General Terms of Service
Effective Date: September 10, 2019
Last Updated: September 10, 2019
We updated the Webzy Terms of Service on September 10, 2019. These changes will be effective October 1, 2019 to Customers who signed up for Webzy Services before September 10, 2019.
THESE TERMS SHOULD BE READ CAREFULLY, AS THEY AFFECT THE PARTIES’ LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING WEBZY’S LIABILITY AND REQUIRING ARBITRATION OF CERTAIN DISPUTES. CUSTOMER AGREES TO CHECK FOR UPDATES TO THESE GENERAL TERMS OF SERVICE.
THESE GENERAL TERMS OF SERVICE (the “TOS”), including all Quotes and Change-orders, and the following terms of service: (a) Web Design; (b) Website Hosting; (c) Email Hosting; (d) LinkedIn® Marketing; (e) Social Media Management; (f) Facebook® Marketing; (g) Email Marketing; and (h) Search Engine Optimization, which by this reference are incorporated herein, are a binding agreement between Monster Technology, LLC dba Webzy.io (“Webzy”) and the legal entity identified in the Quote or Change-order (referred to as the “Customer”). Webzy and Customer may be individually referred to as a “Party” or collectively as the “Parties.” These TOS shall govern all Quotes, Change-orders, and any other contracts or agreements entered into between Webzy and the Customer. In the event of any conflict among the documents that comprise the TOS, the following order of precedence shall apply: (i) a Quote (solely as to type, quantity, and pricing of the Services or Hardware ordered thereunder); (ii) a Change-order (solely as to the Services ordered thereunder and the billing of amounts related thereto); (iii) these TOS; (iv) the applicable TOS for a particular Service; and (iv) Quotes and Change-orders (as to all other terms).
- “Benefits” means certain discounts, features, promotions, and other benefits associated with Customer’s purchase of the Services as offered to Customer in marketing and informational materials, on the Webzy website(s), or in other materials and as more specifically described in Section 9.2.
- “Change-order” means any document that may be issued by Webzy in Webzy’s sole discretion to the Customer which details changes to, additions to, or subtractions from Services at any time after the Start Date.
- “Covered Claim” means a claim that one Party intends to assert against the other Party, its affiliates, or any of their personnel, other than: (a) provisional remedies related to claims related to infringement or misappropriation of intellectual property, or violations of Section 10 (Customer Conduct); (b) claims of Webzy or its affiliates relating to billed amounts; and (c) claims that the other Party is expressly required to defend under these TOS.
- “Deliverable(s)” means the Services and work product specified in the Quote or Change-order to be delivered by Webzy to Customer including without limitation websites or web pages and Software.
- “Design Time” means the process of creating or editing websites or web pages including without limitation layout, content production, and graphic design.
- “Duration” means the length of time that Webzy provides Customer the Services as stated in the Quote or Change-order, beginning on the Start Date. Each renewal period following the initial Duration is considered a separate Duration.
- “Electronic Signature” or “Electronically Sign(s)” means the process of an electronic sound, symbol, or other process, including clicking a digital button to accept, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
- “Email” means electronic mail hosting Services.
- “End User” means an individual user to whom Customer makes the Services available, and may be a natural person, and may include but is not limited to Customer’s employees, consultants, clients, external users, contractors, customers, and agents.
- “Fixed Service Fee” means any Services requiring a fixed monthly fee as stated in the Quote or Change-order and shall be payable monthly, in advance, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees.
- “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
- “Major Change(s)” means any changes of the scope of Services that in Webzy’s sole discretion adds extra costs to the Services and requires a Change-order (Major Changes include, by way of example and without limitation, new functionality, additional revision sets, advanced testing and optimization).
- “NRC” means a Non Recurring Charge, a one-time charge.
- “Project” means the scope and purpose of the Customer’s identified usage of the Service as described in the Quote or Change-order.
- “SEO” means Search Engine Optimization.
- “Service(s)” means provisioning of web design services, website hosting services, email hosting services, LinkedIn® marketing services, social media management services, Facebook® marketing services, email marketing services, search engine optimization services, and any related customer support services. This list is not exhaustive and may be modified by Webzy at any time and in Webzy’s sole discretion. In any event, Services shall mean any work done by Webzy for Customer set forth in any Quote or Change-order.
- “Software” has the definition and is subject to the terms detailed in Section 7.
- “Start Date” means the date on which Webzy begins providing the Services to Customer.
- “System Degradation” means a decrease in connectivity and response speed throughout a given network.
- “Tweet(s)” means a post or posts made on the social media channel Twitter®.
- “Usage Fee” means those costs for Services that are based on the usage by Customer and Customer’s End Users, or website visitors, storage, server number, or ad-spend amount, or any other variable factors plus all applicable taxes, tariffs, governmental assessments, surcharges and fees.
- “White Label Services” means Services provided by Webzy to a Customer who rebrands these services as their own for the benefit of their clients.
- Third-Party Website Permission. The Services may include social media tools that may, among other things, allow Customer to manage access, post content and manage content on social network platforms (for example, LinkedIn®, Facebook® and Twitter®). These tools may also allow Customer to use the Services to access and analyze information found on social media sites. Customer hereby grants Webzy all required permissions to access such sites and provide such Services as may be described in a Quote or Change-order.
- Company Delays. Webzy shall use commercially reasonable efforts to meet a delivery schedule if indicated on a Quote or Change-order. Webzy may extend the due date for any Deliverable by giving written notice to Customer indicating the new time frame for delivery. Webzy makes no guarantees or warrantees about meeting a schedule for any Deliverable.
- Client Delays. Customer shall use best efforts to provide needed information, materials and approvals. Any delay by Customer will result in a day-for-day extension of any due date for all Deliverables. If certain materials or content is needed from Customer to complete a Project and Customer delays the delivery of such content for thirty (30) days, then Webzy may terminate Services or deliver the Deliverable “AS IS” and all monies paid will be retained by Webzy and if applicable, an additional cost will be charged to the Customer for all work completed beyond what was already paid for.
- Major Changes. All Major Changes will require a Change-order signed by Customer.
- Discounted Bundled Services. Any discounts that Customer receives in a Quote or Change-order for multiple Services are contingent on the specific number and type of Services indicated in that Quote or Change-order. Any alteration to the number and type of Services may result in a change in price for all Services, including any discounted Services.
- The Services may use and include certain software (the “Software”).
- End User License Agreement. Customer’s use of any Software is subject to the End User License Agreement that accompanied that Software. Unless otherwise indicated in a Quote or Change-order, with regard to any Software (including Software upgrades, changes, or supplements) which is not accompanied by an End User License Agreement, Monster, or its applicable third party licensors, grants Customer a limited, personal, nontransferable, and nonexclusive right and license to use the object code of its Software for the Services; provided that Customer does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or structure, sequence and organization of, sell, assign, sublicense, distribute, rent, lease, grant a security interest in, or otherwise transfer any right in the Software. All licenses terminate immediately on the date that the Services expire or are otherwise terminated. Customer acknowledges that this license is not a sale of intellectual property and that Monster or its third-party licensors, providers, or suppliers continue to own all right, title, and interest to the Software and related documentation. The Software is protected by the copyright laws of the United States and international copyright treaties.
- Export Limits. Customer shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country or on any such list.
- Restricted Rights. The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Restricted Rights clause at 48 CFR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 and in similar clauses in the NASA FAR Supplement.
- NOTICE ABOUT AUTOMATIC SOFTWARE UPGRADES. Webzy, or its applicable third-party licensors may provide Software upgrades, updates, or supplements (such as, but not limited to, adding or removing features or updating security components). Customer understands and agrees that Webzy, or the applicable third-party licensor, have the unrestricted right, but not the obligation, to upgrade, update, or supplement the Software at any time. Although unlikely, Software upgrades, updates, or supplements could reset and erase Customer’s erase saved preferences and stored content and Webzy shall have no liability for any erasure of saved preferences and stored content.
- Non-Webzy Software, Services or Applications. Customer’s use of the Services may also include access to and use of software, services and/or applications which interact with the Services and which are provided by non-Webzy third parties, and, when applicable, those third-parties terms and conditions apply to Customer’s access to and use of such non-Webzy software, services and/or applications. Webzy is not liable to Customer for any loss or injury arising out of or caused, in whole or in part, by Customer’s use of any such software, services, and/or applications accessed through, or in conjunction with, the Services.
- Payment Cycle and Cancellation. Except where otherwise indicated in the TOS, billing for the Services commences on the Start Date. Recurring charges for each month’s Services will be billed one month in advance. Billing is based on a 30-day cycle. Non-recurring and usage-based charges for the Services generally will be billed in the billing cycle following the transaction. Customer’s first bill for Services may include pro-rated charges for a partial monthly period prior to the Start Date. Upon termination, subject to applicable law, Customer’s effective date of cancellation will be the last day of Customer’s current billing cycle and Customer will receive Service until the end of Customer’s billing cycle (exceptions may apply to certain promotional periods and must be in writing). Customer will not receive a prorated credit or refund for any remaining days of Service in Customer’s billing cycle after termination. Customer’s Service will continue until the end of the bill cycle. A downgrade fee may apply if Customer makes changes to Customer’s Service within thirty (30) days of Service provisioning or later orders.
9.2. Promotions and Contingent Benefits. Customer may receive or be eligible for Benefits. Any and all such Benefits are provided to Customer so long as Customer continues to meet qualification requirements; provided, however, such Benefits may be modified or terminated at any time as set forth in these TOS or if Customer changes Customer’s Services. Unless otherwise set forth in Benefits materials, standard fees will be charged at the conclusion of the Benefits period or when Customer no longer qualifies for the Benefits.
9.3. Fixed Service Fee. Fixed Service Fees are identified in the Quote or Change-order. The Fixed Service Fee for the first month of Service shall be due and payable prior to the Start Date. Customer’s first bill for Fixed Service Fees may include pro-rated charges for a partial monthly period prior to the Start Date. Thereafter, the Fixed Service Fee is due and payable in advance on the first day of each month and are considered late if not received by Webzy by the tenth calendar day of that month.
9.4. Credit Card Authorization. At the time Customer Electronically Signs the Quote or Change-order, Customer must provide Webzy with a valid email address and a credit card number from a card issuer that Webzy accepts in order to activate the Services. Customer hereby authorizes Webzy to charge and/or place a hold on Customer’s credit card with respect to any unpaid charges related to the Services including those charges arising from Section 12.2. Customer authorizes the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and Customer agrees that these TOS are accepted as authorization to the issuer of the credit card to pay all such amounts. Customer authorizes Webzy and/or any other company who bills products or services, or acts as billing agent for Webzy to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Customer’s credit card until such amounts are paid in full. Customer agrees to provide Webzy with updated credit card information upon Webzy’s request and any time the information Customer previously provided is no longer valid. Customer is solely responsible for maintaining and updating all credit card information. Without limiting the applicability of any other provisions of these TOS, Customer acknowledges and agrees that neither Webzy nor any Webzy-affiliated company will have any liability whatsoever for any non-sufficient funds or other charges incurred by Customer as a result of such attempts to charge, and/or place holds on, Customer’s credit card. If Customer mistakenly provides a debit card number, instead of a credit card number, Customer authorizes all charges described herein to be applied to such debit card unless and until Customer provides a credit card number. In the event Customer is enrolled, or later enrolls, in an automatic payment or electronic funds transfer plan, Customer agrees that all sums described herein may be charged, at Webzy’s option, to the account number provided for such automatic payment or electronic funds transfer plan.
9.5. Late Payments/Failure to Pay. If any amount due to Webzy is not received within ten (10) days of due date, the amount due shall incur interest at a rate of the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate allowed by law. Webzy’s acceptance of late or partial payments (regardless of how they are marked or designated, including without limitation as “Paid in Full,” “Accord and Satisfaction,” or similarly) shall not waive, limit, or prejudice in any way Webzy’s rights to collect any amount due. In addition to interest, an administrative charge of 5% of the amount due may be assessed in Webzy’s sole discretion and the Service may be discontinued. The administrative charge is intended to be a reasonable advance estimate of Webzy’s loss and damages resulting from Customer’s late payments and non-payments and is set in advance due to the difficulty inherent in determining Webzy’s loss and damages associated with any particular late payment or non-payment. If the Service is discontinued, Customer will be required to pay a reconnect fee in addition to all past due amounts before the Service is reconnected. Webzy does not anticipate that the Customer will fail to make payments on a timely basis. Webzy does not extend credit to the Customer, and the administrative charge is not interest, a credit service charge, or a finance charge. In the event Customer fails to pay Webzy or Webzy is unable to bill charges to Customer’s credit card, Webzy, in Webzy’s sole discretion, may assign unpaid late balances to a collection agency and the costs of that collection agency shall be paid by the Customer. Customer expressly authorizes, and specifically consents to allowing, Webzy and/or its outside collection agencies, outside counsel, or any other agents acting by or on behalf of Webzy to contact Customer with informational messages regarding Customer’s account, including but not limited to contact in connection with any and all matters relating to unpaid past due charges billed by Webzy to Customer. Customer agrees that such contact may be made to any mailing address, telephone number, cellular phone number, e-mail address, or any other electronic address that Customer has provided, or may in the future provide, to Webzy and to any and all telephone numbers on Customer’s account. Customer expressly consents and agrees that such contact may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, text messages delivered by an automated system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system. Customer agrees to provide true, accurate, current and complete contact information to Webzy and its authorized agents and to promptly update Customer’s contact information to keep it true, accurate, and complete.
9.6. Price Changes. Webzy has the right to change the pricing of any Services at any time upon 30 days’ notice.
9.7. Credit Inquiries. Customer authorizes Webzy to make inquiries and to receive information about Customer’s credit experience from others, enter this information in Customer’s file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes. Webzy reserves the right, in its sole discretion, to refuse to provide Service based upon lack of creditworthiness, or in the alternative to require an additional deposit that will be returned to Customer, without interest thereon, upon the expiration or termination of Services assuming all amounts due Webzy have been paid in full. Webzy shall have the absolute right to offset against the deposit, in part or in full, any amounts due to Webzy.
10. Customer Conduct. NEITHER CUSTOMER NOR ANY END USERS SHALL USE THE SERVICES FOR ANY ILLEGAL, FRAUDULENT, IMPROPER, OR ABUSIVE PURPOSE OR IN ANY WAY THAT INTERFERES WITH WEBZY’S ABILITY TO PROVIDE HIGH QUALITY SERVICES TO OTHER CUSTOMERS, PREVENTS OR RESTRICTS OTHER CUSTOMERS FROM USING THE SERVICES, OR DAMAGES ANY PROPERTY OF WEBZY OR OF ANY OTHER CUSTOMERS. A breach of any obligation in this Section 10 (Customer Conduct) constitutes a material breach of these TOS, such that Webzy may, in its sole and unfettered discretion, suspend Services, terminate Services immediately, or take any other action Webzy deems necessary to provide the Services to Customer and others, to protect Customer, the Services, and the Webzy networks, and to enforce this Section. This Section in no way limits Webzy’s rights to otherwise suspend or terminate Services under these TOS.
10.1. Prohibited Conduct. Neither Customer nor any End User may use or allow use of the Services or the Software in any of the following ways:
10.1.1. Illegal or inappropriate behavior. Using the Services in any manner that is in violation of applicable law, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious, or invasive of another’s privacy.
10.1.2. Spamming. Sending messages or advertisements, including email, voicemail, SMS, or faxes, without the consent of the recipient or otherwise in violation of applicable law.
10.1.3. Harvesting information. Harvesting or otherwise collecting information about others, including email addresses, without their consent or in breach of applicable data protection or privacy laws.
10.1.4. Transmitting viruses. Negligently, recklessly, knowingly, or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
10.1.5. Infringement of rights. Transmitting any material that may infringe, misappropriate, or otherwise violate the Intellectual Property rights, rights of privacy, personality, or publicity or other rights of Webzy or third parties, including but not limited to the display or use of any Webzy mark in any manner that violates Webzy’s then-current policies on its trademark and logo usage or without Webzy’s express prior written permission, or display or use of any third-party mark without the prior written permission of the third party that owns any such third-party mark.
10.1.6. Derivative Works. Undertaking, directing, attempting, causing, permitting, or authorizing the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services or any other Software.
10.1.7. Illegal communications. Transmitting any communication that would violate any applicable law, or using the Services to facilitate any illegal activity.
10.1.8. Excessive usage. Utilizing the Services in excess of what, in Webzy’s reasonable discretion, would be expected of normal business use.
10.1.9. Interfering with another customer’s use of the Services. Using the Services in any way that interferes with, disrupts, prevents or restricts other customers’ and third parties’ use and enjoyment of the Services.
10.1.10. Network Interference. Interfering with, or disrupting, networks or systems connected to the Services.
10.1.11. Avoiding compliance. Using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit, or otherwise avoid compliance with these TOS or applicable law.
10.1.12. Granting rights to third parties with respect to the Services. Selling, reselling, distributing, leasing, exporting, importing, or otherwise granting or purporting to grant rights to third parties with respect to the Services or any part thereof without Webzy’s prior written consent.
10.1.13. Unauthorized usage. Undertaking, directing, attempting, causing, permitting, or authorizing the copying, modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services or parts thereof.
10.1.14. Circumvention of security measures. Defeating, disabling, or circumventing any security mechanism related to the Services.
10.1.15. Interception. Intercepting, capturing, sniffing, monitoring, modifying, emulating, decrypting, or redirecting, any communication or data for any purpose, including, without limitation, by causing any product to connect to any computer server or other device not authorized by Webzy or in any manner not authorized in advance in writing by Webzy.
10.1.16. Unauthorized Access. Gaining access to or using (or attempting to gain access or use) any device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining).
10.1.17. Using any Webzy mark without consent. Displaying or using any Webzy mark in any manner in violation of the then-current Webzy policies on its trademark and logo usage or without Webzy’s express, prior written consent, to be granted or denied in Webzy’s sole discretion.
10.1.18. Using any third party’s mark without consent. Displaying or using any third party’s mark without the prior, written consent of the third party that owns that mark.
10.1.19. Protected Health Information. If Customer qualifies as a “covered entity,” “business associate,” or “subcontractor” under HIPAA or are otherwise subject to HIPAA: (1) transmitting, receiving, or storing protected health information (“PHI”) on a non-temporary basis, transmitting or receiving PHI; or otherwise using the Services in violation of HIPAA.
- Service Interruptions; Prorated Credit. Except as otherwise required by law, Customer is entitled to a prorated credit upon request only in the event of a complete failure of the Services due to technical malfunction of the system or network operated by Webzy for a period of twenty-four (24) consecutive hours or more. To obtain a credit, Customer must request a credit in writing to Webzy within thirty (30) days of the failure. Credits shall be applied against any future fees due to Webzy for the Services. A credit is the only remedy available to Customer in case of a Service interruption and in no event will Webzy be required to pay Customer any amount at all for a Service interruption. Webzy is not required to extend Customer a credit for any amount in excess of the prorated amount of fees due to Webzy from Customer for the duration of the interrupted Services. No credit will be provided for failures caused by factors described in Section 18.5. (Force Majeure).
- Automatic Renewal & Termination.
- Automatic Renewal; Customer Termination Process. Webzy’s provision of the Services shall automatically renew for a period equal to the initial Duration on each anniversary unless Customer provides written notice of cancellation to Webzy forty five (45) days before the end of each Duration. That forty-five-day notice requirement applies to all Customer-initiated termination processes. For all Services with a Fixed Service Fee, Customer may only terminate those Services prior to the end of the each Duration by giving written notice to Webzy and by payment of an amount equal to the number of months remaining in the Duration multiplied by the amount of the monthly Fixed Service Fee (a “Fixed Service Fee Termination Amount”). For Services billed with Usage Fees, Customer may only terminate prior to the end of the Duration by giving written notice to Webzy and by payment of an amount equal to the number of months remaining in the Duration multiplied by the average of the prior three (or if less than three months have elapsed, the average of the actual number of months elapsed) months’ Usage Fees (a “Usage Fee Termination Amount”). All such types of fees described in this Section 12 are collectively or individually referred to as a “Termination Fee.” ANY CUSTOMER TERMINATION NOTICE WHICH IS NOT TIMELY AND ACCOMPANIED BY THE APPLICABLE TERMINATION FEE WILL RESULT IN THE CUSTOMER’S TERMINATION NOTICE DEEMED VOID. WEBZY PROVIDES NO REFUNDS FOR DELIVERABLES AT ANY TIME.
- 6-Month Commitment for Discounted Deliverables. Notwithstanding any other part of these TOS, if Customer elects in any Quote or Change-order to receive discounted Deliverables, then the discount of those Deliverables is contingent on Customer maintaining all Services described in that Quote or Change-order for a period of six (6) calendar months following the Start Date. If Customer terminates or alters Services within a six-(6-) calendar-month period, then Webzy may, at Webzy’s option, immediately charge Customer the difference between the full price for any discounted Deliverables (the price indicated on the Quote or Change-order before discount) and the discounted amount, in addition to any Termination Fees.
- Termination by Webzy. Webzy may terminate the Services immediately should Customer violate any of these TOS. Webzy may also terminate the Services for any other reason by providing Customer written notice of such termination no later than thirty (30) days before the date of termination. In the event that Webzy terminates the Services for any reason other than Customer’s violation of these TOS, Fixed Service Fees, Usage Fees and other charges will continue to accrue through the date of termination, but all prepaid fees and charges for terminated Services will be refunded, except as provided in Section 12.2. If termination is due to violation of these TOS, Customer will owe Webzy a Termination Fee as the case may be.
- Customer Obligations. Customer agrees that upon termination of this Agreement for any cause, Customer will pay Webzy in full for Customer’s use of the Services up to the effective date of termination of the Services except where otherwise provided in these TOS. Customer agrees to pay Webzy on a prorated basis for any use by Customer of the Services for any part of a month.
- Customer acknowledges that Customer, by affixing an Electronic Signature to a Quote or Change-order, agrees to these TOS on behalf of all persons who use the Services through Customer’s computer(s), and other equipment and electronic devices. Customer shall have sole responsibility for ensuring that all End Users understand and comply with these TOS. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of these TOS whether such breach is the result of use of the Services by Customer or by any other user of Customer’s computer(s), and other equipment and electronic devices, including End Users.
- DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TOS AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND WEBZY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT WEBZY CANNOT DISCLAIM ANY SUCH WARRANTY, AS A MATTER OF APPLICABLE LAW THE SCOPE AND DURATION OF THAT WARRANTY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
- LIABILITY EXCLUSIONS. UNLESS OTHERWISE SPECIFICALLY AND EXPRESSLY PROVIDED IN THESE TOS OR OTHERWISE PROVIDED BY LAW, NEITHER WEBZY, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY:
- FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, OR DAMAGES OF ANY KIND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE DAMAGED PARTY HAS BEEN INFORMED IN ADVANCE THAT SUCH DAMAGES WERE REASONABLY FORESEEABLE. THIS INCLUDES WITHOUT LIMITATION ANY DAMAGES RESULTING FROM OR ARISING OUT OF CUSTOMER’S RELIANCE ON OR USE OF THE SERVICES OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICES AND ANY DAMAGES RESULTING FROM WHITE LABEL SERVICES; OR
- FOR ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATED TO A CONTENTION THAT THE USE OF THE SERVICES INFRINGES UPON THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INTELLECTUAL PROPERTY RIGHTS, CONTRACTUAL RIGHTS, OR ANY OTHER RIGHTS OF ANY THIRD PARTY.
- FOR CHANGES TO OR DISCONTINUATION OF SEARCH ENGINES OR DELAYED OR NON-CONFORMING PERFORMANCE OF THE SERVICES DUE TO CHANGES MADE TO STANDARD TERMS, ASSESSMENT ALGORITHMS, SEARCH CRITERIA, VIEWING POLICY, PRICES AND CAMPAIGN OFFERS OR OTHER MATTERS BEYOND WEBZY’S CONTROL.
- FOR SERVICES RELATING TO SEARCH ENGINE OPTIMIZATION, LINK BUILDING, ADVERTISEMENTS, BANNERS OR SPONSORSHIPS LEADING TO A MINIMUM NUMBER OF VIEWS, POSITION OR FREQUENCY IN SEARCHES ON RELEVANT WORDS OR OTHERWISE FOR ENSURING THAT SUCH SERVICES LEAD TO A CERTAIN VOLUME OF TRAFFIC, NUMBER OF CLICKS, REGISTRATIONS, PURCHASES OR THE LIKE.
- FOR URLS DROPPED OR EXCLUDED BY A SEARCH ENGINE FOR ANY REASON.
- FOR ANY LACK OF SUCCESS EXPERIENCED BY THE CLIENT RELATING TO THE SERVICES.
- DIRECT DAMAGES CAP. IN ANY EVENT, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH WEBZY IN RELATION TO OR ARISING OUT OF THE SERVICES OR SOFTWARE IS A REFUND NOT TO EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO WEBZY FOR SERVICES DURING THE IMMEDIATELY PRECEEDING SIX (6) MONTH PERIOD.
- Customer agrees that Webzy has set its prices and entered into this contract with Customer in reliance upon the disclaimers of warranty and the limitations of liability set forth in these TOS, that they reflect an allocation of risk between the Customer and Webzy (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between Customer and Webzy.
- Customer agrees to indemnify and hold Webzy and its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any claim, demand, action, citation, or legal proceeding, including, but not limited to, those arising out of or resulting from the death or bodily injury of any person, or the damage, loss, or destruction of any real or tangible personal property, or for attorneys’ fees, made by any party against Webzy, its subsidiaries, affiliates, directors, officers, agents, and employees arising out of or related to Customer or End User use of or inability to use the Services, Customer’s or End Users’ connection to the Services, the provisioning or alleged failure to provision the Services, a violation of any provision of these TOS, or Customer or End User violations of any rights of any third party.
- No Third Parties. No third party is a party to any agreement between Webzy and Customer, including without limitation these TOS. Webzy is not liable to any third party for any aspect of the Services, including without limitation functionality or availability.
- Sole Remedies. Customer’s sole and exclusive remedies arising out of or related to the Services, or Software are as set forth in these TOS.
- Dispute Resolution.
- Pre-Filing Notice. Each Party shall, before initiating an arbitration, court or other action, suit, or proceeding against the other Party, its affiliate, or their personnel in respect to any Covered Claim (each a “Proceeding”), provide written notice to the other Party describing in reasonable detail its contentions and the specific provisions of the TOS, if any, allegedly breached. The Parties shall work diligently and in good faith for thirty (30) days following such notice to attempt to resolve the dispute, including without limitation by ensuring that knowledgeable executives of each Party hold at least one meeting (in person or by video- or tele-conference) to such end. If the Parties fail to resolve the dispute within such thirty- (30-) day period, either Party may thereafter initiate the Proceeding in accordance with these TOS (and without satisfying any further notice or cure period under the TOS). FAILURE TO COMPLY WITH THIS SECTION 16.1 (PRE-FILING NOTICE) MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO, AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY PROCEEDING INSTITUTED IN CONTRAVENTION HEREOF.
- Mandatory Arbitration. (IF CUSTOMER IS DOMICILED IN THE US, THIS SECTION 16.2 (MANDATORY ARBITRATION) SHALL APPLY TO ALL COVERED CLAIMS; OTHERWISE, IT SHALL APPLY TO ONLY COVERED CLAIMS RELATING TO SERVICES PROVIDED IN THE US.) COVERED CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services provided or billed to Customer if Covered Claims are asserted against Webzy in the same proceeding. Arbitration will be conducted under AAA’s published commercial arbitration rules. Customer and Webzy agree to bear their own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. The place of arbitration shall be Los Angeles County, California. The language of the arbitration shall be English.
- Except for Covered Claims or as otherwise provided in Section 16.2., in the event that the Parties are unable to resolve any dispute, any related action, lawsuit, or proceeding shall be brought in and adjudicated by state or federal courts located in the city and county of Los Angeles, California, United States of America. Each Party hereby irrevocably consents to and agrees to submit to the exclusive venue and personal jurisdiction of such courts with respect to any such actions, lawsuits, or proceedings (except as provided in Section 16.2) and irrevocably waives any right that the Party might have to assert that either forum is not convenient or that any such courts lack personal or subject matter jurisdiction.
- Attorneys’ Fees. Except with regard to any matter submitted to arbitration under Section 16.2., and in any case except with regard to Covered Claims, if any dispute, litigation, or other action or proceeding arises between the Parties arising out of or related to these TOS or the Services, the prevailing Party in such proceeding shall be entitled to receive its actual attorneys’ fees, expert witness fees, and out of pocket costs incurred in connection with that action, litigation, or proceeding, in addition to any other relief it may be awarded.
- Notices. All notices permitted or required under these TOS shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery or, if the courier attempted delivery on a normal business day and delivery was not accepted, upon attempted delivery, (iii) by facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, ten (10) calendar days after deposit in the mail. Such notices shall be sent to the addresses set in the Quote or Change-order or such other address as a Party shall notify the other Party of in writing.
If to Webzy:
US Mail: 1730 E. Holly Ave., El Segundo, CA 90245
Fax: +1 (424) 645-0741
With a copy to:
Red Road Legal, PC
Attn.: General Counsel
7650 E. Kenyon Avenue
Denver, CO 80237
If to Customer:
US Mail & Fax: As indicated in the Quote or Change-order.
- Electronic Signature and Counterparts. An agreement between Webzy and Customer may be executed electronically and in separate counterparts each of which when taken together will constitute one in the same original. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate any agreement between the Parties and to have the same force and effect as manual signatures.
- The headings in these TOS are inserted for convenience and do not constitute a part of these TOS, nor do the headings modify or limit any part of these TOS.
- Webzy may assign its rights and obligations under these TOS to any party without the consent of Customer. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Webzy.
- Relationship of the Parties. The Parties’ relationship under the TOS is that of independent contractors. Nothing in the TOS shall constitute or create any employment, partnership, association, joint venture, agency, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind or obligate the other Party in any way.
- Force Majeure. Excluding either Party’s payment obligations under the TOS, neither Party shall be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of God; national emergency; riot; war; terrorism; governmental act or direction; laws; failure, outage, or unavailability of third party network(s), products, or system(s); fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; or strike or labor disturbance. In the event that the affected Party is prevented from performing an obligation under the TOS for more than forty-five (45) consecutive days, either Party may terminate the Services on written notice to the other Party.
- Third-Party Beneficiaries. Nothing in the TOS, express or implied, is intended to or shall confer upon any person or entity other than the Parties themselves any right, benefit, claim, or remedy as a third-party beneficiary or by any other nature whatsoever under or by reason of the TOS.
- Each Party represents and warrants that: (i) it possesses the legal right and capacity to agree to these TOS and to perform all of its obligations thereunder; (ii) the individual Electronically Signing the Quote or Change-order on that Party’s behalf has full power and authority to execute and deliver the same; and (iii) the TOS are a binding obligation of that Party.
- Choice of Law. These TOS, and any other agreement regarding the Services between Customer and Webzy, are exclusively governed by and intended to be construed under the laws of the State of California without regard to California’s conflicts-of-law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TOS or Customer’s use of the Services.
- Class Action Waiver. Any actions, lawsuits, or proceedings shall be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or in any other proceeding in which any Party acts or proposes to act in a representative capacity.
- Equitable Relief. Customer agrees that any breach of Webzy’s IP Rights, or of any provisions of Section 10 (Customer Conduct) will cause Webzy irreparable harm for which monetary damages will be inadequate and that Webzy may, in addition to other remedies available at law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.
- No Waiver. Except as expressly provided in these TOS, in no event will any failure or delay by a Party to assert or exercise any right, demand fulfilment or performance of any obligation, or avail itself of any remedy under these TOS, in whole or in part, be deemed a waiver of any right or remedy under these TOS on such occasion or any other occasion. Except as otherwise expressly provided in these TOS, all rights and remedies stated in these TOS are cumulative and in addition to any other rights and remedies available at law, or in equity.
- Entire Agreement. These TOS constitute the entire agreement between the Parties and supersede and replace any and all prior or contemporaneous understandings, proposals, representations, statements, or agreements, whether oral, written, or otherwise, regarding the Services. Webzy expressly rejects in their entirety any additional or conflicting terms or conditions contained in any order confirmation, sales acknowledgment, purchase order, or similar document, which the Parties agree are solely for their convenience.
- If any provision or portion of the TOS is determined to be invalid, unlawful, illegal, void, or unenforceable, in whole or in part, then (i) that provision or portion shall be construed in such a manner as to render the provision or portion enforceable and, to the extent possible, to reflect the Parties’ original intent and (ii) the remaining provisions and portions of the TOS shall remain in full force and effect.
- The following shall survive termination of these TOS or the Services:
- Customer’s payment obligations;
- Terms relating to IP Rights, Customer representations, Customer Conduct, confidentiality, storage of user information, publicity rights, non-disparagement, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and
- All other provisions that are intended by their nature to survive termination of this agreement.
Web Design Terms of Service
These Web Design Terms of Service are subject to and incorporated into the General Webzy TOS and in the event of a conflict between the two, the General Webzy TOS will control. Any capitalized terms have the definition indicated in the General Webzy TOS unless otherwise indicated.
- Timeline Policy. Due to the unique nature of each Customer’s needs, we do not guarantee any exact deadline for completion of any website. Any industry average timeline could take longer due to delays in feedback, complicated requests, or delays in receipt of required items. Any estimated deadlines are for convenience only and never represent a guarantee or warranty.
- Design Time. If a Quote or Change-order indicates that Customer will receive an allotted amount of Design Time per month, then that amount of Design Time must be used, if at all, within the calendar month for which it is allotted. Webzy will give no credits or refunds for unused Design Time under any circumstances.
- Browser Compatibility. All websites Webzy produces are designed to be compatible with the latest major modern browsers (within past 2 years) such as Chrome, Firefox, Edge and Safari. Webzy will not guarantee 100% compatibility for browsers older than 2 years.
- Mobile and Tablet Compatibility. All websites Webzy produces are designed to be compatible with the latest mobile and tablet browsers (within past 2 years) focused with unique CSS media query breakpoints for Iphone, Ipad and a standard Android browser.
Website Hosting Terms of Service
These Website Hosting Terms of Service are subject to and incorporated into the General Webzy TOS and in the event of a conflict between the two, the General Webzy TOS will control. Any capitalized terms have the definition indicated in the General Webzy TOS unless otherwise indicated.
- Website Migration Fee. If Customer moves its website content to another hosting account, a website migration fee will be charged.
- Visitor Number Limit. Customer is allotted no more than two thousand (2,000) visitors per day to its hosted websites. If Customer’s visitor traffic exceeds this amount, than additional Usage Fees and server upgrade fees will be applied.
- Website Content. Webzy will not host any website that contains, links to, or promotes any material that is unlawful, abusive or libelous. Webzy reserves the right to refuse to host any website that Webzy deems to be inappropriate. Webzy does not endorse products nor is Webzy liable for any product claims on hosted websites. Webzy does not discriminate on the basis of race, religion, national origin, or political viewpoint.
- Notice to Move Website. Webzy requires fifteen (15) days’ notice to move Customer’s website from Webzy’s servers to a third-party hosting account. Notice must provide Webzy full access to Customer’s target third-party hosting account for the sole purpose of moving Customer’s website to that target third-party hosting account.
- Backup Copies. Customers terminating website hosting may request the final backup files made on the day of termination. A processing fee may apply.
Email Hosting Terms of Service
These Email Hosting Terms of Service are subject to and incorporated into the General Webzy TOS and in the event of a conflict between the two, the General Webzy TOS will control. Any capitalized terms have the definition indicated in the General Webzy TOS unless otherwise indicated.
- Webzy grants Customer a revocable, non-exclusive, non-transferable and limited license to use Email.
- User Availability. Webzy shall use commercially practical and reasonable efforts to make the Email available to Customer and End Users approximately 24 hours per day and 7 days per week. No warranties or guarantees are made regarding minimum availability.
- Response Time. Webzy shall use commercially practical and reasonable efforts to ensure acceptable response times for End Users accessing the Email. No warranties or guarantees are made regarding any minimum response time.
- No Email Back-Up. No Email back-up is maintained by Webzy.
- No Transaction Information. Webzy does not maintain any transaction activity summary in connection with sending or receiving Email.
- System Degradation. In the event of system degradation, to protect server and Email, Webzy reserves the right in Webzy’s sole discretion to temporarily or permanently filter or block the Email.
- NO DATA SECURITY. Internet data transmission is not secure. Webzy may use, copy, display, store, transmit, translate, rearrange or reformat, view and distribute the transmitted data of Email for technical operation purposes. No assurance, guarantee, or warranty is given as to privacy or security of any data, in whole or in part.
- CUSTOMER RESPONSIBILITIES.
- Liability/Loss. Customer shall be solely responsible for any liability, loss or damage in connection with use of the Email by Customer and Customer’s End Users.
- Data Management. Customer shall be solely responsible for management of data stored on or transmitted by Email. Such management includes, but is not limited to, backup and restoration of data.
- Customer shall be solely responsible to maintain any security procedures Customer deems appropriate, such as encryption of data, to protect Customer’s and End Users’ information.
- CUSTOMER WARRANTIES. Customer warrants to Webzy that it will not do the following in connection with the Email:
- Selling products or services that are unlawful in the location at which the content is posted or received;
- Incorporating into the Email any material, text, graphic, sound or animation in any form that, without limitation, may be obscene, defamatory, harassing, grossly offensive, malicious, or that actually or potentially infringes or misappropriates the copyright, trademark, proprietary or other intellectual property right of any person;
- Posting any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence;
- Posting any content that holds Webzy, its employees, agents, or owners up to public scorn or ridicule;
- Introducing viruses, worms, harmful code, trojan horses on the internet, and/or using any software or device to interfere or attempt to interfere with the proper functioning of any server or other internet facilities;
- Harassment, whether through language, frequency, or size of messages;
- Sending Email to any person who does not wish to receive it;
- Sending unsolicited bulk mail messages (“junk mail” or “spam”) which, in Webzy’s sole judgment, is disruptive or generates a significant number of user complaints. This includes bulk-mailing of commercial advertising, informational announcements and political tracts;
- Forwarding or otherwise propagating chain letters and pyramid schemes, whether or not the recipient wishes to receive such mailings;
- Malicious email, such as “mailbombing” or flooding a user or site with very large or numerous pieces of email;
- Forging of header information; or
- Collecting replies to messages sent from another internet service provider where those messages violate these TOS or the acceptable use policy or terms of service of that other provider.
LinkedIn® Marketing Terms of Service
These LinkedIn® Marketing Terms of Service are subject to and incorporated into the General Webzy TOS and in the event of a conflict between the two, the General Webzy TOS will control. Any capitalized terms have the definition indicated in the General Webzy TOS unless otherwise indicated.
ASSUMPTION OF RISK. CUSTOMER ACKNOWLEDGES AND AGREES THAT WEBZY HAS DISCUSSED WITH CUSTOMER THE NATURE AND TYPE OF SOFTWARE USED IN LINKEDIN® MARKETING. CUSTOMER ACKNOWLEDGES THAT THE LINKEDIN® MARKETING SOFTWARE IS BY ITS NATURE RISKY AND CARRIES WITH IT THE RISK OF PERMANENT DELETION OF CUSTOMER’S LINKEDIN® PROFILE, PAGE, AND LINKEDIN® IDENTITY. CUSTOMER, AS A MATERIAL PART OF THE CONSIDERATION OF WEBZY PROVIDING THE SERVICES, AGREES THAT CUSTOMER ASSUMES ALL RISK OF HARM RESULTING FROM WEBZY’S USE OF LINKEDIN® MARKETING SOFTWARE INCLUDING WITHOUT LIMITATION THE RISK OF CUSTOMER’S LINKEDIN® PROFILE, PAGE, AND LINKEDIN® IDENTITY BEING PERMANENTLY DELETED. WEBZY WILL HAVE NO LIABILITY WHATSOEVER FOR ANY INJURY, LOSS, OR DAMAGE SUFFERED BY CUSTOMER OR ANY END USER AS A RESULT OF PROVIDING THE SERVICES. THE ABOVE LIMITATIONS ON LIABILITY APPLY EVEN THOUGH THE WEBZY MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH INJURY, LOSS OR DAMAGE. CUSTOMER AGREES TO INDEMNIFY WEBZY FOR ANY DAMAGES CAUSED TO THIRD PARTIES AS THE RESULT OF WHITE LABEL SERVICES RENDERED UNDER THESE LINKEDIN® MARKETING TERMS OF SERVICE TO THE SAME DEGREE AS IN THE INDEMNIFICATION PROVISIONS OF THE TOS.
Social Media Management Terms of Service
These Social Media Management Terms of Service are subject to and incorporated into the General Webzy TOS and in the event of a conflict between the two, the General Webzy TOS will control. Any capitalized terms have the definition indicated in the General Webzy TOS unless otherwise indicated.
- Administrative Privileges. Customer agrees to provide Webzy all administrative privileges necessary to accomplish the Services.
- In addition to all other disclaimers in the TOS, Customer understands and agrees to the following with regard to Social Media Management Services:
- Webzy’s Discretion to Tweet. Customer acknowledges that Webzy will provide Customer with categories of content that Customer wishes Webzy to Tweet. Customer may contact Webzy to change categories of content from time to time. Webzy will use ordinary commercial care to develop Tweet content pursuant to Customer’s selections of categories of content and Webzy has complete and sole discretion to post Tweets according to Webzy’s marketing strategy. Customer will not have the opportunity to review Tweets before the Tweet is posted. Customer cannot submit text content to Webzy to be Tweeted.
- Deletion of Tweets. While Webzy may delete a Tweet from Customer’s Twitter® account, Webzy has no control over whether a particular Tweet has been cached or cross-posted on third-party websites, applications, or search engines. Webzy cannot delete Tweets from any such third-party websites, applications, or search engines and Webzy has no liability to Customer or any End User for any injury, loss, or damage to Customer or End Users that results from the inability to delete a particular Tweet.
- Ownership of Images and Content. Customer warrants that Customer has ownership of or appropriate license to all images and other content that Customer provides to Webzy in any manner.
Email Marketing Terms of Service
These Email Marketing Terms of Service are subject to and incorporated into the General Webzy TOS and in the event of a conflict between the two, the General Webzy TOS will control. Any capitalized terms have the definition indicated in the General Webzy TOS unless otherwise indicated.
- In Customer’s use of the Services, Customer will represent itself accurately and will not impersonate any other person, whether actual or fictitious. Customer agrees that it is the sole or designated “sender” (as such term is defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the “CAN-SPAM Act”)) of any message sent by Customer using the Services. Similarly, for messages sent to Canadian email accounts, Customer is the sole person sending or causing or permitting the message to be sent by Customer using the Service (within the meaning of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“Canada’s Anti-Spam Legislation”)). Customer agrees that for any email message sent by Customer using the Service, (i) the “from” line of any email message sent by Customer using the Service will accurately and in a non-deceptive manner identify Customer’s organization, Customer’s product or Customer’s service, (ii) the “subject” line of any email message sent by Customer using the Service will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (iii) Customer will include Customer’s valid physical address, which, if Customer is located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service. Customer is responsible for ensuring that Customer’s use of the Services do not generate a number of spam or other complaints in excess of industry norms. Webzy may terminate Customer’s Services if Webzy determines that Customer’s level of spam or other complaints is higher than industry norms, as determined by Webzy in our sole discretion. As a matter of privacy, Webzy will not share with Customer information about those recipients who complain about Customer’s use of the Services or file a spam report against Customer.
- Contact Lists, Consent. Customer agrees to use only contact lists in connection with the Services for which all listed parties have consented to receive correspondence from Customer. It is not sufficient consent to receive email correspondence from Customer if a person or organization participates in a survey or registers for an event, clicks “Like” on Customer’s Facebook® page, or “follows” Customer on Twitter®. If Customer has used a feature that allows Customer to request a recipient to confirm that Customer has the recipient’s permission to send messages to such recipient (assuming such use is permitted by laws applicable to Customer), and such recipient has not responded or does not respond affirmatively to such request for confirmation, Customer agrees that Customer shall not send messages to that recipient. Customer agrees not to send messages through the Service to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.
- Every email message sent in connection with the Service must contain an “unsubscribe” link that allows subscribers to remove themselves from Customer’s mailing list. Each such link must remain operational for at least 60 days after the date on which Customer sends the message, and must be in form and substance satisfactory to Webzy. Customer agrees that Customer will not remove, disable, or attempt to remove or disable that link. Customer shall monitor and process unsubscribe requests received by Customer directly within 10 days of submission and update the email addresses to which messages are sent through Webzy. Customer cannot charge a fee, require the recipient to give Customer any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act and other applicable laws, Customer acknowledges that Customer is responsible for maintaining and honoring the list of unsubscribe requests following termination of Services and these TOS. Customer agrees that Customer shall not utilize the Service to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose) (a “commercial electronic mail message” as defined in the CAN-SPAM Act or Canada’s Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from Customer or another sender on whose behalf Customer may be acting.
- Compliance with Laws. The Services shall only be used for lawful purposes and Customer shall use the Services only in compliance with these TOS and all other applicable U.S., state, local and international laws in Customer’s jurisdiction, including:
- the CAN-SPAM Act;
- Canada’s Anti-Spam Legislation;
- any policies and laws related to unsolicited emails, spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws;
- laws relating to advertising, sales or promotional efforts or practices, redemption, refunds and provision of Customer’s products or services;
- laws that govern false, unfair and deceptive practices, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards;
- laws that govern lotteries, sweepstakes, contests and promotions; and
- laws that govern the collection of donations and charitable giving.
Customer agrees to refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with your use of the Services. Customer may not use the Services for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce. Customer is responsible for determining whether the Services are suitable for Customer to use in light of any regulations, such as the Health Insurance Portability and Accountability Act (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”), European data privacy laws, or other laws. If Customer is subject to a particular regulation and Customer uses the Services, then Webzy is not liable if the Services do not meet those requirements.
- Limitations on Use. Customer understands that not all messages or campaigns sent through the Services will be received by or will be capable of being viewed by their intended recipients. Customer understands that delivery of messages by means of the Services may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. Customer also understands and agrees that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short. Customer agrees that Webzy may establish general practices and limits concerning the Services, including the maximum number of messages or campaigns that may be distributed by Customer and/or the maximum size of any messages or campaigns that may be transmitted by means of the Services. Webzy reserves the right to modify, revise, suspend, or discontinue any Service in whole or in part, either temporarily or permanently and with or without notice, and Customer acknowledges that Webzy is not obligated to support or update the Service in any manner. If Webzy discontinues any Service in its entirety that Customer is using, Webzy will provide the Customer with the notice indicated in the General TOS.
- Customer’s Products and Services, Indemnification. Customer may (i) communicate about or administer contests, competitions, sweepstakes, or other similar promotional events (“Promotions”); (ii) sell Customer’s products and services and tickets to Customer’s events to Customer’s subscribers and others in the form of various promotional deals, coupons, tickets, vouchers, passes or cards (each, a “Deal”); and (iv) collect donations (each, a “Donation Campaign”). Customer is solely responsible for Customer’s products and services, events, Promotions, Deals and Donation Campaigns, including any and all injuries, illnesses, damages, claims, liabilities and costs suffered in respect thereto. Customer shall bear all costs of procuring and delivering Customer’s products and services, Promotions (including any prizes offered), Deals, running Customer’s events and Donation Campaigns, including any associated shipping, taxes and any other fees associated therewith. Customer holds all necessary governmental and third-party licenses, approvals, authorizations and registrations necessary to offer Customer’s products and services, Promotions, Deals and run Customer’s events and Donation Campaigns, if any. Customer agrees to provide Customer’s products and services, Promotions, Deals, and run Customer’s events and Donation Campaigns in a safe and professional manner, consistent with industry best practices, including keeping reliable records. Customer is solely responsible for any and all statements and promises Customer makes and for all user assistance, warranty and support of Customer’s products and services, Promotions, Deals, events and Donation Campaigns and to comply with any promises Customer makes to its customers, users, donors and donees. Customer further agrees to provide contact information for any End User questions, complaints or claims. Customer agrees that Customer’s Promotions and Deals will prominently include any applicable rules, restrictions or limitations necessary to comply with applicable law, these TOS and Customer’s own requirements (the “Offer Terms”) and Customer agrees to comply with the same. Any such Offer Terms must be presented to prospective purchasers before they commit to make a payment or take any other action and must include any terms provided by Webzy. If Customer uses the Services to offer a Promotion, Customer is responsible for ensuring that Customer complies with applicable law relating to eligibility requirements (for example, age and residency restrictions), the selection of winners and all prizes offered in connection with the Promotion (for example, registration and obtaining necessary regulatory approvals) and that Customer’s Offer Terms include the foregoing to the extent applicable. Customer shall ensure that the rules for each Promotion (i) state that each entrant or participant unconditionally releases Webzy of any liability arising from the Promotion, and (ii) inform each entrant or participant that the Promotion is in no way sponsored, endorsed or administered by, or associated with Webzy. Customer agrees to indemnify Webzy and hold Webzy harmless from any and all claims and losses arising from Customer’s violation of this Section to the same extent as the indemnification described in the General TOS.
- For every listing, message or campaign sent or distributed via the Services, you agree that Webzy may add a link to Webzy’s website and a promotional statement such as “Email Marketing by Webzy” or “Powered by Webzy” in the footer or other similar location that does not unreasonably obscure the listing, message, or campaign.
- Monitoring and Removal. Although Webzy has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Webzy may do so and may block any messages or campaigns, remove any content, including surveys, event registrations, social campaigns, Promotions, Deals or Business Content, or prohibit any use of the Services that Webzy believes may be in violation of any provision of these TOS. Customer understands and agrees that Webzy and any applicable third party who supports, posts, publishes or distributes Customer’s Promotions, Deals or Business Content also has the right to reformat, edit, monitor, reject, block or remove any of Customer’s Promotions, Deals or Business Content at any time. In no case will the foregoing make Webzy responsible or liable for compliance with any such laws or obligations, for which Customer remains solely responsible and liable.
- Customer acknowledges that Webzy may from time to time provide Customer with marketing advice and other coaching, template design, frequently asked questions and tips on best practices and complying with applicable law, including any sample Offer Terms. Customer acknowledges that such assistance and information is provided as a convenience to Customer and that such assistance and information are not intended to and do not constitute legal advice and that no attorney-client relationship is formed. Webzy does not warrant or guarantee that use of or compliance with this information will be sufficient to comply with Customer’s obligations hereunder, with applicable law, or with third party rights.
SEO Terms of Service
These SEO Terms of Service are subject to and incorporated into the General Webzy TOS and in the event of a conflict between the two, the General Webzy TOS will control. Any capitalized terms have the definition indicated in the General Webzy TOS unless otherwise indicated.
- Assignment of Specific Rights. For the purposes of receiving the Services, Customer agrees to provide Webzy the following:
- FTP and other back-end access to Customer’s website for uploading new web pages and making changes on the web pages for the purpose of on-page optimization;
- Permission to communicate directly with any third parties (e.g., Customer’s web designer) if necessary;
- Full access to existing website traffic statistics for analysis and tracking purposes;
- Permission to use Customer’s official email address for the purpose of requesting links; and
- Authorization for Webzy’s use of all Customer’s IP Rights for all uses as deemed necessary for Webzy for SEO and social media optimization.
- In addition to all other disclaimers in the TOS, Customer understands and agrees to the following with regard to SEO Services:
- All fees are non-refundable.
- Webzy has no control over the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. Customer’s website may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory.
- Due to the competitiveness of some keywords or phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Webzy cannot and does not guarantee number one positions or consistent top ten positions for any particular keyword, phrase, or search term.
- Google® has been known to hinder the rankings of new websites (or pages) until they have proven their viability to exist for a certain period of time or have enough back-link strength. Webzy assumes no liability for ranking, traffic, or indexing issues related to Google®’s policies. Consequently, Customer understands that ranking new websites is much more difficult than ranking old and established sites and Customer agrees that Webzy has made no representations, oral or written, about rankings, traffic, or revenues.
- New websites may get temporary boosts in ranking for some targeted keywords for a few days before ranking decreases (known as “new site boost effect”). Consequently, Customer understands and acknowledges that Customer’s new site may experience fluctuations in rankings and may decrease in ranking. Customer agrees Webzy has no liability for such increases and decreases in rankings.
- Search engines may drop listings for no apparent reason and Webzy has no liability for such occurrences.
- Webzy has no liability for added expenses caused by the destruction of the SEO process through the following changes made by Customer or any Party other than Webzy:
- Changes in file(s) or folder(s) names;
- Relocation of files into different folders or sub domains;
- Changes in the head section of a document such as the text of a title tag, or removing certain HTML tags required for site authentication;
- Deleting a link, folder, file, web document, or sub domain;
- Modifying text on a web document such as formatting or repositioning;
- Removing analytics code from a web page;
- Linking out to any website without approval of Webzy;
- Adding a file, folder, web document, widget, or any other functionality;
- Renaming URLs of existing web documents;
- Taking down the website or any part of the website;
- Renaming, relocating, adding, or removing any file, folder, or subdomain on a web server including web documents, robots.txt, .htacess file, sitemap.xml, or rss.xml.
- Changes in website architecture;
- Changes in anchor text; or
- Changes on an optimized web page.
Facebook® MARKETING Terms of Service
These Facebook® Marketing Terms of Service are subject to and incorporated into the General Webzy TOS and in the event of a conflict between the two, the General Webzy TOS will control. Any capitalized terms have the definition indicated in the General Webzy TOS unless otherwise indicated.