TERMS OF SERVICE AGREEMENT
Last updated on October 19, 2011
The following terms of services applies to persons who utilize Giving eCards for online fundraising purposes.
THIS TERMS OF SERVICE AGREEMENT (“Agreement”) is made between The Brick Factory, LLC (“Company”) and any person (“User”) who completes the registration process to open and maintain an account with the Company’s interactive online and communication service, Giving eCards (“Service”). Company and User are collectively referred to as the “parties.”
BY CLICKING THE ACCEPTANCE BUTTON OF ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICES, USERS EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, COMPANY WILL PROMPTLY CANCEL THIS TRANSACTION AND USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.
1. Service Terms and Limitations
a. Description. The Service is proprietary to Company and is protected by intellectual property laws and international intellectural property treaties. User’s access to the Service is licensed and not sold. Subject to the timely payments of all Fees and the terms and limitations seet forth in this Agreement, Company agress to provide User with a personal, non-transferable and non-exclusive account enabling User to access and use the Service.
b. Accessibility. User agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are no reasonably foreseeable by Company.
c. Equipment. User shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physicial requirements for User’s use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipement, programs and services required to access and use the Service.
a. Security. User shall be solely resonsible for the security, confidentiality and integrity of all messages and the content that User recives, transitms through or stores on the Service. User shall be solely responsible for any authorized or unauthorized access to User’s account by any person. User agrees to bear all the responsibility for the confidentiality of User’s password and all use or charges incurred from the use of the Service with User’s password.
b. Privacy. When reasonably practicable, Company will attempt to respect User’s privacy. Company will not monitor, edit or disclose any personal information about User or User’s account, including its contents or User’s use of the Service, without User’s prior consent unless Company has a good faith belief that such action is necessary to (i) comply with legal process or other legal requirements of any governmental authority; (ii) protect and defend the rights or property of Company; (iii) enforce this Agreement; (iv) protect the interests of users of the Service other than User or any other person; or (v) operate or conduct maintenance and repair of Company’s services or equipment, including the Service as authorized by law. User has no expectation of privacy with respect to the Internet generally. User’s IP address is transmitted and recorded with each message User sends from the Service. Company does provide certain information in aggregate form collected from and relating to User to third person such as advertisers and sponsors.
a. Payment. User shall pay Company for the Service the subscription charge of $20/month. This fee is in addition to charges from Paypal, which is used to process the credit card transation. Fees will be invoiced monthly and are due within thirty (30) days of date of invoice. Company expressly reserves the right to change the Fees at any time, upon notice to User.
b. Collection. Any invoices not paid within said 30 day period shall incur a late fee of 5% of the amount not timely paid and shall accrue interest at the rate of 18% per annum from the date of the invoice. If any invoice remains unpaid for a period in excess of 45 days after issuance, Company reserves the right to suspend all services hereunder until all such invoices are paid and the account is brought current.
4. User Representations
User represents and warrants to Company that: (a) User is over the age of eighteen (18) and has the power and authority to enter into and perform User’s oblications under the Agreement; (b) all information provided by the User to Company is truthful, accurate and complete; (c) User is the authorized signatory of any credit or charge card provided to Company to pay the Fees; (d) User shall comply with all terms and conditions of this Agreement, including, without limitation, the provision set forth at Section 5; and (e) User has provided and will provide accurate and complete registration information, including, without limitation, User’s legal name, address and telephone number.
5. Prohibited Uses
User is solely responsible for any and all acts and omissions that occur under User’s account or password, and User agrees not to engage in unacceptable use of the Service, which includes, without lilmitation, use of the Service to: (a) disseminate, store or transmit unsolicited messages, chain letters, or unsolicity commercial email; (b) disseminate or transmit materials that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harrassing, grossly offensive, vlugar, threatening or malicious; (c) disseminate, store or transmit files, graphics, software or other materials that actually or potentially infringes the copyright, trademark, patend, trade secret or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export or permit downloading of any message or content in violation of any export or import law, regulartion or restriction of the United States and its agencies or authorities, or without all required approvals, licences or exemptions; (f) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (g) diseeminate, store or transmit viruses, trojan horses or any other malicious code or program; or (h) engage in any other activity deemed by the Company to be in conflict witht eh spirit or inten of this Agreement.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior notice to Company. Company reserves the right, in its sole discretion and without notice, at any time and for any reason to: (a) remove or disable access to all or any portion of the Service; (b) suspend User’s access to or use of al or any portion of the Service; and (c) terminate this Agreement.
7. Disclaimer of Warranties
THIS SERVICE IS PROVIDEED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLEID. USE OF THE SERVICE IS AT USER’S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUROSE, IN RELATION TO THE SERVICE.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF THE CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMANGES, THUS THIS LIMITATION OF LAIBILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6.
User agrees to indemnify, hold harmless and defend Company, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonble costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) User’s use of the Service, icnluding any data or work transmitted or received by User; and (c) any unacceptable use of the Service, including, without limitation, any statement, data or content made, transmitted, or republished by User which is prohibited as unacceptable at Section 5.
a. Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or recate any obligation, express or implied, on behalf of the other party.
b. Amendment. Company shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply be delivering such amended terms to User by email at the address provided to Company by user. User’s access to or use of the Service after the data such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.