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Terms of Service

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED”, SIGNING A NOVICIUS CONTRACT OR USING NOVICIUS SERVICES EACH CUSTOMER AGREES TO THESE TERMS OF SERVICE.

These Terms of Service constitute an agreement (this “Agreement”) by and between Novicius, a hosting and website (“Provider”) and each customer of Provider’s online hosting and website service (“Recipient”).

1. Definitions.

(a)    “Account”refers to the Service plans and features selected by Recipient through Provider’s customer portal at the time of enrollment and accepted by Provider, as such plans and features may change by mutual consent of the parties, as recorded by Provider through such portal.

(b)   “AUP”refers to Provider’s acceptable use policy, posted at http://novicius.com/aup.html, as such policy may change from time to time.

(c)    “Authorized Representative”refers to Novicius sales representatives.

(d)   “Data Policy”refers to Provider’s standard data deletion policy, posted at http://novicius.com, as such policy may change from time to time.

(e)    “Effective Date”refers to the date of commencement of the Service as listed in Recipient’s Account.

(f)    “Materials”refers to written, graphical, and software content provided by or through the Service, including, without limitation, source code, text, photographs, illustrations, animation, video, content management system, software and designs, whether provided by Provider, another customer of the Service, a Novicius subcontractor, or any other third party.

(g)   “Recipient Data”refers to data in electronic form input or collected through the Service by or from Recipient.

(h)   “Privacy Policy”refers to Provider’s privacy policy, posted at http://novicius.com/privacy-policy.html as such policy may change from time to time.

(i)     “Service”refers to Provider’s hosting and website service. The Service includes such features as are set forth on Provider’s website (www.novicius.com), as Provider may change such features from time to time, in its sole discretion.

(j)     “SLA”refers to Provider’s service level agreement, posted at http://novicius.com/sla.html, as such service level agreement may change from time to time.

CUSTOMER RESPONSIBILITIES

2.     Customer shall be responsible for the following (whereby failure to adhere to these responsibilities shall constitute a material breach of this Agreement):

(a)   Providing current and updated Customer information (including Customer's name, address, email address, postal address, phone and fax numbers, etc.) for Novicius's use in contacting Customer regarding the Services and otherwise as necessary in regards to the Services and checking those points of contact throughout the Term of this Agreement for notices and/or updates from Novicius;

(b)   Providing Novicius with all necessary information, data, text, music, sound, images, photographs, graphics, video, messages, tags and custom images (including, but not limited to, design, pamphlets, brochures, logos, and other images) and other materials ("Content") to be used in connection with a Customer website or online store ("Website") or otherwise for use in conjunction with the Services, other than that Content which Novicius expressly agrees to supply;

(c)    Acquiring any authorizations necessary to use intellectual property (including, but not limited to, copyrights and trademarks) or information of third parties;

(d)   Contacting Novicius for all changes, modifications, and enhancements to the Website and/or Services starting from the date of sale and otherwise remaining engaged in the related processes;

(e)   Providing Novicius with unrestricted access to the Website and/or related accounts as needed for Novicius to provide the Services hereunder;

(f)    Granting to Novicius and its subcontractors the necessary rights and licenses with respect to the Website, the Content and materials related thereto in order to carry out obligations under this Agreement;

(g)   Allowing Novicius to make a reasonable number of archival or back-up copies of the Website as deemed necessary by Novicius in providing the Services;

(h)   Ensuring that Customer maintains a current and complete backup of their Content at all times;

(i)     Obtaining Internet connectivity to access the Website, to send and receive e-mail, and to otherwise access and utilize the Internet;

(j)     Reviewing and adhering to any end-user facing policies and/or terms provided by Novicius for use on a Customer website (i.e. a Customer privacy policy), and further revising any such policy to accurately reflect Customer’s business practices.

(k)    Contacting Novicius with notice of Customer's decision to cancel or discontinue the Services. IF NO SUCH NOTIFICATION IS GIVEN TO NOVICIUS BY CUSTOMER, NOVICIUS WILL ASSUME CUSTOMER IS SATISFIED WITH AND ACCEPTS ALL SERVICES, AND NOVICIUS WILL BILL ANY RELATED SERVICE FEES DIRECTLY TO CUSTOMER'S TELEPHONE BILL, CREDIT CARD, AUTOMATED CLEARING HOUSE (ACH), ACCOUNT, OR OTHER PAYMENT METHOD PROVIDED OR OTHERWISE IDENTIFIED BY CUSTOMER.

(l)    Allowing Novicius to prominently display the hyperlink phrase ‘Powered by Novicius’ and/or such other expression(s) determined by Novicius that identify the customer Website as designed and hosted by Novicius on the customer website.

(m)    Allowing Novicius to register customer selected domain name (if available) under customer's name.

(n)    Allowing Novicius to manage and maintain customer selected domain name for the duration of the services provided by Novicius.

(o)    Allowing Novicius to create social media accounts in customer name, manage social media accounts, and maintain those accounts in order to fulfill the service requirements of a customer selected social media service plan.

Depending on the Services you elect to receive, you may also be responsible for establishing and maintaining a commercial relationship with a financial institution or money transmitter such as a credit card processor, bank or PayPal. The terms of any such relationship shall be between you and that entity and such terms may be more restrictive or place limits on your use of the services and as such you should contact those entities for more information regarding such terms where applicable.

3.       GENERAL RULES OF CONDUCT

(a)    You acknowledge and agree that:

(b)   Your use of this Site and the Services found at this Site, including any content you submit, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations.

(c)    You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.

(d)   You will not use this Site or the Services found at this Site in a manner (as determined by Novicius in its sole and absolute discretion) that: Is illegal, or promotes or encourages illegal activity;

(e)   Promotes, encourages or engages in child pornography or the exploitation of children;

(f)     Promotes, encourages or engages in terrorism, violence against people, animals, or property;

(g)    Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;

(h)   Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription; 

(i)      Infringes on the intellectual property rights of another User or any other person or entity;

(j)     Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;

(k)    Interferes with the operation of this Site or the Services found at this Site;

(l)      Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or

(m)    Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Novicius or Novicius’s Services.

(n)   You will not copy or distribute in any medium any part of this Site or the Services found at this Site, except where expressly authorized by Novicius.

(o)   You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.

(p)   You will not access Novicius Content (as defined below) or User Content through any technology or means other than through this Site itself, or as Novicius may designate.

(q)   You agree to back-up all of your User Content so that you can access and use it when needed. Novicius does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.

(r)     You will not use this Site or the Services found at this Site, including any of Novicius’s related technologies, software, source code, for any commercial use without Novicius’s express prior written consent.

(s)    You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.

(t)     You are aware that Novicius may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you do not have any reasonable expectation of privacy during those calls; indeed you hereby consent to allow Novicius, in its sole discretion, to record the entirety of such calls regardless of whether Novicius asks you on any particular call for consent to record such call.  You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted in evidence any legal proceeding in which Novicius is a party.

(u)   Novicius reserves the right to modify, change, or discontinue any aspect of this Site or the Services found at this Site, including without limitation prices and fees for the same, at any time.

4.       ACCOUNTS

(a)    Account. You represent and warrant to Novicius that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete.  If Novicius has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, Novicius reserves the right, in its sole and absolute discretion, to suspend or terminate your Account.  You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including without limitation your customer number/login, passwords, user names, Payment Method(s) (as defined below), and shopper PIN.  For security purposes, Novicius recommends that you change your password at least once every six (6) months for each Account you have with Novicius.  You must notify Novicius immediately of any breach of security or unauthorized use of your Account. Novicius will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss Novicius or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.

 

5.      Service & Payment.

(a)    Service. Provider will provide the Service to Recipient pursuant to its standard policies and procedures then in effect.

(b)   Payment. Recipient will pay Provider such monthly Service fees as are required in Recipient’s Account, due on the day before the start of the calendar month of Service. PAYMENT & FEES Customer shall pay Novicius for all Services ordered and/or provided. Depending on the method of sale, Novicius shall provide Customer with Services at the prices designated in the Order Process, subject to change in accordance with this Agreement. If Customer exceeds stated limits for any part of the Services or if Customer requires additional Services, additional fees will apply based on Novicius's posted rates, also subject to change in accordance with this Agreement. Unless otherwise stated, all fees are quoted in U.S. Dollars and exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and you will be responsible for payment of all such taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement.

(c)    Unless otherwise stipulated in the Order Process, payment for Services will be made via a charge to the Customer's credit card, charge card, PayPal or bank account (the "Account") upon ordering of the Services. By submitting an order for processing, Customer authorizes Novicius to charge the order to the Account or to otherwise immediately bill Customer for the Services. Customer acknowledges and agrees that all annual, monthly or other recurring fees referenced in the Agreement or otherwise related to the Services are to be recurring transactions billed on an ongoing basis until the Services are terminated in accordance with this Agreement. If Customer has provided billing information sufficient for automatic billing, Novicius will bill customer automatically in accordance with the applicable billing frequency. Customer is obligated to pay for the full amount of the Agreement, even if such full amount is scheduled to be paid in installments. If Customer elects to pay for the Services in installments, all installments must be received on or before the applicable due date.

(d)   Without limiting any of Novicius's rights hereunder, should any fee payment become delinquent, Novicius may suspend or cancel the Services; however charges will continue to accrue in accordance with the Term of this Agreement and price of Services. Novicius may bill an additional charge to reinstate a suspended Customer account. Client acknowledges and agrees that Novicius is not responsible whatsoever for any effect the suspension of Services might have on the Services or the results or effectiveness thereof. If Novicius provides any Service discount to Customer and Customer defaults on its payments or obligations as outlined herein, Novicius may rescind all discounts and require full payment for the Services. Novicius reserves the right to refer any amounts owed hereunder to a third party for collection in the event of ongoing default.

(e)    On any amounts not paid when due, Customer agrees to pay interest at the rate of 1.5% per month (18% per year) or, if such rate is in excess of the rate allowed by law, then Customer agrees to pay the highest rate allowed by law. In addition, Customer agrees to pay all costs of collection, including costs of litigation and reasonable attorneys' fees. Customer agrees to execute financing statements and other instruments at Novicius's request. A $20.00 (Twenty U.S. Dollars) collection fee will be charged for all dishonored checks. A $15.00 (Fifteen U.S. Dollars) fee will be assessed for the following reasons: (i) late payment, (ii) payment with insufficient funds, (iii) denied or invalid credit card number, (iv) reactivation of services terminated for nonpayment.

(f)    CUSTOMER UNDERSTANDS AND AGREES THAT ALL NOVICIUS FEES AND CHARGES ARE NONREFUNDABLE AND THAT NOVICIUS MAY CHANGE ANY FEE, RATE OR PLAN AT ANY TIME UPON NOTICE TO CUSTOMER IN ACCORDANCE WITH SECTION 5 (NOTICE) OF THIS AGREEMENT.

(g)   If Client pays for the Services by credit card or charge card, Client 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 Novicius.

6.      Service Level Agreement (SLA).

In the event of any “Service Failure,”as that term is defined in the SLA, Provider will issue Recipient such credits as are required by the SLA. Credits issued pursuant to the SLA apply to outstanding or future payments only and are forfeited upon termination of this Agreement. Provider is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement. Credits issued pursuant to the SLA are Recipient’s sole remedy for the Service Failure in question. The SLA is hereby incorporated into this Agreement.

7.      Materials, Software, & IP.

(a)    Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient’s use of the Service.

(b)   IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.

8.      Online Policies.

(a)    AUP. Recipient will to comply with the AUP. In the event of Recipient’s material breach of the AUP, including without limitation any copyright infringement, Provider may suspend or terminate Recipient’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that Provider take any action against Recipient or any other customer for violating the AUP, but Provider is free to take any such action it sees fit.

(b)   Privacy Policy. The Privacy Policy applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service or by Provider’s employees.

9.      Each Party’s Warranties.

(a)    Recipients Identity. Recipient warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.

(b)   Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

(c)    Disclaimers. Except for the express warranties specified in this section 9, THE SERVICE IS PROVIDED “AS IS”AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) Provider does not warrant that the Service will perform without error, immaterial interruption, and secure.

10.  Limitation of Liability.

(a)   YOU ACKNOWLEDGE AND AGREE THAT NOVICIUS WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY OTHER PARTY FOR ANY (i) TERMINATION, SUSPENSION, LOSS, OR MODIFICATION OF YOUR SERVICE, (ii) USE OF OR INABILITY TO USE THE SERVICE, (iii) INTERRUPTION OF BUSINESS, (iv) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR A SERVICE (INCLUDING, WITHOUT LIMITATION, TO WEBSITES ACCESSED BY THE DOMAIN NAME REGISTERED IN YOUR NAME), (v) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (vi) EVENTS BEYOND NOVICIUS'S AND ITS SUBCONTRACTORS' REASONABLE CONTROL, (vii) APPLICATION OF ANY APPLICABLE LAW, REGULATION OR NOVICIUS POLICY (INCLUDING, WITHOUT LIMITATION, ANY RELEVANT DISPUTE POLICY OR ANY OTHER ICANN OR SIMILAR GOVERNMENTAL OR SUCCESSOR ORGANIZATION ADOPTED POLICIES), (viii) DISBURSEMENT OR NON-DISBURSEMENT OF FUNDS BY PAYMENT PROCESSORS; (ix) TRANSACTIONS CONDUCTED ON A USER WEBSITE, INCLUDING FRAUDULENT TRANSACTIONS; (x) LOSS INCURRED IN CONNECTION WITH YOUR SERVICES, INCLUDING IN CONNECTION WITH E-COMMERCE TRANSACTIONS; (xi) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (xii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING YOUR SERVICES, OR (xiii) ANY OTHER MATTER RELATING TO YOUR USE OF THE SERVICES.

(b)   ADDITIONALLY, NOVICIUS WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, GOODWILL, DATA, THE COST OF REPLACEMENT GOODS OR SERVICES, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES), WHETHER FORSEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF NOVICIUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS OR OMISSIONS BY NOVICIUS, INCLUDING WITHOUT LIMITATION, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR TECHNICAL OPERATIONS.

(c)    IN NO EVENT SHALL NOVICIUS'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES DURING THE TWO(2) MONTH IMMEDIATELY PRECEDING THE ARISING OF THE RELEVANT CLAIM OR ACTION, BUT IN NO EVENT SHALL IT BE GREATER THAN SIX HUNDRED DOLLARS ($600.00), AND YOU ACKNOWLEDGE AND AGREE THAT THIS WILL BE YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT AND OTHERWISE IN RELATION TO YOUR USE OF THE SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

(d)   YOU ALSO ACKNOWLEDGE AND AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION INITIALLY AROSE OR SUCH CLAIM OR CAUSE OF ACTION SHALL BE PERMANTELY BARRED.

(e)   CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS CONTAINED IN THIS SECTION ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, NOVICIUS WOULD NOT ENTER INTO THIS AGREEMENT OR PROVIDE SERVICES HEREUNDER. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.

(f)    NOVICIUS SHALL ALSO HAVE NO LIABILITY FOR ANY CONTENT PROVIDED BY CUSTOMER THAT INFRINGES OR VIOLATES ANY RIGHTS OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, RIGHTS OF PUBLICITY, RIGHTS OF PRIVACY, PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS, AND/OR LICENSES. NOVICIUS DISCLAIMS ANY RESPONSIBILITY FOR ANY CONTENT, GOODS, AND SERVICES SOLD BY CUSTOMER OR OTHERWISE AVAILABLE THROUGH THE WEBSITE, OR THE QUALITY OR ACCURACY OF ANY INFORMATION ON THE WEBSITE. NOVICIUS WILL NOT ENDORSE, WARRANT, OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH THE WEBSITE, AND WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PURCHASERS OF PRODUCTS OR SERVICES OFFERED THROUGH OR RESULTING FROM THE SERVICES OR USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL SALES OF GOODS OR SERVICES, CREDIT CARD TRANSACTIONS, BANKING OR SECURITIES TRANSACTIONS, OR ANY BUSINESS, SERVICE OR MERCHANDISE AGREEMENTS.

 

11.  Data Management.

(a)    Access, Use, & Legal Compulsion. Unless it receives Recipient’s prior written consent, Provider: (i) will not access or use Recipient Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Recipient Data. Notwithstanding the foregoing, Provider may disclose Recipient Data as required by applicable law or by proper legal or governmental authority. Provider will give Recipient prompt notice of any such legal or governmental demand and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient’s expense.

(b)   Recipients Rights. Recipient possesses and retains all right, title, and interest in and to Recipient Data, and Provider’s use and possession thereof is solely as Recipient’s agent.

(c)    Retention & Deletion. Provider will retain all Recipient Data until erased pursuant to the Data Policy.

(d)   Injunction. Provider agrees that violation of the provisions of this Section 11 might cause Recipient irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Recipient will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

12.  Term & Termination.

(a)    Unless otherwise stipulated herein or in the related order process (the "Order Process"), this Agreement shall begin in accordance with the above (the "Effective Date") and shall automatically renew for successive terms or otherwise continue until terminated in accordance with this Agreement. Novicius may terminate this Agreement immediately for any or no reason and without notice to Customer. Without limiting the foregoing, Novicius reserves the right to suspend or terminate all Services immediately with or without notice to Customer if Novicius determines, in its sole discretion, that Customer has failed to comply with its obligations as set forth in this Agreement.

(b)   Term. This Agreement will continue for until termination by either party as specifically authorized herein following the Effective Date (a “Term”). Thereafter, this Agreement will renew for subsequent terms (“Terms”) of a month or a year dependent on what the recipient initially signed up for, unless either party notifies the other of its intent not to renew 5 or more days before the beginning of the next Term.

(c)    Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach.

(d)   Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 4, 5(b), 6, and 7 of this Agreement; (iii) recipient understands that upon termination of services all recipient data will be deleted; (iv) recipient will lose access to materials, website, and any other content generated, created, or provided by Provider ; (v) any other provision of this Agreement that must survive termination to fulfill its essential purpose.

13.  Miscellaneous.

(a)    Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received 5 days after they are sent. Recipient may send notices pursuant to this Agreement to P.O BOX 1741, MIDLAND TX 79702, and such notices will be deemed received 10 days after they are sent.

(b)   Amendment. Provider may amend this Agreement (including the SLA and Data Policy) from time to time by posting an amended version at its website and sending Recipient written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Recipient first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Recipient’s next Term following the Proposed Amendment Date (unless Recipient first terminates this Agreement pursuant to Section 13 above). Recipient’s continued use of the Service following the effective date of an amendment will confirm Recipient’s consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by Authorized Representatives of each party. Notwithstanding the foregoing, Provider may amend the AUP or Privacy Policy at any time by posting a new version at its website and sending Recipient notice thereof, and such amended version will become effective 7 business days after such notice is sent.

(c)    Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.

(d)   No Waiver.  Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

(e)    Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement. 

(f)    Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.

(g)   Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Texas without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Midland, Texas, United States of America.

(h)   Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

(i)     Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the SLA the terms of this main body will govern. In the event of any conflict between this Agreement and any Provider policy posted online, including without limitation the AUP and Privacy Policy, the terms of this Agreement will govern.

(j)     Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.

(k)     Publicity. Neither Party shall issue any press release or other public announcement related to this Agreement, written or oral, without the prior written consent of the other party, except as required by law or a court order.

 
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