TERMS OF USE
Welcome to this website (the "Site"), which is owned and operated by Comiseo, LLC ("DriveBy"). DriveBy maintains the Site as a service to its visitors ("you"), subject to the following terms and conditions concerning the use of the Site ("Terms of Use"), which supplements any General Service Agreement (and Schedules) that you may have with us.
When you use the Site, you accept the Terms of Use; if you do not agree to the Terms of Use you may not use the Site.
DriveBy reserves the right to modify content on the Site and these Terms of Use periodically without prior notice.
1. Applicable and Binding Agreements
DriveBy offers services on the Site. When you enroll to obtain a service from DriveBy on the Site, you accept the specific agreement applicable to that service.
Your use of any service offered on the Site is governed by this Terms of Use, the General Services Agreement, and any applicable Schedule for that product or service. Except as provided in your agreement(s), DriveBy does not warrant that any descriptions or content contained in this website is accurate, current, reliable, complete, or error-free.
2. Conditions to Access the Content and Use of the Services
You view, download, and print contents from the Site subject to the following conditions:
a. The content may be used solely for information purposes; the content may not be modified or altered in any way; and you agree to comply with all applicable local, state, national, and international laws and regulations regarding the use of all Services provided by DriveBy.
b. You may not republish, distribute, prepare derivative works, or otherwise use the content other than as explicitly permitted herein.
c. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of DriveBy without the express written consent of DriveBy.
d. You may not use any meta tags or any other "hidden text" utilizing DriveBy's name or trademarks without the express written consent of DriveBy.
e. You may not use any DriveBy logo or other proprietary graphic or trademark as part of the link without express written permission.
f. You do not acquire any ownership rights to any content in the Site. Any unauthorized use terminates the permission or license granted by DriveBy.
You may use the Services subject to the following conditions:
aa. You may access and use our services for lawful purposes only and you are solely responsible for the knowledge and adherence to any and all laws, statutes, rules and regulations pertaining to your use of our services.
bb. You agree that you will not (i) use the services to commit a criminal offense or to encourage conduct that would constitute a criminal offense or give rise to a civil liability, or otherwise violate any local state, Federal or international law or regulation; (ii) upload or otherwise transmit any content that you do not have a right to transmit under any law or contractual or fiduciary duty; (iii) interfere or infringe with any trademark or proprietary rights of any other party; (iv) interfere with the ability of other users to access or use our services; (v) claim a relationship with or to speak for any individual, business, association, institution or other organization for which you are not authorized to claim such a relationship; (vi) interfere with or disrupt the service or servers or networks connected to the service, or disobey any requirements, procedures, policies or regulations of networks connected to the service; or (vii) reproduce, duplicate, copy, use, distribute, sell, resell or otherwise exploit for any commercial purposes any portion of the services.
cc. Prohibited Uses. The following is a non-exclusive list of prohibited uses of our services:
1. Transmission, distribution, uploading, posting or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, material kept in violation of state laws or industry regulations such as social security numbers or credit card numbers, and material that is obscene, defamatory, libelous, unlawful, harassing, abusive, threatening, harmful, vulgar, constitutes an illegal threat, violates export control laws, hate propaganda, fraudulent material or fraudulent activity, invasive of privacy or publicity rights, profane, indecent or otherwise objectionable material of any kind or nature. You may not transmit, distribute, or store material that contains a virus, "Trojan Horse," adware or spyware, malware, corrupted data, or any software or information to promote or utilize software or any of DriveBy services to deliver unsolicited e-mail. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, gives rise to civil liability or otherwise violates any applicable local, state, national or international law or regulation.
2. Sending Unsolicited Bulk Email ("UBE", "spam"). The sending of any form of Unsolicited Bulk Email through DriveBy services is prohibited.
3. Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by DriveBy customers must be "Confirmed Opt-in". The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing lists of email addresses from 3rd parties for mailing is prohibited.
4. Advertising, transmitting, or otherwise making available or using any software, program, product, or service that is designed to violate this Terms of Use.
5. Obtaining or attempting to obtain service by any means or device with intent to avoid payment.
6. Using DriveBy's services in a manner that interferes with the use or enjoyment of the DriveBy services by other customers or users.
7. Impersonating any person or entity, including, but not limited to, a DriveBy official, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
3. Responsibility for Content And Other Communications
a. You are solely responsible for the content you furnish to DriveBy in connection with your Web site or other services we provide to you, or make available to others through use of our services. DriveBy cannot and does not design, review or screen content you provide to us for inclusion in your Web site (or that you use, provide or make available in connection any services we provide to you) and does not assume any obligation to monitor such content. However, you agree that we may review your Web site or other content in responding to a third party complaint or for any other reason.
b. You may submit comments and provide other content so long as the content is not obscene, illegal, threatening, or defamatory and so long as the content does not invade the privacy or infringe the intellectual property of a third party.
c. Further, such content may not contain software viruses, mass mailings, chain letters, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of the information.
d. By submitting information, you grant DriveBy a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to reproduce, use, modify, publish, adapt, translate, create derivative works from, distribute, and display such content throughout the world in any media.
e. By submitting information you also represent and warrant that that the content is accurate; you own or have permission to use the content that you submit; and that use of the content will not cause injury to any person or entity.
4. Consequences for Violations
a. If DriveBy determines in its sole discretion that your conduct violates the terms of this Terms of Use, DriveBy may suspend, restrict, terminate, delete content, or take any other appropriate action with regard to your services without any obligation to refund fees paid.
b. DriveBy reserves the right to take such actions without notice to you.
c. You understand that we reserve the right to conclude that your conduct is in violation of the standards set forth in this Terms of Use, and we may arrive at such a conclusion even if it is based upon our opinion or mere suspicion or belief, without any duty to prove that our opinion or suspicion is well founded, and even if (i) our opinion or suspicion is proven not to be well founded or (ii) we provide other customers services that have similar characteristics or are being used in a similar manner as your services.
d. You agree that we, in responding to a third party complaint, reserve the right in our sole discretion to suspend or terminate the services subject to this Terms of Use without notice and with no obligation to refund fees paid.
e. You also understand and agree that by providing you services, DriveBy in no way endorses your Web site or deems your content to be suitable under the terms of this Terms of Use.
f. You agree that DriveBy shall under no circumstances be held liable on account of any action it takes, in good faith, to restrict transmission of material that it or any user of the services considers to be fraudulent, obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
5. Copyright Ownership Information
The Site and the content within the Site are the property of DriveBy or its suppliers and are protected by United States copyright laws and international treaty provisions. The compilation, organization and display of the content as well as all software and inventions used on and in connection with this Site are the exclusive property of DriveBy. DriveBy reserves all rights in the Site and its content not specifically granted in any agreements with DriveBy or in the Terms of Use.
DriveBy respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please submit notice of your claim to info@godriveby.com
To be effective, the notification of your claim of copyright infringement should be written and should include the following:
- A statement that you are the owner of the exclusive right you claim has been infringed, or a statement that you are authorized to act on behalf of the owner of an exclusive right that has allegedly been infringed.
- A statement, under penalty of perjury, that the information in the notification is accurate.
- Your signature. (The signature may be either physical or electronic.)
- The identification of the copyrighted work you claim has been infringed. (If you claim that multiple copyrighted works have been infringed you can submit one notification with a list of the allegedly infringed works.)
- Identification of the material that you claim to be infringing and information reasonably sufficient to permit DriveBy to locate the material.
- Information reasonably sufficient to permit DriveBy to contact you, including your address, telephone number, fax number and, if available, an electronic mail address. You can provide contact information for the owner of the exclusive right that you claim has been infringed if you are not the owner, but rather authorized to act on behalf of the owner.
- A statement you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
a. Any marks indicated on our site are registered trademarks of DriveBy in the United States and/or other countries.
b. Other DriveBy marks, graphics, logos, page headers, etc. noted on the Site are DriveBy' service marks, trademarks and trade dress and are the sole and exclusive property of DriveBy.
c. DriveBy's service marks, trademarks and trade dress may not be used in any manner that is likely to cause confusion among customers, in any manner that disparages or discredits DriveBy and in connection with any service or product that is not sponsored, endorsed or produced by DriveBy.
d. All other trademarks not owned by DriveBy or its subsidiaries that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by DriveBy.
Because we respect your right to privacy, we have developed a Privacy Policy to inform you about our privacy practices. Please view the Privacy Policy to learn more about the company's privacy guidelines.
9. Third Party Web Sites and Information
a. The Site may provide hyperlinks to third party websites or access to third party content. DriveBy does not control, endorse, or guarantee content found in such sites.
b. You agree that DriveBy is not responsible for any content, associated links, resources, or services associated with a third party site.
c. You further agree that DriveBy shall not be liable for any loss or damage of any sort associated with your use of third party content.
d. Links and access to these sites are provided for your convenience only.
10. Disclaimer
a. EXCEPT AS EXPRESSLY STATED IN AN AGREEMENT BETWEEN YOU AND DRIVEBY, ALL CONTENT, SERVICES, PRODUCTS AND SOFTWARE PROVIDED ON THIS WEB SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
b. DRIVEBY AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
c. YOU ARE SOLELY RESPONSIBLE FOR THE APPROPRIATENESS OF THE SITE, ITS CONTENT, AND THE PRODUCTS AND SERVICES OFFERED BY DRIVEBY ON THE SITE FOR YOUR INTENDED APPLICATION AND USE.
d. DRIVEBY DOES NOT WARRANT THAT THE SITE, ITS CONTENT, OR THE PRODUCTS AND SERVICES IT OFFERS ON THE SITE MEET YOUR REQUIREMENTS.
e. SUBJECT TO THE TERMS OF ANY AGREEMENT BETWEEN YOU AND DRIVEBY, DRIVEBY, ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF DRIVEBY, ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
f. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify, and hold harmless DriveBy and its employees, attorneys, and agents ("Indemnitees") against all claims, expenses, liabilities, losses, costs, and damages, including reasonable attorney's fees, that the Indemnitees may incur (i) in connection with your use of the Site or Services, or (ii) resulting from content you supply.
12. Applicable Laws
All matters relating to your access to and use of the Site shall be governed by the laws of Minnesota without regard to its conflict of law principles. Any legal action or proceeding relating to your access to or use of the Site shall be instituted in a state or federal court in the jurisdiction in which the specific website you are viewing is hosted.
If there is a determination that any provision of these Terms of Use is invalid or unenforceable, that determination will not affect the rest of the Terms of Use and the Terms of Use shall be deemed amended to the minimum extent necessary to make them valid and enforceable.
If you have any questions regarding these Terms of Use, please contact DriveBy at info@godriveby.com
General Service Agreement
Last Updated: August 14th , 2015
ALL SERVICES ARE GOVERNED BY THE GENERAL TERMS AND CONDITIONS THAT ARE LISTED BELOW ALONG WITH THE TERMS IN THE APPLICABLE SCHEDULE(S) FOR THE SPECIFIC SERVICES THAT ARE PURCHASED.
1. AGREEMENT AND ACCOUNT INFORMATION.
a. In this Service Agreement ("Agreement"), "you" and "your" refer to each customer ("Customer") and its agents, including each person listed in your account information as being associated with your account, and "we", "us" and "our" refer collectively to Comiseo, LLC and its affiliates and subsidiaries ("DriveBy").
b. This Agreement explains our obligations to you, and your obligations to us in relation to the DriveBy service(s) you purchase.
c. By purchasing or otherwise applying for DriveBy service(s), you agree to establish an account with us for such services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional DriveBy service(s) or to modify or cancel your DriveBy service(s) (even if we were not notified of such authorization), this Agreement as amended covers any such services or actions.
d. Additionally, you agree that each person listed in your account information as being associated with your account for any services provided to you is your agent with full authority to act on your behalf with respect to such services in accordance with the permissions granted, and that the "Primary Contact" for your account shall have the authority, without limitation, to terminate, transfer (where transfer is permitted by the Agreement), or modify such services or your account information, or purchase additional services.
e. Any acceptance of your application(s) or requests for our services and the performance of our services will occur at our offices in Minneapolis, Minnesota, the location of our principal places of business.
f. Except as otherwise expressly set forth in this Agreement, you agree that if you list, directly or by default, DriveBy as a contact for your account and/or any of the services in your account, we have the right, without notice, to remove our name and/or information from any such account or service and to replace the same with the name and/or information provided by you for any other contact associated with that account or service.
2. VARIOUS SERVICES.
a. Sections 1 through 29 apply to any and all DriveBy services that you purchase, whether purchased separately or as a part of a complete solution or package bundle. The terms and conditions set forth in the Schedules of this Agreement apply only to customers who have purchased the DriveBy services referenced in those Schedules. In the event of any inconsistency between the terms of Sections 1 through 29 and the terms of the Schedules, the terms of the Schedules shall control with regard to the applicable DriveBy service.
b. IMPORTANT NOTICE CONCERNING SERVICES THAT ARE COMBINED TOGETHER: If you purchase DriveBy services that are sold together as a "bundled" package, as opposed to your purchasing such services separately, termination of any part of the services may result in termination of all DriveBy services provided as part of the bundled package. Please see Section 10 of this Agreement for more information.
c. You acknowledge and agree that some or all of the services you purchase or receive from us may be provided by one or more vendors, contractors or affiliates selected by DriveBy in its sole discretion. As a part of your Services, DriveBy may provide you access to third party functionality or services, including, but not limited to applications, widgets, RSS and other types of feeds, event and industry feeds, calculators, recommended copy, forms and templates that are incorporated or are offered as a part of one or more of the Services ("Third Party Functionality"). You expressly agree that any Third Party Functionality (including products, services or offering)s that are available to You as a part of any of the DriveBy product or services shall be used by You in accordance with the terms of any relevant third party licenses or restrictions. Your failure to abide by any third party license or restriction may result in the immediate termination of your services by DriveBy. Furthermore, DriveBy does not control such Third Party Functionality and is therefore not liable for any issues of any kind relating to the Third Party Functionality. DriveBy reserves the right, at its sole discretion, to terminate, suspend, cancel or alter your access to Third Party Functionality at any time.
3. FEES, PAYMENT AND TERM OF SERVICE.
a. As consideration for the services you purchased, you agree to pay DriveBy the applicable fees set forth on our Website at the time of your selection, or, if applicable, upon receipt of your invoice from DriveBy.
b. All fees are due immediately and are non-refundable, except as otherwise expressly noted in one or more of the Schedules to this Agreement, as required by applicable law, or as such fees are billed by DriveBy under an invoice to a Customer that expressly permits payment for Services by a Customer on other terms.
c. Unless otherwise specified herein or on our Website, each DriveBy service is for a one-year initial term and renewable thereafter for successive one to ten-year terms, as set forth during the renewal process.
d. Any renewal of your services with us is subject to our then current terms and conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service fees at the time of renewal.
e. DriveBy may charge an Account Maintenance Fee to maintain your active account. This Account Maintenance Fee shall be billed to your account each year, thirty days following the annual date of your account creation.
f. Except with respect to service to which you subscribe on a monthly basis, we will endeavor to provide you notice prior to the renewal of your services at least fifteen (15) days before the renewal date.
g. Additional payment terms may apply to the DriveBy services you purchase, as set forth in the applicable Schedules to this Agreement. Pricing for services, renewals, and product upgrades and add-ons may vary based upon the date of your purchase.
h. We may provide you with an opportunity to "opt in" to our automatic renewal process in accordance with the instructions (and subject to your agreement to the terms and conditions pertaining to that process) on our Website. You agree that if you are enrolled in or otherwise utilizing our auto-renew service, we will attempt to renew your service at some point less than ninety (90) days prior to its expiration. Such automatic renewal for your service(s), if successful, may be for a shorter term than the term for which you originally purchased your service(s), but in no event shall such term be longer than the term then-currently in place for the service(s). Such automatic renewal for your service(s), if successful, shall be at the then-current price for the service(s). You further agree that, to turn off the auto-renew service for any of your services with DriveBy, you must email us at info@godriveby.com. You acknowledge and agree that the renewal price may be higher or lower than the price you paid for the then-current term of the service, and that we are authorized to charge your credit card or other payment method on file for the renewal of the service(s). In any event, you are solely responsible for the credit card or payment information you provide to DriveBy and must promptly inform DriveBy of any changes thereto (e.g., change of expiration date or account number).
i. In addition, you are solely responsible for ensuring the services are renewed. DriveBy shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the services or our failure to provide notice of expiration of the term.
j. In order to process a renewal under our auto-renew service, we may use third-party vendors for the purpose of updating the expiration date and account number of your credit card or payment method on file. Such third-party vendors maintain relationships with various credit card issuers and may be able to provide us with the updated expiration date and account number for your credit card by comparing the information we have on file with the information the third-party has on file. By selecting our auto-renew service, you acknowledge and agree that we may share your credit card or other payment method information with such a third-party vendor for the purpose of obtaining any update to your credit card expiration date, account number, or payment account.
k. You agree to pay all value added tax ("VAT"), sales and other taxes (other than taxes based on DriveBy income) related to DriveBy services or payments made by you hereunder.
l. All payments of fees for DriveBy services shall be made in U.S. dollars. Although DriveBy may display pricing in various currencies, transaction processing is supported only in U.S. dollars and the pricing displayed during the checkout process will be an estimated conversion price at the time of purchase. If the currency of your bank or credit card account is not U.S. dollars, you may be charged exchange rate conversion fees by your bank or credit card company. In addition, due to time differences between (i) the time you complete the checkout process, (ii) the time the transaction is processed, and (iii) the time the transaction posts to your bank or credit card, the conversion rates may fluctuate, and DriveBy makes no representations or warranties that (a) the amount submitted to your bank or credit card for payment will be the same as the amount posted to your bank or credit card statement or (b) the estimated conversion price will be the same as either the amount processed or the amount posted to your bank or credit card statement, and you agree to waive any and all claims based upon such discrepancies (including any and all claims for a refund based on the foregoing). You acknowledge and agree that you may be charged VAT based on the country indicated in account holder address information associated with your account.
m. Set up fees, if any, will become payable on the applicable effective date for the applicable DriveBy services.
n. All sums due and payable that remain unpaid after any applicable cure period herein will accrue a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less.
4. ACCURATE INFORMATION.
a. You agree to: (1) provide true, current, complete and accurate information about you in the application process; and (2) maintain and update according to our modification procedures the information you provided to us when purchasing our services as needed to keep it current, complete and accurate.
b. We rely on this information to send you important information and notices regarding your account and our services.
5. PRIVACY.
a. Our privacy statement is located on our Website at http://www.godriveby.com and is incorporated herein by reference for all such DriveBy services. The applicable privacy statement sets forth your and our rights and responsibilities with regard to your personal information.
b. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Website and any such statement will be effective upon posting. You agree to periodically review our Websites, including the current version of our privacy statement. You agree that, by using our services after modifications to the privacy statement become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us except as otherwise expressly provided in one or more of the Schedules attached hereto.
c. We will not process the personal data that we collect from you in a way incompatible with the purposes and other limitations described in our privacy statement.
d. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party's personal data has been collected, (ii) the intended recipients or categories of recipients of the third party's personal data, (iii) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the data held about them. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.
6. OWNERSHIP.
a. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the DriveBy services identified herein ("DriveBy Intellectual Property Rights") are owned by DriveBy or its licensors, and you agree to make no claim of interest in or ownership of any such DriveBy Intellectual Property Rights.
b. You acknowledge that no title to the DriveBy Intellectual Property Rights is or will be transferred to you, and that you do not and will not obtain any rights, express or implied, in the DriveBy or its licensors' service, other than the rights expressly granted in this Agreement.
c. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by DriveBy and all right, title and interest in and to each such Derivative Work shall automatically vest in DriveBy. DriveBy shall have no obligation to grant you any right in any such Derivative Work.
7. EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM.
a. YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY DRIVEBY SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL DRIVEBY, ITS LICENSORS AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES EVEN IF DRIVEBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN DRIVEBY'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES.
b. DriveBy and its licensors and contractors disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of God; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store email messages; (7) loss or liability from your inability to use our service, Website or any component of the service; or (8) loss of data.
c. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, 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 AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED.
8. DISCLAIMER OF WARRANTIES.
a. YOU AGREE THAT YOUR USE OF OUR SERVICE(S) OR OUR LICENSORS' SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT.
b. WE AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER DRIVEBY NOR OUR LICENSORS MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE OR OUR LICENSORS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
c. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
d. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
9. INDEMNITY.
a. You agree to release, indemnify, defend and hold harmless DriveBy and any of our (or their) contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, relating to or arising out of (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the DriveBy services or your use of such services, including without limitation infringement or dilution by you, or someone else using our service(s) from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our rules or policies relating to the service(s) provided, (e) any information or data you supplied to DriveBy, including, without limitation, any misrepresentation in your application, if applicable, or (f) the inclusion of metatags or other elements in any website created for you or by you via the DriveBy services.
b. We shall have the right to participate in any defense by you of a third-party claim related to your use of any of the DriveBy services, with counsel of our choice. We shall reasonably cooperate in the defense at your request and expense.
c. You shall have sole responsibility to defend us against any claim, but you must receive our prior written consent regarding any related settlement. The terms of this section will survive any termination or cancellation of this Agreement.
10. TERMINATION.
a. By You. You may terminate this Agreement upon at least thirty (30) days written notice to DriveBy for any reason.
b. By Us. We may terminate this Agreement or any part of the DriveBy services at any time in the event you breach any obligation hereunder, fail to respond within ten (10) calendar days to an inquiry from us concerning the accuracy or completeness of the information referred to in Section 4 of this Agreement, if we determine in our sole discretion that you have violated this Agreement, or for any other reason in DriveBy' sole discretion upon written notice to you.
c. Effect of Termination. Except as otherwise expressly set forth herein or on our Website, DriveBy will cease charging your credit card, if applicable, for any monthly service fees as of the expiration of the monthly billing cycle in which the termination is effective. Unless otherwise specified in writing by DriveBy, you will not receive any refund for payments already made by you as of the date of termination, and, you may incur additional fees as provided in various Schedules. If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs DriveBy incurs in closing your account. Upon termination, you shall destroy any copy of the materials licensed to you hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, we may delete all information related to you on the DriveBy service, if applicable.
d. Effect of Termination of Solutions or Bundled Services. In addition to the terms set forth in subsection 10(c) above, if you purchase DriveBy services which are sold together as a solution or bundled package of Services, any termination relating to such solution will terminate all DriveBy services included in such bundle.
e. Upon the effective date of termination, DriveBy will no longer provide the solution or bundled Services to you, any licenses granted you shall immediately terminate, and you shall cease using such services immediately; provided, however, that we may, in our sole discretion and subject to your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow you to convert certain services included in the bundled services to stand alone services. Should you or we cancel or terminate your Services at any time prior to the completion of the one-year term, such cancellation or termination may result in an early termination fee charged to your account.
f. If you breach any term of this Agreement including, but not limited to, the terms of any Schedule, DriveBy may, in its sole and exclusive discretion, suspend or terminate your Services immediately and without notice to you. Service Fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Service Fees that accrue during the period of suspension.
11. REPRESENTATIONS AND WARRANTIES.
a. You agree and warrant that: (i) neither your registration nor use of the any of the DriveBy services nor the manner in which you intend to use such DriveBy Services will directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you are of legal age to enter into this Agreement; and (iv) you agree to comply with all applicable laws and regulations.
12. MODIFICATIONS TO AGREEMENT.
a. Except as otherwise provided in this Agreement, you agree during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the Services provided under this Agreement at any time.
b. Any such revision or change will be binding and effective after posting of the revised Agreement or change to the service(s) on DriveBy Websites, or upon notification to you by email or United States mail. You agree to periodically review our Websites, including the current version of this Agreement available on our Websites, to be aware of any such revisions.
c. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as expressly noted otherwise in one or more of the Schedules to this Agreement, but you will not incur any additional fees.
d. By continuing to use DriveBy Services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Website of a general informational nature.
e. No employee, contractor, agent or representative of DriveBy is authorized to alter or amend the terms and conditions of this Agreement.
13. ACCOUNT ACCESS.
a. To access or use the DriveBy services or to modify your account, you may be required to establish an account and obtain a login name, account number, password and/or passphrase. You authorize us to process any and all account transactions initiated through the use of your password and/or passphrase.
b. You are solely responsible for maintaining the confidentiality of your password and passphrase. You must immediately notify us of any unauthorized use of your password or passphrase, and you are responsible for any unauthorized activities, charges and/or liabilities made through your password or passphrase. In no event will we be liable for the unauthorized use or misuse of your login name, account number, password or passphrase.
c. You agree that we may log off any account that is inactive for an extended period of time.
14. AGENTS.
a. You agree that, if your agent, (e.g., your Primary Contact or employee) purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein.
b. Your continued use of our services ratifies any unauthorized actions of your agent.
c. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent.
15. OTHER POLICIES.
a. In addition to the terms and conditions set forth in this Agreement, the purchase of services may make other DriveBy Policies applicable to you and the use of our services. In making a purchase of our services, you agree to the terms set forth in those policies.
b. DriveBy reserves the right to make changes to these policies.
c. You agree to periodically review the policies to be aware of any such revisions.
16.
17. NOTICES AND ANNOUNCEMENTS.
a. Except as expressly provided otherwise herein, all notices to DriveBy shall be in writing and delivered via overnight courier or certified mail. All notices to you shall be delivered to your mailing address or email address as provided in your account information (as updated by you pursuant to this Agreement) or to any email address associated with your registration(s) with DriveBy.
b. You authorize us to contact you as our customer by telephone, at the number provided by you in your account information (as updated by you pursuant to this Agreement), email, SMS message or postal mail regarding information that we deem is of potential interest to you. Notices and announcements may include commercial emails, telephone solicitations and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security or to enhance your identity on the Internet and/or other relevant matters.
18. SEVERABILITY.
a. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
19. ENTIRE AGREEMENT.
a. You agree that this Agreement, the rules and policies incorporated by reference in this Agreement (including, without limitation, the dispute policy and the privacy statement) are the entire, complete and exclusive agreement between you and us regarding our services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement, including, without limitation, any purchase order provided by you for the services.
20. ASSIGNMENT AND RESALE. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the services (or portion thereof) without DriveBy's prior express written consent.
21. GOVERNING LAW.
a. You and DriveBy agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the Minnesota excluding its conflict of laws rules. You and we each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the District of Minnesota for any disputes between you and DriveBy under, arising out of, or related in any way to this Agreement (whether or not such disputes also involve other parties in addition to you and DriveBy). If there is no subject matter jurisdiction in the United States District Court for the District of Minnesota for any such disputes, you and we agree that exclusive jurisdiction and venue shall be in the courts of Hennepin county, Minnesota.
b. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement.
22. AGREEMENT TO BE BOUND.
a. By applying for a DriveBy service(s) through our online application process or otherwise, or by using the service(s) provided by DriveBy under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
23. INDEPENDENT PARTIES.
Neither party nor its employees, consultants, contractors or agents is an agent, employee or joint venturer of the other party, and does not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise. Except as otherwise expressly stated herein, we agree there shall be no third party beneficiaries to this Agreement.
24. WAIVER.
a. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of DriveBy.
b. The remedies of DriveBy under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies.
c. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
25. EXPORT RESTRICTIONS. You acknowledge and agree that you shall not import, export, or re-export directly or indirectly, any commodity, including your products incorporating or using any DriveBy services in violation of the laws and regulations of any applicable jurisdiction.
26. FORCE MAJEURE.
a. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over DriveBy, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, DriveBy may immediately terminate this Agreement.
27. HEADINGS.
a. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
28. SURVIVAL.
a. In the event this Agreement terminates as provided herein, Sections 1, 2, 3, 6, 7, 8, 9, 10(c), 10(d), 11, 14, 15, and 17 through 29 of this Agreement shall survive such expiration or termination.
SCHEDULE A TO
GENERAL SERVICE AGREEMENT
WEB HOSTING SERVICES
In addition to the terms and conditions in the General Service Agreement and other applicable Schedules in the Agreement, the following additional terms and conditions shall apply to any and all purchases of Web Hosting Services (as defined below).
1. Description of Service
a. DriveBy may make available for purchase, from time to time, a variety of hosting or hosting related packages, as published on the DriveBy website (collectively, "Web Hosting Services").
b. Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, DriveBy agrees to provide to you the Web Hosting Services you purchase during the sign-up process.
c. DriveBy reserves the right to amend its Web Hosting Services offerings and to add, delete, suspend or modify the terms and conditions of the Web Hosting Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
2. Fees and Payment Terms
a. Web Hosting Services shall be paid by valid payment method (acceptable to DriveBy) at the time of purchase at the fee set forth on our Website.
b. Your monthly and, if you've selected our "auto-renew" feature, annual payments for Web Hosting Services shall be automatically charged to the payment method provided by you at the time of your purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable ("Web Hosting Services Fee"), and you hereby agree that DriveBy is authorized to so charge the payment method on file.
c. DriveBy, in its sole discretion, shall determine the prices it will charge for the Web Hosting Services, and the terms and conditions applicable to the same, and DriveBy may, upon providing prior written notice to you by email, amend such pricing and/or terms and conditions.
d. If you do not agree to any such pricing and/or terms and conditions change(s), you may terminate this Agreement (or cancel your Web Hosting Services, as applicable) as provided herein within thirty (30) days from the date of your notice; otherwise all such changes shall be effective with respect to your account, and you agree that we are authorized to charge your credit card for any new Web Hosting Services Fee, on the next monthly or annual (as applicable) payment cycle.
e. In addition to recurring service fees, DriveBy may charge set up fees and other one-time fees for any optional services as set forth on our Website and/or described in this Schedule (collectively "One-time Fees").
1. Billing for One-time Fees shall be by valid credit card (acceptable to DriveBy) at the time of purchase at the price set forth on our Website.
2. Your One-time Fees shall be automatically charged to the credit card provided by you (and acceptable to DriveBy) at the time of your purchase, and you hereby agree that DriveBy is authorized to so charge your credit card.
3. DriveBy, in its sole discretion, shall determine the prices it will charge for all One-time Fees.
f. You authorize DriveBy, in its sole discretion, to charge the credit card provided by you at the time of your purchase or forward an invoice to you immediately upon any such termination or cancellation of an annual Web Hosting Services package for the amount of the Processing Fee.
g. DriveBy will suspend your account if you request a chargeback on your credit card for automatic charges to your credit card for excess data transfer usage (see Section 6 below).
3. Term and Termination
a. Term. Your Web Hosting Services shall be either (i) on a month-to-month basis for successive monthly periods or other similar billing cycle, or (ii) if you have selected our auto-renew feature, on a year-to-year basis for successive yearly periods, or, if you have not selected our auto-renew feature, for a one-time annual period, all unless either party notifies the other of termination or cancellation in accordance with this Agreement, and subject to the then-current terms and conditions of this Agreement at the time of any renewal of your Web Hosting Services.
b. Cancellation. Subject to your obligation to pay any applicable fees, you may cancel your Web Hosting Services at any time. To cancel your Subscription Service you must notify DriveBy. Your Web Hosting Services will be canceled as of the expiration of the monthly billing cycle in which your notice was received. Any fees already paid to DriveBy shall not be reimbursed to you. Unless terminated earlier as provided herein, this Schedule, and the Agreement if you have no other services with DriveBy, will be terminated as of the cancellation of your Web Hosting Services.
c. Upon any termination of this Schedule or the Agreement for any reason, Sections 2, 3.4, 4, 5, 6, and 7 shall survive termination.
4. Additional Warranty Disclaimers and Limitations of Liability
a. ADDITIONAL DISCLAIMER. DRIVEBY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY DRIVEBY.
b. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Web Hosting Services.
c. You agree that if DriveBy takes any corrective action under this Agreement in response to your or your end users' actions or failures to act, that corrective action may adversely affect you or your end users and you agree that DriveBy shall have no liability to you or your end users due to any corrective action taken by DriveBy.
d. You agree that DriveBy has no obligation to back-up any data unless DriveBy expressly agrees otherwise in writing (or has expressly stated so on our Website). You agree that you will regularly back-up your data whether or not DriveBy agrees to or actually does back-up any data.
5. Restrictions on Use
a. DriveBy does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by you via the Web Hosting Services (the "Content"). Your Content includes content of your end users and/or users of your website. Accordingly, you are responsible for your end users' content and all activities on your website.
b. DriveBy, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, removal of all or a portion of your Content and suspension and/or termination of your Web Hosting Services, in the event of notice of any possible violation of this Agreement by you or your end users. You agree that DriveBy will have no liability to you or any of your end users due to any corrective action that DriveBy may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
c. You warrant that your Content does not, and covenant that your Content will not, violate or infringe any copyright, trademark, patent or intellectual or other proprietary property right of any third party or contain any obscene or libelous material or otherwise violate any law or regulation. You further covenant that you will not gather nor disseminate any data or information using our services in any manner that violates applicable law.
d. Your use of networks or computing resources provided to DriveBy by third party providers and made available to you as part of the Web Hosting Services is subject to the respective permission and usage policies of such third parties.
e. You expressly (i) grant to DriveBy a license to cache the entirety of your Content and your Website, including content supplied by third parties, hosted by DriveBy under this Agreement, and (ii) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
f. You agree that you will not exceed the bandwidth or storage space limits applicable to the Web Hosting Services purchased, as set forth on our Website. You agree that if you do exceed either of such limits, DriveBy, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, deletion of part or all of your content, assessment of additional fees, suspension and/or termination of your Web Hosting Services.
g. You agree that DriveBy will have no liability to you or any of your end users due to any corrective action that DriveBy may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
h. Furthermore, DriveBy's hosting servers are not an archive and DriveBy shall have no liability to you or any other person for loss, damage or destruction of any of your content. You shall not use the space provided to you on DriveBy's hosting servers in any way which may result in an excessive load on DriveBy's equipment and/or network, including but not limited to installing or running web proxies, using your allotted space as online backup or storage, or mirroring mass downloads.
i. Use of the space provided to you on DriveBy's hosting servers and your services shall be in a manner consistent with the terms and conditions of this Agreement and shall not in any way impair the functioning or operation of DriveBy ' equipment or network.
j. Should your use of the DriveBy's services result in a violation of this or any other part of this Agreement, in DriveBy's sole discretion, DriveBy may suspend your services until the cause of any such violation is determined and resolved.
6. Data Transfer Overage Charges
a. You agree that you will not exceed the data transfer (bandwidth) or storage space limits applicable to the Web Hosting Services purchased, as set forth on our Website. You agree that if you do exceed either of such limits, DriveBy, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, assessment of additional fees and/or suspension and/or termination of your Web Hosting Services. You agree that DriveBy will have no liability to you or any of your end users due to any corrective action that DriveBy may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
7. Other Terms and Conditions
a. The Web Hosting Services we provide under this Agreement may incorporate other products or services that we provide, or products or services provided by third parties with whom we have a business relationship ("Additional Services"). Your use of these Additional Services may be subject to a separate application and/or approval process and you reaching separate agreements with us or with third parties. (For example, if you desire to accept credit card payments through a website you establish via the Web Hosting Services, your relationship with the third-party merchant account provider may be subject to an application and approval process and you reaching a separate agreement with such provider.)
b. Some of these separate agreements may require you to pay fees in addition to the fees that you pay us for the Web Hosting Services.
c. We will strive to let you know when your receipt of Additional Services will require you to enter into a separate agreement, whether with us or with a third-party, and whether such separate agreement will require you to pay additional fees. Additionally, depending on the services you elect to receive, you may be responsible for establishing and maintaining a commercial banking relationship with a financial institution. The terms of any such relationship shall be between you and the financial institution and will not necessarily reflect or incorporate terms of any agreements we may have with the institution.
d. Further, you agree that our third party vendors providing any services as part of the Web Hosting Services, and their successors, are intended third-party beneficiaries under this Agreement and will be entitled to enforce your obligations under this Agreement.
e. Finally, you acknowledge and agree that other Schedules in this Agreement may apply to the various services included in your Web Hosting Services package, and that you have read and you agree to be bound by the additional terms and conditions in those Schedules.
SCHEDULE B TO
GENERAL SERVICE AGREEMENT
In addition to the terms and conditions in the General Service Agreement and other applicable Schedules in the Agreement, the following additional terms and conditions shall apply to any and all purchases of Online Marketing Analytics (as defined below).
1. Description of Service
a. DriveBy may make available for purchase, from time to time, a variety of Online Marketing Analytics in the form of our Online Marketing Analytics package(s), including data analytics of your pay per click search engine advertising, search engine optimization, link building, search submissions, keyword optimization, local, regional and national directory listing and submission, Website and site map analysis, and/or search engine visibility (collectively, "Online Marketing Analytics" or "Services"), as published on the DriveBy Website.
b. Subject to the terms and conditions of this Agreement (which includes this and all other applicable Schedules) and during the term of this Agreement, DriveBy agrees to provide to you the Online Marketing Analytics you purchase during the sign-up process.
c. DriveBy reserves the right to amend its Online Marketing Analytics offerings and to add, delete, suspend or modify the terms and conditions of such Online Marketing Analytics, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
d. In order to use the Services, you must obtain access to the Internet/World Wide Web, either directly or through devices that access Web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet/World Wide Web, including a computer and modem or other access device.
2. Your Obligations.
a. If you provide any information that is untrue, inaccurate, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, DriveBy has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
b. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (for purposes of this Schedule, "Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not DriveBy, are entirely responsible for all Content that you upload, post, email or otherwise transmit by the Online Marketing Analytics.
c. In addition to all other restrictions under this Agreement, you agree to not use the Online Marketing Analytics to upload, download, scrape, post, email or otherwise transmit or receive any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
d. You acknowledge that DriveBy does not pre-screen Content, but that DriveBy and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, DriveBy and its designees shall have the right, but not the obligation, to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by DriveBy or submitted to DriveBy.
e. You understand that the technical processing and transmission of the Online Marketing Analytics, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
f. DriveBy reserves the right to reject any Content for any reason, including those products and/or advertisements deemed to be inappropriate in any way. This includes Content that contains advertisements or links to pornography, violence, vulgar language, dating/personal ad sites, gambling, racial/hate promotion, foreign language, etc.
3. Fees and Payment Terms.
a. Payment for the Online Marketing Analytics selected by you will be on a pre-paid basis, due and payable at the beginning of the term, and will continue billing at the beginning of any and all subsequent terms until such time as you or we terminate the Online Marketing Analytics.
b. For charges generated through the delivery of clicks to your site, you will be charged based on actual clicks and pay all charges in US Dollars. All charges are exclusive of taxes. Charges are solely based on our (or our third party vendors') click measurements.
c. For all pay-per-click or similar Online Marketing Analytics with fees paid in advance based on projected advertising spend and related service and/or management fees, for all amounts not spent on pay-per-click or other advertising and not otherwise allocated towards related service or management fees, such amounts may not rollover or be returned, but instead may be retained by DriveBy.
d. You are responsible for paying all taxes and government charges, and reasonable expenses and attorney fees we incur in any action associated with the collection of service fees.
e. You agree to submit any claims or disputes regarding any charge to your account in writing to us within sixty (60) days of such charge otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge.
f. Any one-time service fees charged to your account and any initial deposit, the value of which will be credited to your account, are non-refundable. When your funds on deposit with us fall below the minimum level for active accounts, defined as 20% of your estimated monthly click charge for the pay-per-click Services, we will automatically bill your credit card, charge card, or debit card on file the amount equal to the minimum monthly amount (defined as your average daily amount multiplied by 30 days).
4. Your License.
a. DriveBy grants you a personal, non-transferable and non-exclusive right and license to use on a single computer the object code of any software provided to you by DriveBy in connection with the Online Marketing Analytics ("Software"); provided that you do not (and do 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, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software.
b. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Online Marketing Analytics.
c. You agree not to access the Online Marketing Analytics by any means other than through the interface that is provided by DriveBy for use in accessing the Online Marketing Analytics.
5. Specific Restrictions.
a. In certain instances involving the Online Marketing Analytics, DriveBy will perform industry research. During these research activities, DriveBy may contact you via email with information that will require a response. Response will be necessary for the project to move forward in a timely manner. In these situations, if a response is not received from the client for more than 20 days, the project is considered "abandoned" and payment is surrendered in full.
b. DriveBy will not conduct any type of intellectual property review or review of any third party rights.
c. You agree it is entirely your responsibility and obligation to conduct an analysis whether any other party may have any type of rights.
d. You agree that you assume all risks for trademark infringement, brand infringement, intellectual property infringement or other claims based on your usage of the Services.
6. Content.
a. Customer takes full responsibility for all content suggested or supplied to DriveBy for inclusion on web document(s), advertisement(s) or any form of media. Customer is held legally liable for the supplied content and all Content used by Customer, including, but not limited to, recommended content and content created by DriveBy for a Customer.
b. Customer agrees to abide by all local, state, national, and international laws including, but not limited to, trademarks, patents and copyrights.
c. You agree to allow DriveBy to perform a complete analysis of your site, including, but not limited to, its code, text and links. You further agree that DriveBy may make adjustments as needed to enable the site, code, text or links to be located by search engines. DriveBy will make an effort to work with you to notify you of any modifications, adjustments or additions that are made to your site during this process.
d. Customers understands and agrees that DriveBy will not conduct any type of intellectual property search, including trademarks or copyrights, as a part of the Services and therefore Customer assumes all risks related to intellectual property infringement or violation of any third party's rights.
7. Refunds, Limitations and Guarantees.
a. Due to the nature of online marketing, DriveBy cannot offer guarantees with its Online Marketing Analytics and, as such, all payments are nonrefundable.
b. The internet is very unpredictable and dynamic. In no event will DriveBy will be liable for any damages, for any cause, arising from provided services, including any lost profit, lost savings, or other incidental or consequential damages, even if another party has advised DriveBy of the possibility of such damages, or for any claim. Additional limitations and disclaimers are set forth in the General Service Agreement.
c. DriveBy may at any time terminate the Online Marketing Analytics or this Agreement. DriveBy will notify Customer by email of any such termination or cancellation which shall be effective immediately.
d. Upon cancellation or termination Customer shall remain liable for any amounts due through the date of such cancellation or termination.
e. Should you desire to cancel Online Marketing Analytics, you must email DriveBy at info@bluedrone.com at least seven (7) business days prior to the renewal of your existing service. E-mail or any other forms of attempted cancellation are not valid. Cancellation of Online Marketing Analytics will occur within 48 hours of receipt of request. Cancellations may be subject to a cancellation fee.
f. Cancellation requests made after renewal of the specific Online Marketing Service(s) will be valid only at the end of the then current 30-day billing cycle, at which time such Online Marketing Service(s) will be canceled. Upon cancellation of your Online Marketing Service(s), DriveBy will not provide any refunds to you.
8. Set-up Fees. There are set-up fees related to the Services that are non-refundable. These and other set-up fees are required as DriveBy often must pay for services, software, hardware or labor up front as soon as a Customer purchases the Services.
9. Additional Fees. Customer agrees that any additional assistance with the Services will be billed by DriveBy to the Customer at the rate of $120/hour. Customer also agrees to pay $120/hour for any changes, modifications, updates, and optimization alterations that exceed the scope of the project.
10. Other.
a. Customer acknowledges and agrees that DriveBy or any of its partners do not perform any type of intellectual property search. Consequently, Customer accepts that it assumes all risk and liability for using recommended keyword phrases that are generated through provided applications or are otherwise recommended by DriveBy.
b. DriveBy is not responsible for any claims by any parties involving Customer's use of recommended keywords that may be in violation of any third party's rights (including intellectual property rights).
c. From time to time, DriveBy may make certain search engine or online directory ranking reports available to a Customer as part of this service. Such reports may contain inaccurate or incomplete information and such reports may also not contain updated information. DriveBy is not responsible for any errors, omissions or other issues that may arise from such reports or the submission of Customer's site to any search engine or directory.
d. If Customer does not want DriveBy to submit the Customer's site for any reason, Customer must notify DriveBy by telephone and email.