ANY QUESTIONS CONCERNING THE SERVICE AND/OR THIS AGREEMENT SHOULD BE REFERRED TO THE FOLLOWING: FeedPerfect, c/o Solid Cactus Web.com, Inc., Solid Cactus Technology Center, 106 South Lehigh Street, Shavertown, PA 18708.
1. METHOD OF ACCEPTANCE. Licensee agrees that by clicking the "I Accept" button below or otherwise utilizing the Service, Licensee is accepting the following terms and conditions for use of the Service. Licensee further agrees that if they do not agree with any of the following terms and conditions, they shall promptly exit the Service and not utilize the Service whatsoever.
2. MEMBER ACCOUNT, PASSWORD, AND SECURITY. Licensee must provide Solid Cactus with current, complete and accurate information as required by the Service, including e-mail address for use with the Service. Licensee agrees to provide its accurate name, mailing address, telephone and other contact information in Licensee's profile and to update such contact details as they may change. Licensee is entirely responsible for any and all activities that occur under Licensee's account. Licensee agrees to notify Solid Cactus immediately of any unauthorized use of Licensee's account or any other breach of security.
A. The description for the Service can be found at www.feedperfect.com (the "Service Website"). Subject to Licensee's compliance with the Agreement and these Terms, Solid Cactus will provide the Service to Licensee, subject to the then current terms, conditions and limitations applicable to the Services set forth herein and on the Service Website. All fees collected under this Agreement are fully earned when due and nonrefundable when paid. All fees due under this Agreement must be paid in United States dollars via credit card or other payment method acceptable to Solid Cactus.
B. Solid Cactus may make modifications, improvements and/or changes to the Service at any time. A reasonable effort will be made to keep the Service available 24 hours a day, 7 days a week, but Solid Cactus makes no guarantee of the Service's availability at any certain times or for any certain amount of time. Solid Cactus does not warrant or represent that the use or the results of the use of the Service or the materials made available as part of the Service will be correct, accurate, timely, or otherwise reliable. Solid Cactus does not warrant that the functions contained in the Service will meet Licensee's requirements, that the operation of the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service or the server that makes it available, are free of viruses or other harmful components. The Service may be subject to interruptions, loss of data, deletion of data and conditions that prevent the proper operation of the Service resulting from conditions of events outside the reasonable control of Solid Cactus and for which Solid Cactus will bear no responsibility.
C. Licensee acknowledges that Solid Cactus does not guarantee, imply, or predict any type of profit or response from the Service. Licensee irrevocably covenants, promises and agrees to indemnify Solid Cactus and its assigns and to hold them harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature that they may sustain or to which they may become subject arising out of or relating in any way to the use of the Service, including, without limitation, in each case attorneys' fees, costs and expenses actually incurred in defending against any such claims or enforcing the prerogatives of Solid Cactus under this Agreement.
D. All aspects of the Service, such as title, ownership rights, intellectual property rights, and any accompanying documentation are owned by Solid Cactus Web.com, Inc. ("Solid Cactus") and are protected by United States Copyright and Trademark laws. This License is not a sale of any aspects of the Service, any Software, content, code or any of the relevant documentation. Furthermore, Licensee will not acquire any rights to Solid Cactus' goodwill, trademark, copyright or other property of Solid Cactus.
4. LICENSE RESTRICTIONS.
A. Solid Cactus hereby grants, and Licensee hereby accepts, a non-transferable, non-exclusive, non-sublicensable worldwide license, during the Term, to use the Service provided and/or made available by Solid Cactus to Licensee. Licensee may not distribute, resell or otherwise provide the Service to any other person or entity. Licensee further acknowledges and agrees that the Service and any documentation or other information that Licensee is provided in connection therewith constitutes or contains valuable intellectual property and proprietary and confidential information of Solid Cactus (collectively, "Proprietary Property"), and that Solid Cactus is providing access and use of the Proprietary Property under a duty of Confidentiality. Licensee agrees not to (i) use or allow others to use the Proprietary Property in any manner not authorized under this Agreement, (ii) disclose the Proprietary Property except as authorized under this Agreement, (iii) reverse engineer, decompile, disassemble or attempt to obtain the source code for any Proprietary Property, or (iv) use the Proprietary Property to create any product, service or system that competes with the Service, except as expressly provided for in this Agreement. Licensee further agrees to use the Service only for its own internal purposes.
B. Licensee does not have the right to transfer this license to another party without the specific written permission of Solid Cactus. Licensee acknowledges that the Service and all related programs, features and/or applications provided by Solid Cactus to Licensee are NOT to be considered "works made for hire" under the 1976 Copyright Act.
C. Licensee acknowledges and agrees that Solid Cactus will retain all right, title and interest in and to any materials provided to Licensee by Solid Cactus, and all intellectual property relating to any of the foregoing, including but not limited to, copyrights, patents, and trademarks.
5. ACCEPTABLE USE
Licensee may use the Service only in accordance with the Agreement, these Terms, applicable laws in the United States and the applicable laws of any other jurisdiction. Licensee agrees not to use the Services in any manner that violates the Solid Cactus Acceptable Use Policy as provided to Licensee or as otherwise posted on the Solid Cactus. Solid Cactus may from time to time change this policy in its sole discretion by either delivering the modified policy to the individual Licensees or posting the modified policy on the Solid Cactus website. In addition, Licensee agrees that it will not use the Service to:
A. Engage in any illegal or tortuous activity;
B. Violate the patent, copyright, trademark, trade secret or other intellectual property rights of any third party;
C. Sell or distribute illegal adult oriented content that features nudity, sexual acts or adult-themed material;
D. Use verbal, physical, written or other abuse (including threats of abuse or retribution) of any Web.com customer, employee, member, or officer will result in immediate account termination; or
E. Publish or distribute in any manner any content that is harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable to Solid Cactus in its sole discretion.
6. FEES AND PAYMENTS. Licensee shall make payments to Solid Cactus for the use of the Service pursuant to the Fee Schedule (the "Fee Schedule") which is available on the Service Website and is hereby incorporated by reference. Solid Cactus may change the Fee Schedule from time to time. Such changes to the Fee Schedule are effective after Solid Cactus provide Licensee with at least thirty (30) days notice of the changes by posting the changes on the web site. Unless otherwise stated, all fees are quoted in U.S. Dollars. Licensee is responsible for paying all fees associated with using the Service.
Licensee shall to provide valid credit card information upon the creation of a new account for the use of Service. Licensee agrees to update this credit card information, as needed, and to allow the use of said credit card for the payment of fees for use of the Service. If Licensee provides Solid Cactus with a credit card that expires during the term of this Agreement, Solid Cactus reserves the right to charge any renewal card issued to Licensee as a replacement. In the event that Licensee fails to remit adequate payment for the Service at any time, Solid Cactus will immediately have the right to terminate Licensee's use of the Service and cease Licensee's access to the Service. Solid Cactus reserves the right to deactivate accounts and/or access to the Service for failure to pay or refused credit cards. Any outstanding balance becomes immediately due and payable upon termination of this agreement for any reason and any collection expenses (including attorneys' fees) incurred by Solid Cactus will be included in the amount owed. Unless Licensee questions the accuracy of any billing via written notification within fifteen (15) days following receipt of said billing, such computation shall be deemed to be accurate and complete for all purposes. Licensee permanently and irrevocably waives any and all right to enact a ‘chargeback' (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against these payments for any reason whatsoever against Solid Cactus.
7. TERM AND TERMINATION. This License is effective until terminated by either party. Solid Cactus may terminate Licensee's account at any time and for any reason. This Agreement will terminate automatically if Licensee fails to comply with this Agreement in any manner. Licensee may terminate this License at any time by canceling their Service account. If Licensee terminates their account by canceling account they will be responsible for all final payments. Licensee will be obligated to continue this Agreement for the term selected during the registration process. Solid Cactus reserves the right to terminate this Agreement and to deactivate or deny viewing access to Licensee's account immediately for Licensee's failure to pay for Service rendered pursuant to this Agreement.
Any outstanding balance for services rendered through the date of termination or any other payment obligations during the remainder of the Term of this Agreement unpaid at termination will be immediately due and payable upon termination of this Agreement. Upon termination, Licensee is to destroy all documentation relating to the Service or return said documentation to Solid Cactus.
8. LICENSEE REPRESENTATIONS AND WARRANTIES.
Licensee acknowledges, warrants, and represents as follows:
A. To Licensee's knowledge, there is no action, proceeding, or investigation pending or threatened which questions, directly or indirectly, the validity or enforceability of the Agreement.
B. Neither the execution of the Agreement nor the consummation by Licensee of the transactions contemplated by the Agreement will (i) conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default, or result in a termination of, any agreement or instrument to which the Licensee is a party, (ii) violate any restriction to which Licensee is subject, or (iii) constitute a violation of any Applicable Laws.
C. Licensee has taken all actions required by Applicable Law, and have obtained all consents which are necessary to authorize or enable them to execute the Agreement and to consummate the transactions contemplated in the Agreement.
D. Licensee is to obey all Copyright and other applicable laws. Solid Cactus will not be responsible if Licensee provides or uses another party's protected material in violation of Copyright or other applicable laws.
A. When Licensee registers with the Service, the Service requires Licensees to provide contact information (such as name and e-mail address) and financial information (such as credit card numbers). Personal and financial information that is collected is used to check the Licensee's qualifications for registration and to bill the Licensee for use of the Service. Solid Cactus may use this information to (i) check Licensee's qualifications for registration, (ii) bill Licensee for use of the Service, (iii) contact Licensee when necessary, (iv) send Licensee information about the Service, and (v) send Licensee promotional materials.
B. During Licensee's use of the Service, Solid Cactus collects statistical information related to Licensee's use of the Service. Solid Cactus generally uses this statistical information as necessary to: (i) provide the Service; (ii) improve the Service; (iii) troubleshoot any Service problems; and (iv) market the Service.
C. Licensees' information is protected to a certain degree by usernames and passwords, and as such Licensees are not to disclose these to unauthorized persons. To further ensure this privacy, the Service is protected by industry standard security technology, such as firewalls and security analyzers using SSL encryption to protect transmission of data.
D. Solid Cactus will not rent, sell or otherwise disclose any personal information about Licensee to any third parties unless it is expressly authorized by the Licensee or Solid Cactus has a good faith belief that such action is necessary to: (i) conform to legal requirements or comply with legal process; (ii) protect and defend the rights or property of Solid Cactus; (iii) enforce this Policy; (iv) improve the Service; or (v) troubleshoot any Service problems.
E. Solid Cactus will not rent, sell or otherwise disclose the individual statistical information compiled with regards to a Licensee's use of the Service to any third parties unless it is expressly authorized by the Licensee or Solid Cactus has a good faith belief that such action is necessary to: (i) conform to legal requirements or comply with legal process; (ii) protect and defend the rights or property of Solid Cactus; (iii) enforce this Policy; (iv) improve the Service; or (v) troubleshoot any Service problems.
F. Solid Cactus may, at its discretion, disclose the statistical information compiled with regards to a Licensee's use of the Service to third parties provided that such information is disclosed in a blind and/or aggregate form, and in no event will Solid Cactus disclose statistics of an individual Licensee without Licensee's express written permission. Solid Cactus may also provide traffic information in aggregate form (e.g. Internet browser trends, operating system trends) to third parties; however, Solid Cactus will not disclose statistics of an individual Licensee without Licensee's express written permission.
10. INDEMNIFICATION. Licensee hereby agrees to indemnify, defend, and hold harmless Solid Cactus against, and agree to pay and hold harmless Solid Cactus for all liabilities, obligations, losses, damages, penalties, claims, actions, suits, judgments, settlements, out-of-pocket costs, expenses and disbursements (including reasonable costs of investigation, and reasonable attorneys, accountants and expert witness fees), of whatsoever kind and nature that are imposed on or incurred by Solid Cactus as a consequence of or in connection with (i) any breach by Licensee of these Terms, (ii) any failure by Licensee to perform in accordance with these Terms, or (iii) any use of the Service by Licensee.
Solid Cactus agrees to (i) notify Licensee in writing promptly after the Solid Cactus becomes aware of such claim, (ii) give Licensee sole control of the settlement, compromise, negotiation, and defense of any such action (provided that Licensee may not agree to any settlement that involves injunctive or equitable relief affecting the Solid Cactus or admission of liability by the Solid Cactus without obtaining the Solid Cactus's prior written consent), and (iii) cooperate reasonably and in good faith in the defense of any such legal action. In connection with any such third party claim, Solid Cactus may, at its election and expense, have the right to participate in the defense of such claim. Additionally, Licensee agrees to give prompt written notice to Solid Cactus upon the receipt of notice of any claim by a third party against Licensee which might give rise to a claim against Solid Cactus stating the nature and the basis of such claim and, if ascertainable, the amount thereof.
11. EXCLUSIONS AND LIMITATIONS OF LIABILITY
A. THE SERVICE IS HEREBY PROVIDED TO LICENSEE ON AN "AS IS" BASIS. NO REPRESENTATION OR WARRANTY MADE UNDER THIS AGREEMENT APPLIES TO THE EFFECT OF ANY CONDITION OUTSIDE THE REASONABLE CONTROL OF SOLID CACTUS, INCLUDING BUT NOT LIMITED TO, WITHOUT LIMITATION, ANY (I) FAILURE IN TELECOMMUNICATIONS, (II) FAILURE BY LICENSEE TO COMPLY WITH THIS AGREEMENT, OR (III) CONDITION IN, OR COMBINATION OF ANY SERVICE, SOFTWARE, HARDWARE, SYSTEM, EQUIPMENT, PROCESS, METHOD, DATA OR INFORMATION USED OR PROVIDED BY SOLID CACTUS OR ANY THIRD PARTY.
B. THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SOLID CACTUS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. SOLID CACTUS DOES NOT WARRANT THAT THE SERVICE WILL MEET LICENSEE'S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATIONS OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.
C. SOLID CACTUS WILL NOT BE LIABLE TO LICENSEE OR ANY THIRD-PARTY CLAIMANT FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SOLID CACTUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THESE TERMS, AND ABSENT SUCH LIMITATIONS, SOLID CACTUS WOULD NOT PROVIDE THE SERVICE TO LICENSEE.
12. EXCLUSIVE REMEDY. If the above limitations are excluded or invalidated for any reason, Solid Cactus' cumulative liability to Licensee or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the License fees paid by Licensee to Solid Cactus for use of the Service during the three (3) month period before the date of the event giving rise to the liability.
13. MODIFICATION. Solid Cactus reserves the right to change these Terms at any time and to notify Licensee by posting an updated version of the terms and conditions on the Solid Cactus website. Licensee is responsible for regularly reviewing the terms and conditions related to the Services. Continued use of the Services after any such changes shall constitute Licensee's consent to such changes. Otherwise, these Terms may not be amended except by an instrument signed in writing on behalf of each of the parties hereto. Any purported oral modification or amendment of these Terms in derogation of the foregoing shall be without any effect. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
Solid Cactus may give notice to Licensee of any matter related to Licensee's use of the Services and these Terms (a) orally, by calling Licensee's representative or by leaving a voicemail for Licensee's representative at the telephone number in Licensee's profile, (b) by email to the email address provided by Licensee in Licensee's profile, or (c) by regular mail to Licensee's mailing address in Licensee's profile. Licensee may give notice to Solid Cactus by certified mail to the following address:
Solid Cactus Web.com, Inc.
106 South Lehigh Street
Shavertown, PA 18708
Attn: Legal Department
15. HEADINGS AND INTERPRETATION. The Section headings of the Agreement are intended for reference and may not by themselves determine the construction or interpretation of the Agreement. They are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of the Agreement. In all references herein to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender and number as the text of the Agreement may require. Wherever used herein, the singular shall include the plural, the plural shall include the singular, and pronouns shall be read as masculine, feminine or neutral as the context requires.
16. WAIVER AND ENFORCEABILITY. The waiver of any breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of the same or other provision of this Agreement. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
17. ENTIRE AGREEMENT. Except as otherwise stipulated herein, this Agreement represents the entire understanding among the parties with respect to the subject matter of this Agreement, and as such this Agreement supersedes any and all prior understandings, agreements, or obligations.
18. ASSIGNMENT. Licensee shall not have the right to assign their respective rights and obligations arising under the Agreement without the written consent of Solid Cactus. Any attempt by Licensee to assign their respective rights and obligations arising under the Agreement, without the written consent of Solid Cactus shall be null and void.
19. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Florida, without giving effect to principles of conflict of laws. Licensee agrees that any judicial proceeding for the breach of or enforcement at law or equity of this Agreement or any provision hereof shall be instituted only in a federal or state court of competent jurisdiction in the city of Jacksonville and the State of Florida, and Licensee consents to the jurisdiction of such court, and waives the right to challenge the jurisdiction of such court on grounds of lack of personal jurisdiction or to seek a change of venue.
20. PROHIBITED TRANSACTIONS. Licensee warrants that Licensee is not, nor is Licensee acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control ("OFAC"). In addition, Licensee is not, nor is Licensee acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time. In addition to all other rights and remedies available to Company under this Agreement, and at law and in equity, Licensee's breach of this section shall result in immediate termination of the Agreement and forfeiture of any and all Services or amounts previously provided, paid and/or owed to Licensee under this Agreement.
21. MISCELLANEOUS. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Services or these Terms.
22. LICENSEE ACKNOWLEDGEMENT. LICENSEE ACKNOWLEDGES THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND SOLID CACTUS AND THAT IT SUPERSEDES ANY PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN LICENSEE AND SOLID CACTUS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
Version 2.0 - 10/23/2009