain registration will be preset to automatically renew each year so long as your Company account remains active. You acknowledge and agree that The Company is the owner of the purchased domain and would be transferred to you, for a fee, at the end of the service if your account has no pending payments and is in good shape.
C. Prohibitions in General
1. You may neither use the Service for any illegal or unauthorized purpose nor in violation of any laws in your federal, provincial, state and local jurisdiction (including, without limitation, copyright laws).
2. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by the Company, which the Company may grant or deny in its sole and absolute discretion.
3. You are prohibited from transmitting any worms or viruses or any code of a destructive nature.
4. You shall not purchase search engine or other pay per click keywords (e.g., Google AdWords) or domain names that use the Company name or Company trademarks and/or variations and misspellings thereof.
D. Rights of the Company
1. The Company reserves the right to modify or terminate the Service for any reason (including, without limitation, if the Company suspects you of engaging in fraudulent activities) and without notice at any time.
2. The Company reserves the right to refuse service to anyone for any reason at any time.
3. The Company reserves the right, but is under no obligation, to remove Website Content and Accounts containing content that the Company determines in our sole and absolute discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any person’s intellectual property rights or this Agreement.
4. Verbal or written abuse of any kind (including threats of abuse or retribution) of any Company customer or member or any employee, consultant, independent contractor, director or shareholder of the Company or any of its affiliates will result in immediate account termination.
5. The Company does not pre-screen the website Content. The Company has the sole and absolute discretion to refuse or remove any website Content that is available via the Service.
6. The Company has the right to provide its services to your competitors. It makes no promise of exclusivity in any particular market segment. You further acknowledge and agree that Company employees and contractors may also be Company customers or members and that they may compete with you, although they may not use your confidential information in doing so.
7. In the event of a dispute arises with respect to the ownership of any account, the Company shall have the right to request documentation from the disputing parties to determine or confirm account ownership.
Documentation may include, without limitation, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file and other information pertinent to the determination of account ownership.
8. The Company has the right to make the final determination, in its sole and absolute judgment, as to the identity of the rightful owner of any account and, if necessary, to transfer an account to the rightful owner. If the Company is unable to determine the rightful account owner, the Company reserves the right to temporarily disable the account in question until resolution has been determined between the disputing parties.
E. Limitations of Liability
1. YOUR USE OF THE SERVICE IS AT YOUR SOLE AND ABSOLUTE RISK. IT IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING (WITHOUT LIMITATION) THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING (WITHOUT LIMITATION) LOST PROFITS, LOST INCOME, GOODWILL IMPAIRMENT, LOST DATA AND/OR OTHER INTANGIBLE LOSSES, WHETHER OR NOT THE COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED, FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR THE USE OR THE INABILITY TO USE THE SERVICE.
2. You agree to indemnify and hold the Company, its affiliates and their respective owners, shareholders, officers, directors, agents, employees, consultants and independent contractors (collectively, the “Indemnitees”) harmless from any claims (groundless or otherwise), demands, suits, actions, proceedings at law or in equity, liabilities, losses, damages, payments, deficiencies, settlements, penalties, fines, costs and legal and other expenses (including reasonable fees and disbursements of counsel selected by the Company) asserted against any Indemnitee or incurred by any indemnitee by any third party, arising out of or in connection with your breach of this Agreement or the documents it incorporates by reference, or your violation
of any law or the rights of a third party.
3. The Company does not warrant that the Service will be uninterrupted, timely, secure or error-free.
4. The Company does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
5. The Company does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service, will meet your expectations, or that any errors in the Service will be corrected.
F. Intellectual Property and Customer Content
1. The Company does not claim any intellectual property rights over the material you provide to the Company through the Service, including Website Content. You retain ownership over all such material, including Website Content that you upload.
2. By uploading Website Content, you agree: (a) to allow other internet users to view your Website Content; (b) to allow the Company to display and store your Website Content; and (c) that the Company can, at any time, review all the Website Content submitted by you to through the Service.
3. You are solely responsible for ensuring that your Website Content fully complies with any applicable laws or regulations.
4. The Company will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any materials or information provided by you to the Company which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time the Company received it; (b) falls into the public domain after the Company received it through no fault of the Company; (c) the Company received from someone other than you without breach of the Company’s or their confidentiality obligations; or (d) the Company is required by law to disclose.
G. Payment of Fees
1. A valid credit card is required for payments. Exceptions would be made in case by case basis.
2. The Service will be billed in Quarterly (90 days) intervals. Up to 30days before your billing period is initiated, the Account Owner will be sent an invoice via the email provided. Account owners have ten (10) business days after receipt of an invoice to dispute all or part of that invoice. The Account Owner irrevocably waives its right to dispute that invoice at a later time if it fails to do so during such ten (10) business day period. The Service may be billed in 365-day intervals. Full upfront payment for the year is required.
3.. No refunds will be provided for the early termination of services by either the Company or you.
4. The Company does not provide refunds under any circumstances.
5. All fees are exclusive of all federal, provincial, state or other governmental sales, local, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”). Taxes are in addition to fees for the Service and will be billed to your credit card if required by applicable law. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable
legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such a certificate.
6. Depending on what period is agreed on the Work Order, the contract lasts for the period specified on the work order. Fees equal to the remaining months will apply for early termination.
1. The contract last for the period specified on the work order, after that you may cancel your account at any time, 1 month in advance, by emailing firstname.lastname@example.org and then following the specific instructions set forth in the Company’s response to you.
2. Once the cancellation is confirmed, all of your Website Content will be immediately deleted from the Service. Deletion of all data is final. Please ensure that cancellation is in your best interests before doing so.
3. The purchased domain name through the Company, will no longer be automatically renewed once you cancel. Thereafter, it will be your sole responsibility to handle all matters related to your domain with The Company.
4. If you cancel the Service in the middle of the month, you will receive one final invoice via email. Once that invoice has been paid you will not be charged again.
5. The Company reserves the right to modify or terminate the Service for any reason and without notice at any time.
I. Modifications to the Service and Prices
1. Prices for using the Service are subject to change upon 30 days notice from the Company. Such notice may be provided at any time by posting the changes to the Company’s web site (itc2b.com) or for direct communication.
2. The Company reserves the right at any time to time to modify or discontinue the Service (or any part thereof) with or without notice.
3. The Company shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
J. Optional Tools
1. The Company may provide you with access to third party tools over which the Company neither monitors nor has any control, input or responsibility.
2. You acknowledge and agree that the Company provides access to such tools on an “as is” basis and without any warranties, representations, or conditions of any kind whatsoever and without any endorsement. The Company shall have no liability whatsoever arising from or relating to your use of optional third party tools,
which you use at your own risk and discretion.
3. You are responsible for familiarizing yourself with and approving the terms on which, tools are provided by any third party provider.
4. You are strongly encouraged to seek specialist advice before using or relying on any tools.
K. Digital Millennium Copyright Act (“DMCA”) Notice and Takedown Procedure
1. The Company supports strongly the protection of intellectual property rights and asks you to do the same. The Company’s policy to respond to all notices of alleged copyright infringement.
2. If someone believes that you are infringing their intellectual property rights, they can send a Digital Millennium Copyright Act (“DMCA”) Notice to the Company’s designated agent using the Company’s form.
3. Upon receiving a DMCA Notice, the Company may remove or disable access to the material claimed to be infringing the copyright(s) of another.
4. Once provided with a notice of takedown, you can reply with a counter notification using the Company’s form if you object to the complaint.
5. The original complainant has fourteen (14) business days after the Company receives a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise the Company will restore the material.
6. For more information, see our DMCA Notice and Takedown Procedure.
1. This Agreement contains the entire agreement between you and the Company with respect to the subject matter hereof and supersedes all prior agreements, whether written or oral, with respect thereto (including,without limitation, any prior versions of the Terms of Service).
2. No provision of this Agreement may be waived unless the party waiving compliance evidences such waiver in a written instrument signed by such party. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
3. This Agreement shall be governed and construed in accordance with the laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law rules thereof.
4. All disputes, claims, counterclaims and controversies arising under this Agreement shall be arbitrated pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any arbitration proceeding shall be held in the City of Sacramento, California. The arbitrator shall have all powers of law and equity, which he or she can lawfully assume, necessary to resolve the issues in dispute including, without limitation, making awards of compensatory damages, and issuing both prohibitory and mandatory orders in the nature of injunctions and compelling the production of documents and witnesses for presentation at the arbitration hearings on the merits of the case. The decision of the arbitrator shall be in written form and state
the reasons upon which it is based. Any action or proceeding subsequent to any award rendered by the arbitrator including, but not limited to, any action to confirm, vacate, modify, challenge or enforce the arbitrator’s decision or award shall be filed in a court of competent jurisdiction in the same county where the arbitration of the dispute was conducted.
5. This Agreement is for the sole benefit of the parties hereto and no third party, either directly or indirectly, is an intended or unintended third party beneficiary hereunder.
6. The Company shall be held responsible nor be deemed to be in default under this Agreement for any delay in performance or failure in performance of any of its obligations hereunder if such delay or failure is the result of causes beyond its control. Such causes shall include, without limitation, acts of God, strikes, lockouts, riots,
insurrections, civil disturbances, sabotage, terrorist acts, embargoes, blockades, acts of war, acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), governmental regulations superimposed after the fact, power failures, internet service disruptions, fires, explosions, floods, accidents, epidemics, earthquakes, tornadoes, hurricanes, tropical storms, snow, rain or ice storms, or other natural or man-made disasters, and all occurrences similar to the foregoing.
7. The Company may assign this Agreement to any of its affiliates or successors. You may not assign this Agreement to any person without the prior written consent of the Company, which consent may be granted or denied in the Company’s sole and absolute discretion. Any purported assignment in violation of this Agreement shall be null and void and of no legal effect.
8. If any provisions of this Agreement for any reason shall be held to be illegal, invalid or unenforceable, such illegality shall not affect any other provision of this Agreement, this Agreement shall be amended so as to enforce the illegal, invalid or unenforceable provision to the maximum extent permitted by applicable law, and the parties shall cooperate in good faith to further modify this Agreement so as to preserve to the maximum extent possible the intended benefits to be received by the parties.
9. Sections E and L shall survive the expiration or termination of this Agreement.
10. The headings of the sections hereof are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning hereof.