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Terms of Service

Solid Cactus Terms and Conditions - v090412

1. GENERAL.

THE FOLLOWING ARE THE TERMS AND CONDITIONS FOR THE USE OF THE SERVICES AND ALL RELATED SOFTWARE, PROGRAMS, FEATURES, AND/OR APPLICATIONS (HEREINAFTER TO BE REFERRED TO AS THE "SERVICES") TO BE PROVIDED TO YOU ("CLIENT") BY WEB.COM GROUP, INC. AND/OR ANY SUBSIDIARY THEREOF ("WEB.COM" AND/OR "SOLID CACTUS") AND FURTHER IDENTIFIED IN AN ORDER FORM TO BE EXECUTED, DIGITALLY OR OTHERWISE BY CLIENT (THE "ORDER FORM"). (THE TERMS AND CONDITIONS, ORDER FORM AND SERVICE DESCRIPTIONS REFERENCED HEREIN ARE HEREBY REFERRED TO COLLECTIVELY AS THE "TERMS AND CONDITIONS" AND/OR THE "AGREEMENT").

CLIENT MUST CAREFULLY READ ALL OF THE TERMS AND CONDITIONS BEFORE CONSENTING TO SUCH TERMS BY EXECUTING THE ORDER FORM. BY EXECUTING THE ORDER FORM, CLIENT IS STATING THAT THEY HAVE THE AUTHORITY TO DO SO AND THAT CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS.

2. SERVICES.

  1. The Services to be provided to Client are to be in support of Client's website (the "Website") and/or other business interests and are to be described or addressed further in the Order Form, whereby any relevant Service Descriptions contained or otherwise referenced therein are to be incorporated herein by reference.
  2. Both parties acknowledge and agree that nothing contained herein shall be construed to create a relationship of principal and agent or employer and employee between Client and Solid Cactus.
  3. Client is responsible for procuring hosting for the Website, and Solid Cactus will have no responsibility to provide hosting for the Website unless expressly stated otherwise in the Order Form. Except as otherwise expressly provided for herein, for any web hosting services to be provided by Solid Cactus in accordance with the Order Form, the terms located at http://www.networksolutions.com/legal/static-service-agreement.jsp shall apply to the extent such terms are applicable to web hosting services.
  4. For all domain name services to be provided by Solid Cactus hereunder and as outlined in the Order Form, the terms located at http://www.networksolutions.com/legal/static-service-agreement.jsp shall apply to the extent such terms are applicable to domain name services.
  5. During the Term of this Agreement, Client will provide Solid Cactus with unrestricted access to the Website as reasonably necessary for Solid Cactus to provide the Services hereunder.
  6. Client agrees to cooperate fully with Solid Cactus as needed to allow Solid Cactus to provide the Services hereunder and Client will further provide all information, input and feedback requested by Solid Cactus in the process of providing the Services. If Client ignores any such requests or otherwise fails to provide the requested information, input or feedback within a reasonable amount of time (whereby such reasonable amount of time is to be determined by Solid Cactus) Solid Cactus shall then have right to make any related decisions with respect to the Services on Client's behalf.
  7. Client acknowledges and agrees that populating the Website and/or the relevant Website databases with product information or other content is not included in any way whatsoever in the Services to be provided to Client by Solid Cactus unless expressly provided for in the Order Form. Client further acknowledges and agrees that unless otherwise expressly provided for in the Order Form, Solid Cactus is not to provide any database maintenance, database management or any data or website back-ups of any kind, and Solid Cactus will not be responsible for any loss of such databases or data, and that it is Client's sole responsibility to save and/or back-up Client's Website and all related databases and data. Client should be able to provide access to regular back-ups in the event a restore or rollback is required. If Solid Cactus is expressly to provide any website back-ups per the Order Form, such back-ups are to be on the stipulated back-up schedule and Solid Cactus has no responsibility to back-up the Website, data, information and/or content placed on the Website in between website back-ups.
  8. As a part of the Services, Solid Cactus may provide Client with access to third party functionality or services, including, but not limited to applications, widgets, RSS and other types of news, event and industry feeds, calculators, recommended copy, forms and templates that are incorporated or offered as a part of one or more of the Services ("Third Party Functionality"). Client expressly agrees that any Third Party Functionality that is available to Client as a part of any of the Services shall be used by Client in accordance with the terms of any relevant third party licenses. Client's failure to abide by any third party license may result in the immediate termination of Client's services by Solid Cactus. Furthermore, Solid Cactus does not control such Third Party Functionality and is therefore not liable for any issues of any kind relating to the Third Party Functionality. Solid Cactus reserves the right, at its sole discretion, to terminate, suspend, cancel or alter Client's access to Third Party Functionality at any time.
  9. Solid Cactus, in its best judgment, will only accept and manage those accounts and/or campaigns that represent honest and ethical activity on the part of Client. If at any time Solid Cactus, in its sole discretion, determines that Client is engaging in illegal or unethical activity, Solid Cactus will immediately cease providing the Services to Client and Client will immediately owe payment to Solid Cactus for any and all outstanding charges.
  10. If the Services to be provided to Client hereunder involve any Website development and/or design product or services of any kind, the following additional terms apply:
    1. Client acknowledges and agrees that the Services to be provided to Client by Solid Cactus support various web browsers and the standard for performance will be based on Internet Explorer 8.0. As such, this browser will display the Website in a manner that reasonably matches Client's approved mock-ups. Solid Cactus will use its reasonable best efforts to ensure the Services support other browsers such as Firefox 5.0 and Safari 5.0, however these other browsers may display text, font size, positioning, space differently and 100% compatibility among these browsers is not guaranteed. Additionally, Solid Cactus makes no claims or representations as to any other browser's performance with respect to the Services to be provided hereunder.
    2. Client acknowledges and agrees that if the Services to be provided to Client by Solid Cactus hereunder involve the redesigning of an existing website, the existing functionality on the old website will not be carried over to the new website unless specifically stipulated above in the related Service Description in the Order Form.
    3. If the Services involve the designing and/or developing of the Website for use on the Solid Cactus eCommerce platform (the "Platform"), the Website is to be hosted on the Platform in accordance with the Service Description in the Order Form and further in accordance with the Terms of Service related to the Platform and related hosting found online at http://terms.solidcactus.com (the "Platform Terms"). Client hereby accepts and agrees to be bound to the Platform Terms. The Website as it is being designed and developed for use on the Platform and will not be compatible on any other online platform or online service.
    4. Client will be given access to relevant pre-recorded training videos and product documentation in instances where Solid Cactus has such videos and documentation available. Solid Cactus shall also provide additional training and/or support as expressly stipulated above in the Service Descriptions. If it is not expressly provided for above, additional training and/or support is not to be provided to Client hereunder unless Client purchases additional training and/or support from Solid Cactus at Solid Cactus' then current rates.
    5. For Yahoo! Store development, if Client has an existing Yahoo! Store, Solid Cactus may be designing new templates for page display in conjunction with the development of the Website under the Agreement. If that is the case, Client may have 5000 pages converted to the new Solid Cactus templates at no cost. Client agrees to pay $50 per every additional 1000 pages to be converted, whereby such cost is not to be pro-rated if the amount of pages to be converted is below 1000.
    6. For all design Services to be provided hereunder, Client will receive one (1) design concept and five (5) revisions per concept. If necessary, Client may purchase additional concepts and revisions at Web.com's then-current rates. For the purposes of this Order Form a new concept will entail an entirely different look to the related page, while a revision involves minor formatting changes to the page. Additionally, unless otherwise expressly stated above, Web.com will provide no customization of any template to be provided to Client or to which Client is otherwise granted access to hereunder.
  11. If the Services to be provided to Client involve any Solid Cactus internet marketing services (including but not limited to email marketing services), the following additional terms apply:
    1. Client acknowledges and agrees that Client is to obey all applicable laws, such as the CAN-SPAM Act of 2003, with regards to Client's use of the Services. Client acknowledges and agrees that Client will only use the e-mail marketing service to send emails to customers and prospects that have directly consented to receive email from them (the "opt-in method"). Client is prohibited from transmitting unsolicited commercial email ("Spam") via the Services. Client agrees not to use the Services to send Spam or any other type of unsolicited email. For any list of email addresses provided by the Client hereunder, Client agrees to provide Solid Cactus with the source of the email addresses, the method used to capture the data, and verification of the consent to receive emails from any such customer or prospect. Client certifies that Client will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than the opt-in method. Both parties acknowledge and agree that Client will be solely and completely responsible for any of these aforementioned acts committed by Client in relation to Client's use of the Services.
    2. Client acknowledges and agrees that Solid Cactus will not be responsible for any consequences related to the alteration, modification and/or interference by Client of the accounts and/or campaigns managed by Solid Cactus hereunder.
    3. Client acknowledges and agrees that any kind of marketing can be unpredictable and the results can be very difficult to measure, and that Solid Cactus makes no representations and/or guarantees of any kind as to the actual additional revenue to be generated through Client's use of the Services hereunder. Client further acknowledges and agrees that all fees to be paid to Solid Cactus under this Agreement are non-refundable.

3. COMPENSATION.

  1. Costs and payments for the Services are to be described in the Order Form. All Set-up fees are due in full, in advance, and at the start of the project unless otherwise stipulated herein. Upon receipt of the signed Agreement, Client's credit card (or other payment method agreed upon between the Parties) will be charged for any initial deposit and/or set-up fees. If a "Pay in Full" option is indicated, Client will be charged accordingly. Additional One-Time fees may be incurred if client requests additional One-Time services (such as any ala carte options that may be listed above) from Solid Cactus. All such additional One-Time fees will be paid by Client in full before those related services are provided. Where stipulated above, Client may be provided certain features, products, applications and/or programs for an additional monthly fee. Such monthly fees are to be paid by Client in advance for the upcoming month's service, unless stated otherwise in the Agreement.
  2. Client authorizes Solid Cactus to charge the credit card used on the Order Form for all subsequent and recurring billing with regards to the Services, unless Client provides an alternate credit card prior to the due date for such billing or unless Solid Cactus accepts, in writing, an alternate payment method for Client (i.e. a check or money order). If Client pays for the Services by credit card or charge card, Client permanently and irrevocably waives any and all right to enact a ‘chargeback' (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against these payments for any reason whatsoever against Solid Cactus.
  3. Client shall pay all invoices from Solid Cactus in accordance with their terms and by all stipulated due dates. Unless Client questions the accuracy of any invoice via written notification within fifteen (15) days following receipt of said invoice, such computation shall be deemed to be accurate and complete for all purposes. However, Client will pay the amount of the invoice in full and promptly notify Solid Cactus in writing detailing the alleged billing error. In the event the billing error is verified by Solid Cactus, Solid Cactus shall promptly credit the appropriate amount to Client.
  4. Additionally, where necessary, Client will pay all additional expenses related to Solid Cactus providing the Services to Client, pursuant to Client's prior written approval. Such expenses may include but are not limited to image fees, domain name registration, site submission fees, software technical support, express delivery fees, host service provider fees, filing fees, third party service charges, and third party software license fees.
  5. In the event that Client fails to remit payment for the Services at any time, Client will be considered to be in default and Solid Cactus will immediately have the right to terminate this Agreement, terminate Client's use of the Services, cease Client's access to the Services and revoke all rights conveyed to Client under this Agreement. Upon failure to remit payment hereunder, any amount still due shall bear interest at the lesser of the rate of 1.5% per month or the maximum rate allowed by law. Client will also pay all costs of collection, including reasonable attorney's fees, for the collection of any amount due upon failure to remit payment hereunder.
  6. Any outstanding balance becomes immediately due and payable upon termination of this Agreement. In the event that the Total Due to Solid Cactus under the Service Agreement is to be paid in monthly installments, upon failure to cure default, all monthly payments, regardless of due date, will become immediately due in full. In the event of failure to cure default, Client will be obligated to return all Solid Cactus materials immediately to Solid Cactus.
  7. If the Services involve the designing and/or developing of the Website for use on the Platform, costs related to the Platform and Hosting are described above and addressed further in the Platform Terms.
  8. Client may be required to submit a credit application or be subject to a credit check prior to the providing of any Services hereunder. Based on the results of said credit application or credit check, Solid Cactus may refuse to provide Services to Client and may immediately terminate this Agreement.
  9. If the Services to be provided to Client involve any Solid Cactus internet marketing services (including but not limited to email marketing services), the following additional terms apply:
    1. Any recurring, ongoing and/or management fees owed by Client to Solid Cactus hereunder are to be invoiced to Client on an ongoing basis during the Term of this Agreement. During the Term of the Agreement it may be determined at Solid Cactus' sole discretion that Client shall be required to remit payment in advance to Solid Cactus for the related recurring fees, advertising budgets and/or management fees. In order to bill these fees in advance Solid Cactus will, in its sole discretion, estimate the fees and Client will be required to remit payment thereof prior to Solid Cactus providing the Services. If said estimates exceed the actual amount owed during the billing period or once the related billing period ends, Solid Cactus will apply the difference to the following billing period, and if said estimates fall short of the actual amount owed, Client will be billed for the difference which will be immediately owed to Solid Cactus. In such case as estimates fall short of the actual amount owed, Solid Cactus may cease providing the Services until the difference is paid by Client.
    2. For Solid Cactus' Pay-Per-Click Services, Solid Cactus will bill Client for the related search engine advertising fees ("PPC Advertising Budget" and/or "Client Spend") and Solid Cactus management fees ("PPC Management Fee"). During the Term of the Agreement it may be determined at Solid Cactus' sole discretion that Client be required remit the PPC Advertising Budget directly to the related search engines. In that case, those paid search engine accounts are to be set up independently by Client. Solid Cactus will provide reasonable guidance to Client in the related account set up processes. Once these accounts are established, Client will pay all associated fees directly to the respective third parties.
    3. Other third party accounts related to the Services to be provided to Client by Solid Cactus hereunder, such as Client's PR Newswire account, Commission Junction or similar eCommerce affiliate networks account, are to be set up independently by Client. Solid Cactus will provide reasonable guidance to Client in the related account set up processes. Once these accounts are established, Client will pay all associated fees directly to the respective third parties.

4. TERM AND TERMINATION.

  1. Unless stipulated otherwise in the Order Form, the Terms and Conditions are effective from the date of the submission of the Order Form and shall be in effect until the Services and/or project is completed and Client has paid in full in accordance with the Order Form, or in the case of recurring monthly services this Agreement shall be in effect until terminated further in accordance with this Section 4. However, Solid Cactus may terminate this Agreement immediately, upon notice to Client, if in Solid Cactus' reasonable estimation, Client's continued use of the Services poses any risk to Solid Cactus, its business, interests, customers, partners or affiliates.
  2. If the Services are to include any continuing features, applications and/or templates provided to Client subject to an additional monthly fee which is not included in the Total Due above (the "Special Features"), once the non-continuing services are completed, leaving only the Special Features to be provided, this Agreement may be terminated by either Party in writing upon thirty (30) days written notice to the other Party. Payment in full for all services performed prior to termination will be required within ten (10) days of termination. However, Solid Cactus may terminate this Agreement and access to the Special Features immediately, upon notice to Client, if in Solid Cactus' reasonable estimation, Client's continued use of the Services and/or Special Features pose any risk to Solid Cactus, its business, interests, customers, partners or affiliates. If applicable, the use of the Platform and related hosting may be otherwise terminated by either Solid Cactus or Client in accordance with the Platform Terms.
  3. If this Agreement stipulates a total amount to be paid to Solid Cactus by Client for the completion of a Website design and/or development project and Solid Cactus terminates this Agreement before the project is completed pursuant to Paragraph 4(A) above, provided Client is not in default of any part of this Agreement, Client shall be entitled to reimbursement of fees paid to Solid Cactus hereunder minus any amounts owed to Solid Cactus for all work performed by Solid Cactus prior to termination and Client will thereby relinquish any and all rights granted hereunder.
  4. If this Agreement stipulates a total amount to be paid to Solid Cactus by Client for the completion of a Website design and/or development project, Client may not cancel this Agreement prior to the completion of said project. However, shall Client attempt to terminate this Agreement before said project is completed and Solid Cactus, at its sole discretion, agrees to such termination, Client will at a minimum owe Solid Cactus for all work provided up through termination as well as an additional Ten Percent (10%) administration fee to be added to the amount owed to Solid Cactus as liquidated damages. Furthermore, if Client terminates this Agreement as described in this Section, Client will not be entitled to an actual refund of any funds submitted to Solid Cactus or a waiver of fees to be owed to Solid Cactus hereunder, however Solid Cactus, at its sole discretion, may provide an in-house credit to Client for use towards additional Solid Cactus services.

5. REPRESENTATIONS & WARRANTIES.

Client warrants and represents as follows:

  1. To Client's knowledge, there is no action, proceeding, or investigation pending or threatened which questions, directly or indirectly, the validity or enforceability of this Agreement.
  2. Neither the execution of this Agreement nor the consummation by Client of the transactions contemplated by this Agreement will (a) conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default, or result in a termination of, any agreement or instrument to which the Client is a party, (b) violate any restriction to which Client is subject, or (c) constitute a violation of any applicable laws.
  3. Client has taken all actions required by applicable law, and have obtained all consents which are necessary to authorize or enable them to execute and deliver this Agreement and to consummate the transactions contemplated in this Agreement. The individual(s) executing this Agreement on behalf of Client has been duly authorized and are empowered to bind Client to this Agreement.
  4. Client shall use the Services or otherwise act in complete accordance with the Solid Cactus Acceptable Use Policy [LINK].Client further acknowledges and agrees that Client is also to obey all Copyright laws, as well as all intellectual property and other applicable laws, such as the CAN-SPAM Act of 2003, in conjunction with this Agreement and/or the Services. Client also agrees that Client will not violate another party's intellectual property rights in conjunction with this Agreement and/or the Services. Both Parties acknowledge and agree that Solid Cactus will not be responsible in any manner whatsoever if Client violates any such laws or rights or if Client improperly provides or uses another party's property in conjunction with this Agreement and/or Services.

6. LICENSE; PROPRIETARY RESTRICTIONS.

  1. If the Services are to include any Website development and/or design of any kind, upon completion of the Services and payment in full of the Total Due stipulated in the Order Form, Client shall be considered the exclusive owner of all intellectual property rights, including but not limited to federal copyrights, in the final published Website designed and/or developed by Solid Cactus hereunder, including but not limited to, all related text, artwork, graphics, pictures, photos, images and other such materials, but excluding the following: (i) any and all stock photography provided to Client by Solid Cactus and used in the design and/or development of the Website (the "Stock Photography"); (ii) any and all source code developed, written, compiled and/or otherwise acquired by Solid Cactus and used by Solid Cactus in the design, development and/or operation of the Website and/or in conjunction with any and all features, programs, and applications Solid Cactus provides to Client hereunder (the "Source Code"), whereby the Source Code shall remain the exclusive property of Solid Cactus; and (iii) any and all uncompiled and/or layered files used in the development of the Website, which shall also remain the exclusive property of Solid Cactus. Additionally, for any templates provided to Client or to which Client is given access to hereunder, aside from the license referenced in this Section, Client will receive no proprietary rights whatsoever, either in copyright or otherwise, in and to any of those templates. Moreover, Client will receive no proprietary rights in and to the Platform whatsoever.
  2. Provided Client is not in default of this Agreement, Client is granted and accepts a license to use the Source Code referenced above. Additionally, provided Client is not in default of the Agreement, Client is granted permission to use the Stock Photography in the manner in which it is provided to Client by Solid Cactus (i.e. embedded in the Website) and no other use of the Stock Photography is permitted whatsoever. Furthermore, during the Term of this Agreement, provided Client is not in default of the Agreement and provided Client continues to pay the associated monthly fees to Solid Cactus, Client is granted and accepts a license for the use of the continuing features and/or applications provided to Client subject to an additional monthly fee (the "Special Features"), as well as the Source Code related to those Special Features, if any.
  3. All licenses referenced in this Section are to be royalty free, worldwide, perpetual, nonexclusive, nonsublicensable and nontransferable, except that said licenses shall be transferable only together with a sale or other transfer of ownership of the Website. Client may not alter, modify, distribute, resell or otherwise provide the Source Code, Special Features and/or Stock Photography to any other person or entity, or license the same, except pursuant to a sale or other transfer of ownership of the Website as stipulated above in this Section. Client further acknowledges and agrees that the Source Code, Special Features (and related Source Code) and any documentation or other information that Client is provided in connection therewith constitutes and/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 this Agreement, (ii) disclose the Proprietary Property except as authorized under this Agreement, (iii) reverse engineer, decompile, alter, modify and/or disassemble the Proprietary Property, or (iv) use the Proprietary Property to create any product, service or system that competes with any Solid Cactus services. However, Client and persons or entities directed by Client are permitted to modify the Source Code that is hosted by Client as needed in order to allow Client to update, repair and otherwise operate the Website, whereas any and all such modified Source Code is to be considered Source Code under this Agreement. Client acknowledges and agrees that Solid Cactus is not responsible in any manner whatsoever for any issues or problems that arise with respect to the Website (or any portion thereof) due to the modification of any Source Code by Client or any third party.

7. INTELLECTUAL PROPERTY.

  1. Except as otherwise provided for in the Agreement, Client acknowledges and agrees that no aspects of the Services are to be considered "works made for hire" under the Copyright Act. Additionally, except as otherwise provided for herein, Solid Cactus will retain all right, title and interest in and to any materials provided to Client by Solid Cactus, and all intellectual property relating to any of the foregoing, including but not limited to, copyrights, patents and trademarks.
  2. Client acknowledges and agrees that Client is to obey all intellectual property laws and that Client is not to violate any other party's intellectual property rights in conjunction with this Agreement.
  3. Client will not acquire any rights to Solid Cactus' goodwill, trademark, copyright or other property of Solid Cactus. All Solid Cactus data and trade secrets shall be the sole possession of Solid Cactus and Client shall have no right to them.
  4. Both Parties acknowledge and agree that Solid Cactus will have the right to use Client's name, description, logo, URL, and website screen shots in Solid Cactus' advertising and/or promotional materials upon the prior consent of Client.

8. CONFIDENTIALITY.

  1. Client will protect the confidential information of Solid Cactus disclosed hereunder ("Confidential Information") from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. Under this Agreement, Confidential Information will mean any information that is either designated as confidential by Solid Cactus or that, under the circumstances surrounding the disclosure, is reasonably understood to be confidential.
  2. Without limiting the foregoing, the Client will: (i) use Confidential Information solely for the purposes for which it has been disclosed; and (ii) disclose Confidential Information only to those of its employees, agents, consultants and others who have a need to know the same for the purpose of performing this Agreement and who are informed of and agree to a duty of nondisclosure.
  3. The obligations of Client regarding the Confidential Information of Solid Cactus shall not apply to any material or information that (i) is known to Client at the time of the disclosure, as evidenced by written records of Client; (ii) has become publicly known and made generally available through no wrongful act of Client; (iii) has rightfully been received by Client from a third party who is authorized by Solid Cactus to make such disclosures; (iv) was independently developed by Client without any use of the Confidential Information of Solid Cactus, as demonstrated by files created at the time of such independent development; or (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Client shall provide prompt notice of such court order or requirement to Solid Cactus to enable Solid Cactus to seek a protective order or otherwise prevent or restrict such disclosure.
  4. Upon request of Solid Cactus, or in any event upon any termination or expiration of the Term, within a reasonable period of time in a manner agreed upon by the Parties, Client will return to Solid Cactus all Confidential Information of Solid Cactus.

9. FORCE MAJEURE.

Neither Party is responsible for any failure to perform its obligation under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. The forgoing does not excuse nonpayment for Services already provided. The Party facing an event of force majeure will use commercially reasonable efforts to remedy a failure caused by such event.

10. INDEMNIFICATION.

  1. Client hereby agrees to indemnify, defend, and hold harmless Solid Cactus against, and agrees 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 of this Agreement by Client, (ii) any warranties or representations by Client that prove to be untrue, or (iii) any failure by Client to perform in accordance with this Agreement.
  2. Solid Cactus agrees to (i) notify Client in writing promptly after 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 Solid Cactus or admission of liability by Solid Cactus without obtaining Solid Cactus's prior 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 third party claim.
  3. 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.

11. EXCLUSIONS; LIMITATIONS ON LIABILITY.

  1. SOLID CACTUS WILL ATTEMPT TO MEET AND ADHERE TO ALL AGREED UPON PROTECT DEADLINES AND SCHEDULES IDENTIFIED HEREUNDER. SOLID CACTUS WILL NOT BE HELD RESPONSIBLE FOR CAUSES OF DELAY OUTSIDE OF SOLID CACTUS' CONTROL OR FOR ANY REASONABLE DELAYS THAT MAY OCCUR WHILE PROVIDING THE SERVICE TO CLIENT HEREUNDER.
  2. NO REPRESENTATION OR WARRANTY MADE UNDER THIS AGREEMENT (OR IN ANY AGREEMENT OR TERMS LINKED HEREFROM) APPLIES TO THE EFFECT OF ANY CONDITION OUTSIDE THE REASONABLE CONTROL OF SOLID CACTUS, INCLUDING WITHOUT LIMITATION ANY (I) FAILURE IN TELECOMMUNICATIONS, (II) FAILURE BY CLIENT TO COMPLY WITH THIS AGREEMENT, OR (III) CONDITION IN, OR COMBINATION OF ANY SERVICE, SOFTWARE, HARDWARE, SYSTEM, EQUIPMENT, PROCESS, DATA OR INFORMATION USED OR PROVIDED BY ANY THIRD PARTY.
  3. CLIENT HAS NOT AND DOES NOT RECEIVE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING FROM COURSE OF DEALING OR PERFORMANCE, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY OF SERVICE OR DATA, ERROR-FREE PERFORMANCE OF SERVICE OR DATA, NONINFRINGEMENT OR NONINTERFERENCE WITH DATA.
  4. UNDER NO CIRCUMSTANCES MAY CLIENT RECOVER DAMAGES UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES, ARISING FROM ANY SOURCE, EVEN IF THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT'S TOTAL CUMULATIVE RECOVERY OF DAMAGES UNDER THIS AGREEMENT MAY NOT EXCEED THE FEES PAID BY CLIENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
  5. MOROEVER, FOR ALL SERVICES AND/OR SOFTWARE ACCESSED BY CLIENT VIA THE INTERNET, SUBJECT TO CLIENT'S COMPLIANCE WITH THIS AGREEMENT, THE SERVICES WILL BE PROVIDED IN ACCORDANCE WITH SOLID CACTUS' THEN CURRENT SPECIFICATIONS. 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, OR OTHERWISE IN LINE WITH ANY STATED SERVICE LEVEL, BUT SOLID CACTUS MAKES NO GUARANTEE OF THE SERVICE'S AVAILABILITY AT ANY CERTAIN TIMES OR FOR ANY CERTAIN AMOUNT OF TIME, AND FURTHER RESERVES THE RIGHT TO CONDUCT MAINTANANCE ON SUCH SERVICES AS NEEDED AND THAT SUCH MAINTANANCE MAY CAUSE INTERRUPTIONS IN THE SERVICES. SOLID CACTUS DOES NOT WATTANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CLIENT'S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERUPTED 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. 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. CLIENT SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SOLID CACTUS SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO CLIENT DATA BY OTHER PARTIES.

12. NOTICE.

  1. Notice to Customer hereunder shall be deemed effective when (i) sent via e-mail to the last known Customer contact e-mail address; (ii) sent via fax, to the last known Customer fax number; (iii) sent by certified mail, return receipt requested, or by Federal Express or other recognized overnight delivery service to the last known Customer mailing address or (iv) posted on www.solidcactus.com and/or any of the applicable pages linked thereto, as updated from time to time.
  2. All mail notices shall be effective upon receipt, email and fax notices shall be effective upon transmission and all Website notices shall be immediately effective upon posting on www.solidcactus.com and/or any of the applicable pages linked thereto.
  3. By providing such contact information to Solid Cactus, you agree that Solid Cactus may use the information you have provided to contact you via email, postal mail, telephone or fax in any format or manner. Solid Cactus may, but shall have no obligation to, send a single notice by various means of delivery (i.e., fax, email, certified mail or express mail). In no event shall Solid Cactus be liable to you for choosing to send notice to one address, or by one means of delivery, and not others.
  4. All notices to be provided to Solid Cactus under this Agreement must be in writing and must be given either by (a) first class mail, certified or registered with return receipt requested or (b) Federal Express or such other nationally-recognized overnight courier, provided that the recipient is required to sign for such notice, and will be deemed to have been duly given upon receipt, or by (c) facsimile with subsequent confirmation. All such notices will be sent to the address as listed above. Solid Cactus may change such address by notice duly given pursuant to this Section. All notices will be sent to Solid Cactus at the following address:
    Solid Cactus
    106 South Lehigh Street
    Shavertown, PA 18708
    Attn: Legal Department

13. ENTIRE AGREEMENT.

This Agreement (including the Order Form, the Platform Terms, and other terms linked herefrom, where applicable) represents the entire understanding among the Parties with respect to the subject matter of this Agreement, and as such this Agreement supersedes any and all prior understandings, agreements, or obligations. 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. This Agreement may not be amended or modified except by an instrument signed in writing on behalf of each of the Parties hereto.

14. HEADINGS AND INTERPRETATION.

The Section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. Also, 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 this Agreement may require.

15. WAIVER AND SEPARABILITY.

The waiver of any breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of the same or other provision of this Agreement. If any portion of this Agreement is determined to be invalid or unenforceable, that portion of this Agreement will be adjusted, rather than voided, to achieve the intent of the Parties under this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

16. ASSIGNMENT.

Neither Party may assign this Agreement (by operation of law or otherwise) or delegate any of its duties under this Agreement without the prior written consent of the other Party, and any prohibited assignment, sublicense or delegation will be null and void. Notwithstanding the prior sentence, Solid Cactus may assign (in connection with a complete assumption of this Agreement) this Agreement without the prior written consent of Client (i) in connection with a merger or reorganization and/or (ii) to any person or entity acquiring all or substantially all of the assets or stock of Solid Cactus. This Agreement will be binding upon and will inure to the benefit of the Parties' permitted successors and/or assignees.

17. NON-SOLICITATION.

Client agrees that it will not solicit the engagement and/or employment of the services of any employee of Solid Cactus (either directly or through an agent), without written permission of Solid Cactus, during the term of this Agreement and any extension thereof and continuing for a period of one (1) year following its expiration or termination.

18. SURVIVAL OF OBLIGATIONS.

This Agreement will be binding on, and inure to the benefit of, the executors, administrators, heirs, successors, and permitted assigns of the Parties. Both Parties agree to be bound by the terms and conditions contained herein for the Term of this Agreement, and where applicable, Sections 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 14, 15, 16, 17, 18 & 19 herein will survive beyond the Term of this Agreement.

19. GOVERNING LAW AND VENUE.

This Agreement shall be governed by the laws of the State of Florida, without giving effect to principles of conflict of laws contained herein. Client agrees that any judicial proceeding for the breach of or enforcement at law or equity of this Agreement or any provision hereof shall be instituted only in a federal or state court of competent jurisdiction in the city of Jacksonville and the State of Florida, and 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.

20. PROHIBITED TRANSACTIONS.

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.

CLIENT ACKNOWLEDGES THAT THEY HAVE READ THESE TERMS AND CONDITIONS AS WELL AS ANY TERMS AND CONDITIONS CONTAINED IN THE ORDER FORM, AND THAT THAT THEY UNDERSTAND THEM, AGREE TO BE BOUND BY THEM, CONSENT TO SUCH TERMS AND CONDITIONS BY EXECUTING THE RELATED ORDER FORM, AND THAT THEY ARE FULLY AND COMPLETELY AUTHORIZED TO DO SO.

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