These Terms of Service (the “Terms”) are entered into between the customer (“Client”) indicated in the order form for services (“Services”) and us, the entity identified in the Order Form as the provider of services (referred to as “we,” “us” or “our” and Client may also be referred to in these Terms as “you” or “your”). References to Client includes Client’s employees, contractors, and authorized users.
To use or receive the Services or upgrade to any Service, you must agree to these Terms by indicating your agreement via click-through acceptance or by executing an order for such Service or upgrade (whether online or in electronic copy, the “Order Form”). By agreeing to these Terms, you represent that you have the authority to bind the company you represent. These Terms will automatically renew for the period set forth in the Order Form as the “Renewal Term” and in accordance with Section 6 of these Terms.
The Terms consist of two parts: (1) these General Terms of Service, and (2) the terms specific to a certain Service included in the Service Specific Addendum attached hereto and incorporated by reference herein. In the event of a conflict between the Order Form, these Terms, or the Service Specific Addendum, the parties agree that solely to the extent of any such conflict, the order of precedence will be the Order Form, followed by the Service Specific Terms, followed by these Terms. Where we use the term “including” in these Terms, it means including without limitation.
Website Services. The Services, for the purpose of these Website Service Specific Terms, means the delivery of a website (“Website”) and related services, including (if applicable) website hosting and email hosting services, and in each case as described in the Order Form. Acceptance of the Website will be deemed to be the earlier of the date that we publish the Website the site or 45 days from the Effective Date. We may obtain website hosting services on your behalf and such hosting services are provided by Third Party Providers to us pursuant to their terms.
Americans with Disabilities Act. You acknowledge that you are required to comply with the Americans with Disabilities Act (“ADA”) regulations with respect to the accessibility of the Website. As an add-on to the Website Services, we offer a Service that enables websites to meet the Web Content Accessibility Guidelines (“WCAG”). The WCAG are guidelines that are published by the Web Accessibility Initiative of the World Wide Web Consortium. If you purchase this add-on Service, we will follow the WCAG standards. If you choose not to purchase such Service, you understand and agree that you may be subject to third party suits regarding the accessibility of your Website, your Website may be deemed noncompliant, and you expressly assume those risks. In addition, you understand that that the WCAG are guidelines developed by a third party and are not a regulation or a legal safe harbor. Following the WCAG does not guarantee compliance with the ADA. Therefore, we expressly disclaim any liability arising from or related to your Website’s compliance with the ADA.
Data. In addition to the definition of data in the Terms, the following definitions include: (a) Client Data includes information you send or receive from the email hosting services (if included); and (b) Client Content includes your logo, images, pictures, advertisements, and text (to the extent the foregoing do not constitute our templates).
Consumer Data. You represent and warrant that you will collect Consumer Data in accordance with all applicable laws, including the Fair Credit Reporting Act, the rules and regulations promulgated by the Federal Trade Commission on unfair or deceptive practices, the rules and regulations promulgated by the Consumer Financial Protection Bureau including Truth in Advertising rules and Regulation Z, and any other applicable consumer data protection of financial protection laws. You are solely responsible for ensuring that the Consumer Data you collect is collected, processed, stored, used, and shared in accordance with applicable law. You are solely responsible for ensuring the integrity and security of Consumer Data.
Ownership; Templates. We create or license the Website template, including all images, fonts, graphics, or other creative content, that we provide you and these materials are included in the definition of Intellectual Property. We grant you the limited license to publish, display and access and use Intellectual Property during the Term. You are prohibited from copying, publishing, displaying or otherwise exploiting Intellectual Property (including sharing such materials to a competitor of ours or directing a competitor to use such materials on your behalf). In addition, we may offer you a template form to collect Consumer Data or template policies, including template disclosures, consents, or policies. We do not and cannot provide legal advice. We do not review your practices or policies and do not represent, warrant, or guarantee that the use of our templates is legally sufficient or ensures legal compliance. We are under no obligation to, and do not, monitor the consumer credit or data privacy laws that may apply to your business. You are responsible for ensuring that any use of the template form (including any consent) is accurate and that it meets and complies with all applicable legal requirements.
Restrictions. In addition to the restrictions in the Terms, you acknowledge and agree that you may not use our servers as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities that threaten the stability of our network or damage the systems of, or cause a disruption of Internet services. Use of your website as an anonymous gateway is prohibited. You are solely responsible for maintaining an independent backup copy of your Website and Client Content. You are prohibited from using the Services to disseminate or transmit unsolicited messages, unsolicited commercial email, or unreasonably large volumes of email.
Marketing Services. Marketing Services may include any one or all of the following: search engine optimization, search engine marketing, marketing automation, or other marketing services as described in the Order Form (“Marketing Services”). The Services may also include “Listing Services” which mean the listing of inventory, parts, or accessories on various third-party websites (such as E-Bay, Craigslist, or other ecommerce sites). As part of the Marketing Services, we may create or provide you with SEO strategies (including specific words) and creative materials that we develop or create as a result of our expertise. Any SEO strategy, words, or other creative material that we create or develop are our Intellectual Property and we provide you the limited right to use our Intellectual Property during the Term and solely in connection with our provision of, and your receipt of, the Marketing Services. Following the termination or expiration of the Marketing Services, you will remove all Intellectual Property that we provided to you from your websites or social media sites.
Fees; Billing; Budgets; Credits. The Marketing Services fees include “Marketing Spend” and “Management Fees.” Management Fees are the recurring monthly fees that are fixed and committed spend during the Term. Management Fees are not cancelable or refundable. Marketing Spend is the fee for marketing activities for advertising placement the applicable third-party platform (e.g. Google, Facebook) based on a monthly budget which you set. The Marketing Spend also includes our margin of up to 30%. Prior to our purchasing any Marketing Spend from a third-party, you may increase or decrease your budget at any time. If your desired results require additional spend, or we incur an overage in excess of the Budgeted amount, we will notify you that the Budget needs to be increased and, you will pay such additional amounts promptly. If we do not spend Budget during the Term, we will credit such amount to your next invoice unless the credit amount is de minimis (as determined by us in our sole discretion) and in which case we will not credit any amounts. In no event will we refund any amounts to you.
Pausing Your Marketing Campaigns. At any time during the Term, so long as we have not made purchases on your behalf, you may suspend any Marketing Spend temporarily. You understand that suspending the Marketing Spend does not suspend your obligation to pay the Management Fees and we will continue to invoice and you will pay the Management Fees during the Term notwithstanding any suspension of Marketing Spend.
Client Obligations. In order for us to perform the Marketing Services, you must (a) provide us with access to applicable accounts (like Google Analytics or Facebook); (b) install and maintain a pixel or script to allow us to track traffic; and (c) assist us with the development of keywords.
Reporting. We will provide you with reporting regarding the activities performed and the results of such activities. You understand that the performance of the Marketing Services may take time to see results or may change or fluctuate over time due to changes in search engine algorithms, site rankings, competition for key words, policies of the search engine platform or third party platform, changes in indexed directories, or other changes or factors. Therefore, we do not guarantee that the Marketing Services will achieve any specific result or any result within a specific timeframe or campaign. If you change your website, the changes may impact the Marketing Services.
eCatalog Services. For purposes of these Service Specific Terms, the “eCatalog Services” mean the parts, inventory, garment or accessories data which is made available in an online list or through a mobile application. eCatalog Services provide data from third-party manufactures consisting of, where applicable, notes, service bulletins, specifications, diagrams, inventory status, specifications. The eCatalog Services may be accessed by your employees, contractors or agents or it may be made available to your website visitors.
Data Enhancement Services. For purposes of these Service Specific Terms, the “Data Enhancement Services” means the combination of data that is provided to you from a third-party and information from other sources. For purposes of the Data Enhancement Services, “Client Data” means any data that you provide to us for inclusion in the Services (excluding data owned by a third-party) and “Our Data” includes the results of the Data Enhancement Services, subject to any rights of the third-party or third-party manufacturer.
License Restrictions. With respect to the eCatalog Services and the Data Enhancement Services, where we receive data from a third-party manufacturer, your right to use the data we provide is limited by the license terms that we agree to with the third-party manufacturer. Subject to the license limitations in our agreement with the third-party licensor, we hereby grant you the limited, revocable, non-sublicensable, non-transferable right to use the eCatalog or Data Enhancement Services data solely for the purpose of receiving the applicable Services during the Term. We may restrict or revoke your right to use such data or modify the data at any time with or without notice. We are not responsible for the accuracy or completeness of the third-party manufacture’s data, including any instructions or specifications.
Ownership of Data. For the purposes of the eCatalog Services or the Data Enhancement Services, any enhancements or modifications to the manufacture data (including the layout, look and feel or organization) is our Intellectual Property.
Client Side Software. As part of the eCatalog Services or the Data Enhancement Services, we may provide you with software that is installed on your systems or devices. The client-side software is our Intellectual Property. We offer the client-side software “as is” and with all faults. Your sole remedy for any error or issue with respect to the client-side software is the repair or replacement of the client side software.