These Terms of Service (hereinafter referred to as the "Terms") constitutes a legally binding contract between Solid Cactus Web.com, Inc. ("Solid Cactus") and the person or organization ("Client") identified in a related Solid Cactus E-Commerce Service Agreement (the “Agreement”) between Client and Solid Cactus.
By entering into the Agreement with Solid Cactus for the use of the Solid Cactus eCommerce Platform Services (the "Services") or by otherwise utilizing the Services, Client agrees to the following Terms of Service:
A. Subject to Client's compliance with the Agreement and these Terms, Solid Cactus will provide the Services to Client, subject to the then current terms, conditions and limitations applicable to the Services set forth herein, in the Agreement and on the Solid Cactus website. Client will pay for the Services at the price indicated in the Agreement. Solid Cactus may change the prices for the Services at any time and any such change in prices will be effective thirty (30) days after Solid Cactus posts the change on its website. All fees collected under these Terms are fully earned when due and nonrefundable when paid. All fees due under the Agreement and Terms must be paid in United States dollars via credit card or other payment method acceptable to Solid Cactus. Client agrees to provide its accurate name, mailing address, telephone and other contact information in Client's profile and to update such contact details as they may change.
B. Solid Cactus may make modifications, improvements and/or changes to the Services at any time. A reasonable effort will be made to keep the Services available 24 hours a day, 7 days a week, but Solid Cactus makes no guarantee of the Services’ availability at any certain times or for any certain amount of time. Solid Cactus does not warrant or represent that the use or the results of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable. Solid Cactus does not warrant that the functions contained in the Services will meet Client's requirements, that the operation of the Services will be uninterrupted or error-free, that defects will be corrected, or that the Services or the server that makes it available, are free of viruses or other harmful components. The Services may be subject to interruptions, loss of data, deletion of data and conditions that prevent the proper operation of the Services resulting from conditions of events outside the reasonable control of Solid Cactus and for which Solid Cactus will bear no responsibility.
C. Client acknowledges that Solid Cactus does not guarantee, imply, or predict any type of profit or response from the Services. Client irrevocably covenants, promises and agrees to indemnify Solid Cactus and its assigns and to hold them harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature that they may sustain or to which they may become subject arising out of or relating in any way to the use of the Services, including, without limitation, in each case attorneys' fees, costs and expenses actually incurred in defending against any such claims or enforcing the prerogatives of Solid Cactus under these Terms.
D. All aspects of the Services, such as title, ownership rights, intellectual property rights, and any accompanying documentation are owned by Solid Cactus and are protected by copyright and trademark laws. This License is not a sale of any aspects of the Services, any Software, content, code or any of the relevant documentation. Furthermore, Client will not acquire any rights to Solid Cactus' goodwill, trademark, copyright or other property of Solid Cactus.
A. Solid Cactus hereby grants, and Client hereby accepts, a non-transferable, non-exclusive, non-sublicensable worldwide license, during the Term, to use the Services. Client may not distribute, resell or otherwise provide the Services to any other person or entity. Client further acknowledges and agrees that the Services and any documentation or other information that Client is provided in connection therewith constitutes or contains valuable intellectual property and proprietary and confidential information of Solid Cactus (collectively, "Proprietary Property"), and that Solid Cactus is providing access and use of the Proprietary Property under a duty of Confidentiality. Client agrees not to (i) use or allow others to use the Proprietary Property in any manner not authorized under these Terms, (ii) disclose the Proprietary Property except as authorized under these Terms, (iii) reverse engineer, decompile, disassemble or attempt to obtain the source code for any Proprietary Property, or (iv) use the Proprietary Property to create any product, service or system that competes with the Services, except as expressly provided for in these Terms. Client further agrees to use the Services only for its own internal purposes.
B. Client does not have the right to transfer this license to another party without the specific written permission of Solid Cactus. Client acknowledges that the Services and all related programs, features and/or applications provided by Solid Cactus to Client are NOT to be considered "works made for hire" under the 1976 Copyright Act.
C. Client acknowledges and agrees that Solid Cactus retains all right, title and interest in and to any materials provided to Client by Solid Cactus in conjunction with the Services, and all intellectual property relating to any of the foregoing, including but not limited to, copyrights, patents, and trademarks.
The Services may include any one or more of the following elements, depending upon the package and options selected by Client during the ordering process:
A. Shopping Cart and eCommerce software that facilitates the sale of products by Client to customers on a website controlled by Client;
B. Email marketing tools and services; and
C. Online advertising tools and services.
Certain of these Services may include additional third-party products or services that require Client to accept the terms and conditions of the third party or to pay additional fees to such third party. Client agrees that it is wholly responsible for any such third party terms and conditions and third party fees.
Client may use the Services only in accordance with the Agreement, these Terms, applicable laws in the United States and the applicable laws of any other jurisdiction. Client agrees not to use the Services in any manner that violates the Solid Cactus Acceptable Use Policy as provided to Client or as otherwise posted on the Solid Cactus. Solid Cactus may from time to time change this policy in its sole discretion by either delivering the modified policy to the individual Clients or posting the modified policy on the Solid Cactus website. In addition, Client agrees that it will not use the Services to:
A. Engage in any illegal or tortuous activity;
B. Violate the patent, copyright, trademark, trade secret or other intellectual property rights of any third party;
C. Sell or distribute illegal adult oriented content that features nudity, sexual acts or adult-themed material;
D. Use verbal, physical, written or other abuse (including threats of abuse or retribution) of any Web.com customer, employee, member, or officer will result in immediate account termination; or
E. Publish or distribute in any manner any content that is harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable to Solid Cactus in its sole discretion.
A. Costs and payments for the Services are described in the Agreement. The Services will commence on the Effective Date of the Agreement (the "Effective Date") and will continue on the basis of successive billing periods of 28 days (with the first day of each billing period being a "Billing Date") thereafter until terminated by either party. Solid Cactus will charge Client's credit card on each Billing Date for the billing period beginning on that date for the Shopping Cart Service Fee and following Billing Date for the related Order Service and Support Fee for that billing period. If funds are not available or Solid Cactus otherwise is unable to collect any fees when due, Solid Cactus may continue to submit charges on Client's credit card from time to time until all fees due are paid. Solid Cactus may suspend all or any portion of the Services at any time when fees are due and unpaid. Any fees due under these Terms are net of any sales or use taxes, all of which are the sole responsibility of Client. Unless Client questions the accuracy of any billing via written notification within fifteen (15) days following receipt of said billing, such computation shall be deemed to be accurate and complete for all purposes.
B. Client shall to provide valid credit card information upon the creation of a new account for the use of Services. Client agrees to update this credit card information, as needed, and to allow the use of said credit card for the payment of fees for use of the Services. If Client provides Solid Cactus with a credit card that expires while Solid Cactus is providing the Services to Client, Solid Cactus reserves the right to charge any renewal card issued to Client as a replacement. In the event that Client fails to remit adequate payment for the Services at any time, Solid Cactus will immediately have the right to terminate Client's use of the Services and cease Client's access to the Services. Solid Cactus reserves the right to deactivate accounts and/or access to the Services for failure to pay or refused credit cards. Any outstanding balance becomes immediately due and payable upon termination of Client’s use of the Services for any reason and any collection expenses (including attorneys' fees) incurred by Solid Cactus will be included in the amount owed. Client permanently and irrevocably waives any and all right to enact a ‘chargeback' (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against these payments for any reason whatsoever against Solid Cactus.
A. Client may terminate its license and use of the Services at any time by giving Solid Cactus proper notice as stipulated below in Section 8. Solid Cactus may also terminate Client’s use of the Services at any time by providing notice to Client. Following termination Client will have no right to use or access the Services. In its discretion, Solid Cactus may permit a Client to recover data from the Services following termination after payment of additional fees. Client will be responsible for all final payments due to Solid Cactus up through the date of termination.
B. Any outstanding balance for the use of the Services through the date of termination or any other payment obligations unpaid at such termination will be immediately due and payable upon termination of Client’s use of the Services. Upon termination, Client is to destroy all documentation relating to the Services or return said documentation to Solid Cactus.
A When Client registers with the Services, Client is required to provide contact information (such as name and e-mail address) and financial information (such as credit card numbers). Personal and financial information that is collected is used to check Client's qualifications for registration and to bill Client for use of the Services. Solid Cactus may use this information to (1) check Client's qualifications for registration, (2) bill Client for use of the Services, (3) contact Client when necessary, (4) send Client information about the Services, and (5) send Client promotional materials.
B. During Client's use of the Services, Solid Cactus collects statistical information related to Client's use of the Services. Solid Cactus generally uses this statistical information as necessary to: (1) provide the Services; (2) improve the Services; (3) troubleshoot any Services problems; and (4) market the Services.
C. Clients' information is protected to a certain degree by usernames and passwords, and as such Clients are not to disclose these to unauthorized persons. To further ensure this privacy, the Services are protected by industry standard security technology, such as firewalls and security analyzers using SSL encryption to protect transmission of data.
D. Solid Cactus will not rent, sell or otherwise disclose any personal information about Client to any third parties unless it is expressly authorized by Client or Solid Cactus has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of Solid Cactus; (3) enforce this Policy; (4) improve the Services; or (5) troubleshoot any Services problems.
E. Solid Cactus will not rent, sell or otherwise disclose the individual statistical information compiled with regards to a Client's use of the Services to any third parties unless it is expressly authorized by Client or Solid Cactus has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of Solid Cactus; (3) enforce this Policy; (4) improve the Services; or (5) troubleshoot any Services problems.
F. Solid Cactus may, at its discretion, disclose the statistical information compiled with regards to a Client's use of the Services to third parties provided that such information is disclosed in a blind and/or aggregate form, and in no event will Solid Cactus disclose statistics of an individual Client without Client's express written permission. Solid Cactus may also provide traffic information in aggregate form to third parties; however, Solid Cactus will not disclose statistics of an individual Client without Client's express written permission.
Solid Cactus may give notice to Client of any matter related to Client’s use of the Services and these Terms (a) orally, by calling Client's representative or by leaving a voicemail for Client's representative at the telephone number in Client's profile, (b) by email to the email address provided by Client in Client's profile, or (c) by regular mail to Client's mailing address in Client's profile. Client may give notice to Solid Cactus by certified mail to the following address:
Solid Cactus Web.com, Inc.
106 South Lehigh Street
Shavertown, PA 18708
Attn: Legal Department
However, Client is to give notice of termination of the Services to Solid Cactus by calling Solid Cactus at either 570-970-4389 or 888-722-7523 between 9am to 5pm EST.
A. Client hereby agrees to indemnify, defend, and hold harmless Solid Cactus against, and agree to pay and hold harmless Solid Cactus for all liabilities, obligations, losses, damages, penalties, claims, actions, suits, judgments, settlements, out-of-pocket costs, expenses and disbursements (including reasonable costs of investigation, and reasonable attorneys, accountants and expert witness fees), of whatsoever kind and nature that are imposed on or incurred by Solid Cactus as a consequence of or in connection with (i) any breach by Client of these Terms, (ii) any failure by Client to perform in accordance with these Terms, or (iii) any use of the Services by Client.
B. Solid Cactus agrees to (i) notify Client in writing promptly after the Solid Cactus becomes aware of such claim, (ii) give Client sole control of the settlement, compromise, negotiation, and defense of any such action (provided that Client may not agree to any settlement that involves injunctive or equitable relief affecting the Solid Cactus or admission of liability by the Solid Cactus without obtaining the Solid Cactus's prior written consent), and (iii) cooperate reasonably and in good faith in the defense of any such legal action. In connection with any such third party claim, Solid Cactus may, at its election and expense, have the right to participate in the defense of such claim. Additionally, Client agrees to give prompt written notice to Solid Cactus upon the receipt of notice of any claim by a third party against Client which might give rise to a claim against Solid Cactus stating the nature and the basis of such claim and, if ascertainable, the amount thereof.
A. THE SERVICES ARE HEREBY PROVIDED TO CLIENT ON AN "AS IS" BASIS. NO REPRESENTATION OR WARRANTY MADE UNDER THE AGREEMENT OR THESE TERMS APPLIES TO THE EFFECT OF ANY CONDITION OUTSIDE THE REASONABLE CONTROL OF SOLID CACTUS, INCLUDING BUT NOT LIMITED TO, WITHOUT LIMITATION, ANY (I) FAILURE IN TELECOMMUNICATIONS, (II) FAILURE BY CLIENT TO COMPLY WITH THESE TERMS, OR (III) CONDITION IN, OR COMBINATION OF ANY SERVICE, SOFTWARE, HARDWARE, SYSTEM, EQUIPMENT, PROCESS, METHOD, DATA OR INFORMATION USED OR PROVIDED BY SOLID CACTUS OR ANY THIRD PARTY.
B. THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SOLID CACTUS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. SOLID CACTUS DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT'S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATIONS OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THE AGREEMENT AND THESE TERMS AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES.
C. SOLID CACTUS WILL NOT BE LIABLE TO CLIENT OR ANY THIRD-PARTY CLAIMANT FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SOLID CACTUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THESE TERMS, AND ABSENT SUCH LIMITATIONS, SOLID CACTUS WOULD NOT PROVIDE THE SERVICES TO CLIENT.
If the above limitations are excluded or invalidated for any reason, Solid Cactus' cumulative liability to Client or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to Client’s use of the Services shall not exceed the fees paid by Client to Solid Cactus for use of the Services during the three (3) month period before the date of the event giving rise to the liability.
Solid Cactus reserves the right to change these Terms at any time and to notify Client by posting an updated version of the terms and conditions on the Solid Cactus website. Client is responsible for regularly reviewing the terms and conditions related to the Services. Continued use of the Services after any such changes shall constitute Client's consent to such changes. Otherwise, these Terms may not be amended except by an instrument signed in writing on behalf of each of the parties hereto. Any purported oral modification or amendment of these Terms in derogation of the foregoing shall be without any effect. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
The Section headings of these Terms are intended for reference and may not by themselves determine the construction or interpretation of the Agreement. They are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of these Terms. In all references herein to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender and number as the text of these Terms may require. Wherever used herein, the singular shall include the plural, the plural shall include the singular, and pronouns shall be read as masculine, feminine or neutral as the context requires.
The waiver of any breach of any provision of these Terms will not operate or be construed as a waiver of any subsequent breach of the same or other provision of these Terms. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
Except as otherwise stipulated herein, the Agreement and these Terms represent the entire understanding among the parties with respect to the subject matter hereunder, and as such the Agreement and these Terms supersede any and all prior understandings, agreements, or obligations. If there is any conflict between the Agreement and these Terms, the terms and conditions of the Agreement control.
Client shall not have the right to assign their respective rights and obligations arising under these Terms without the written consent of Solid Cactus. Any attempt by Client to assign their respective rights and obligations arising under these Terms, without the written consent of Solid Cactus shall be null and void.
These Terms shall be governed by the laws of the State of Florida, without giving effect to principles of conflict of laws. Client agrees that any judicial proceeding for the breach of or enforcement at law or equity of these Terms or any provision hereof shall be instituted only in a federal or state court of competent jurisdiction in the city of Jacksonville and the State of Florida, and Client consents to the jurisdiction of such court, and waives the right to challenge the jurisdiction of such court on grounds of lack of personal jurisdiction or to seek a change of venue.
Client warrants that Client is not, nor is Client acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”). In addition, Client is not, nor is Client acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time. In addition to all other rights and remedies available to Company under this Agreement, and at law and in equity, Client’s breach of this section shall result in immediate termination of the Agreement and forfeiture of any and all Services or amounts previously provided, paid and/or owed to Client under this Agreement.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Services or these Terms.
ANY QUESTIONS CONCERNING THE SERVICES AND/OR THESE TERMS SHOULD BE REFERRED TO SOLID CACTUS AT THE FOLLOWING ADDRESS:
Solid Cactus Web.com, Inc.,
106 South Lehigh Street,
Shavertown, PA 18708.