THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND FRIENDLY MARKETING SERVICES
(“FRIENDLY MARKETING SERVICES”, “WE” OR “US”). THESE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE AS WELL AS ALL ASSOCIATED SITES PROVIDED BY FRIENDLY MARKETING SERVICES, ITS SUBSIDIARIES, AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”). BY USING THIS SITE OR REGISTERING TO USE THE SERVICES OFFERED THROUGH THE SITE (“SERVICES”), YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES OR ANY INFORMATION CONTAINED ON THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH FRIENDLY MARKETING SERVICES. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
FRIENDLY MARKETING SERVICES may make changes to the content and Services offered on or through the Site at any time. FRIENDLY MARKETING SERVICES can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site and, if you are a current Subscriber (as defined below), emailing you at the email address associated with your registered account. By using this Site after FRIENDLY MARKETING SERVICES has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site and Services.
By using this Site and/or Services, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years you may not use the Site or Services at any time or in any manner or submit any information to FRIENDLY MARKETING SERVICES or the Site.
FRIENDLY MARKETING SERVICES provides content on the Site and through the Services that is the copyrighted and/or trademarked work of FRIENDLY MARKETING SERVICES, FRIENDLY MARKETING SERVICES’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to your compliance with these Terms, FRIENDLY MARKETING SERVICES hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site and Services solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site, Services or Materials in any manner.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
Using the Site and the Services on the Site
You need not register with FRIENDLY MARKETING SERVICES to simply visit and view the Site. However, in order to access certain password-restricted areas of the Site and to use the Services and certain Materials offered on and through the Site, you must register with FRIENDLY MARKETING SERVICES for an account and receive a password.
Restricted Areas of this Site
FRIENDLY MARKETING SERVICES administrator shall have the right to approve or reject the requested registration, in the Company’s sole discretion. If your account is approved by FRIENDLY MARKETING SERVICES’s administrator, you will be notified and provided with Access Details such as username and password. The Access Details are for your own personal use only. You are responsible for maintaining the confidentiality of your Access Details and you are responsible for all activities that occur using your Access Details.
All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date.
By registering for an account with FRIENDLY MARKETING SERVICES and subscribing to use the Services, you become a “Subscriber” with access to certain password-restricted Services, Materials and areas of the Site (a “Subscription”). Subscriptions and the rights and privileges provided to a Subscriber are personal and non-transferable.
Certain Services sold by FRIENDLY MARKETING SERVICES may require FRIENDLY MARKETING SERVICES to host certain elements of such Services and to provide ongoing support services. FRIENDLY MARKETING SERVICES reserves the right, in its sole discretion, to discontinue hosting, support and all other activities related to such Services at any time following 12 months from your initial purchase of such Services. Prior to such discontinuance, FRIENDLY MARKETING SERVICES will provide you with at least 30 days prior notice. Such notice will be sent to the email address associated with your account, so it is your responsibility to update as necessary the email address associated with your account. Notwithstanding the foregoing, FRIENDLY MARKETING SERVICES shall only be required to provide such notice to users that have logged into the accounts associated with the Service to be discontinued within the period of 90 days prior to the date of notice of discontinuation. Upon discontinuation of a Service, FRIENDLY MARKETING SERVICES may delete all databases associated with your use of the Service.
ALL PURCHASES OF SUBSCRIPTIONS, SERVICES AND OTHER PRODUCTS FROM FRIENDLY MARKETING SERVICES ARE FINAL AND NO REFUNDS ARE AVAILABLE, UNLESS OTHERWISE EXPRESSLY PROVIDED FOR ON OUR WEBSITE OR IF FRIENDLY MARKETING SERVICES CANCELS YOUR ORDER.
While FRIENDLY MARKETING SERVICES attempts to create the highest quality Services, the actual benefits realized by customers may vary depending upon a number of variables, including customer efforts and initiative. You agree not to initiate any charge-back on fees you have paid to FRIENDLY MARKETING SERVICES, unless you did not actually receive the Services that your ordered.
If you cancel your account or Service at any time, you will not receive any refund. However, even if FRIENDLY MARKETING SERVICES's policy for a certain service allows for a refund, if FRIENDLY MARKETING SERVICES determines that your purchase was initiated with the intent of benefiting from the purchase and then requesting a refund (which might be indicated by multiple refund requests), then FRIENDLY MARKETING SERVICES may refuse to grant you a refund under such circumstances.
Electronic and Other Communications
By using the Site and/or the Services, you consent to receiving electronic and telephone communications from or on behalf of FRIENDLY MARKETING SERVICES. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services (including offers and information about new Services). These electronic communications are part of your relationship with FRIENDLY MARKETING SERVICES. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Third Party Content
Certain Materials may be provided by third party licensors and suppliers to FRIENDLY MARKETING SERVICES (“Third Party Content”). Such Third Party Content is, in each case, the copyrighted work of the creator/licensor. Unless you have permission from the owner of the Third Party Content, you agree to use such Third Party Content pursuant to the applicable licenses of such Third Party Content. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. FRIENDLY MARKETING SERVICES DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Links to Third Party Sites
When using this Site and/or the Services, you agree to abide by common standards of etiquette and act in accordance with the law. For example, you agree not to not to:
Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Use racially, ethnically, or otherwise offensive language.
Discuss or incite illegal activity.
Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
Post anything that exploits children or minors or that depicts cruelty to animals.
Post any copyrighted or trademarked materials without the express permission from the owner.
Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
Use any robot, spider, scraper or other automated means to access the Site.
Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
Alter the opinions or comments posted by others on this Site.
Post anything contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. FRIENDLY MARKETING SERVICES reserves the right to terminate access to your account, your ability to post to this Site (or use the Services) with or without cause and with or without notice, for any reason or no reason, or for any action that FRIENDLY MARKETING SERVICES determines is inappropriate or disruptive to the Site or Services, or to any other user of the Site and/or Services. FRIENDLY MARKETING SERVICES may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at FRIENDLY MARKETING SERVICES’s discretion, FRIENDLY MARKETING SERVICES will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Site, the Services, or on the Internet.
You agree to indemnify and hold FRIENDLY MARKETING SERVICES and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) FRIENDLY MARKETING SERVICES or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or Services violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
FRIENDLY MARKETING SERVICES and third party trademarks and service marks may or may not be designated as such from time-to-time through the SM, TM or ® symbols. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, re-transmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
Intellectual Property Infringement
FRIENDLY MARKETING SERVICES respects the intellectual property rights of others, and we ask you to do the same. FRIENDLY MARKETING SERVICES may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site or in the Services, please provide FRIENDLY MARKETING SERVICES’s designated agent the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit FRIENDLY MARKETING SERVICES to locate the material.
Information reasonably sufficient to permit FRIENDLY MARKETING SERVICES to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
FRIENDLY MARKETING SERVICES’s agent for notice of claims of copyright or trademark infringement can be reached as follows: [Your Email]
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a Digital Millennium Copyright Act (“DMCA”) Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to FRIENDLY MARKETING SERVICES designated agent that includes all of the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which FRIENDLY MARKETING SERVICES may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
FRIENDLY MARKETING SERVICES reserves the right, in its sole discretion, to terminate the account or access of any user of our Site and/or Services who is the subject or repeated DMCA or other infringement notifications.
Disclaimer of Warranties
Your use of the Site and Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by FRIENDLY MARKETING SERVICES, and they may include inaccuracies or typographical or other errors. FRIENDLY MARKETING SERVICES does not warrant the accuracy of timeliness of the Materials contained on this Site or obtained through the Services. FRIENDLY MARKETING SERVICES has no liability for any errors or omissions in the Materials, whether provided by FRIENDLY MARKETING SERVICES, our licensors or suppliers or other users.
FRIENDLY MARKETING SERVICES, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE OR THROUGH THE SERVICES IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FRIENDLY MARKETING SERVICES DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE AND/OR ANY SERVICE. YOU UNDERSTAND THAT FRIENDLY MARKETING SERVICES DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES. FRIENDLY MARKETING SERVICES MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS OR ENTITIES WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR ANY SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OR CONDUCT BUSINESS OFFLINE OR IN PERSON.
Limitation of Liability
FRIENDLY MARKETING SERVICES SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE OR THE SERVICES. IN NO EVENT SHALL FRIENDLY MARKETING SERVICES BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF FRIENDLY MARKETING SERVICES KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
Local Laws. FRIENDLY MARKETING SERVICES accept Subscribers internationally. You are responsible to adhere to your applicable local laws where you live.
If you send or transmit any communications, comments, questions, suggestions, or related materials to FRIENDLY MARKETING SERVICES, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and FRIENDLY MARKETING SERVICES is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that FRIENDLY MARKETING SERVICES is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us via Your Email. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and FRIENDLY MARKETING SERVICES. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and FRIENDLY MARKETING SERVICES shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “THE COMPANY” means FRIENDLY MARKETING SERVICES and its parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and THE COMPANY regarding any aspect of your relationship with THE COMPANY, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as THE COMPANY’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give THE COMPANY an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Your Email. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If THE COMPANY does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or THE COMPANY may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by sending a written notification to Your Email. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with THE COMPANY through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with THE COMPANY. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or THE COMPANY may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site, Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or THE COMPANY may initiate arbitration in either the State of Alabama or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, THE COMPANY may transfer the arbitration to Alabama in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – THE COMPANY will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with THE COMPANY as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and THE COMPANY specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site or Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and THE COMPANY are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and THE COMPANY might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with FRIENDLY MARKETING SERVICES or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if FRIENDLY MARKETING SERVICES makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require FRIENDLY MARKETING SERVICES to adhere to the language in this Provision if a dispute between us arises.
FRIENDLY MARKETING SERVICES prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by FRIENDLY MARKETING SERVICES, may result in immediate termination of your access to the Site and/or Services without prior notice to you. The Federal Arbitration Act, Alabama state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in the city and State of Alabama. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. FRIENDLY MARKETING SERVICESs’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and FRIENDLY MARKETING SERVICES and supersede all prior or contemporaneous negotiations, discussions or agreements between you and FRIENDLY MARKETING SERVICES about the Site and Services. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact FRIENDLY MARKETING SERVICES for any reason, please contact via Your Email
The Information We Collect
We may collect information about you directly from you and from third parties (such as those that sell our products), as well as automatically through your use of our Site or Services.
Information We Collect Directly From You
Certain areas and features of our Site and Services may require registration. To register you must provide your name and email. If you purchase something, we will also request your credit, debit, and/or financial account data, as well as billing information, including billing address. In addition, we may collect information from you through surveys, contests and questionnaires that we may invite you to participate in. We may also collect information such as your phone number or other contact information, though you are not required to provide this.
Information We Collect Automatically
How We Use the Information We Collect
We use the information that we gather about you for the following purposes:
To provide our Services to you, to communicate with you about your use of our Services, to respond to your inquiries, to fulfill your orders, and for other customer service purposes.
To tailor the content and information that we may send or display to you, to offer location customization, and personalized help and instructions, and to otherwise personalize your experiences while using the Site or our Services.
To send you news and newsletters, special offers, and promotions; to otherwise contact you about products or information we think may interest you; and for other marketing and promotional purposes.
To better understand how users access and use our Site and Services, both on an aggregated and individualized basis, in order to improve our Site and Services and respond to user desires and preferences, and for other research and analytical purposes.
How We Share the Information We Collect
We may share the information that we collect about you, including personally identifiable information, as follows:
Affiliates. We may disclose the information we collect from you to our affiliated companies or subsidiaries; however, if we do so, their use and disclosure of your personally identifiable information will be subject to this Policy.
Service Providers. We may disclose the information we collect from you to third-party vendors, service providers, contractors or agents who perform functions on our behalf. If we do so, their use and disclosure of your personally identifiable information will be subject to this Policy.
Business Transfers. If we are acquired by or merged with another company, if substantially all of our assets are transferred to another company, or as part of a bankruptcy proceeding, we may transfer the information we have collected from you to the other company.
In Response to Legal Process. We also may disclose the information we collect from you in order to comply with the law, a judicial proceeding, court order, or other legal process, such as in response to a court order or a subpoena.
Aggregate and De-Identified Information. We may share aggregate or de-identified information about users with third parties for marketing, research or similar purposes.
Clear GIFs. Clear GIFs (a.k.a. web beacons, web bugs or pixel tags) are tiny graphics with a unique identifier, similar in function to cookies. In contrast to cookies, which are stored on your computer’s hard drive, clear GIFs are embedded invisibly on web pages. We may use clear GIFs, in connection with our Site to, among other things, track the activities of Site visitors and App users, help us manage content, and compile statistics about usage. We and our third party service providers also use clear GIFs in HTML e-mails to our customers, to help us track e-mail response rates, identify when our e-mails are viewed, and track whether our e-mails are forwarded.
Notice for Users. These cookies collect information about how visitors use a website, for instance which pages visitors go to most often, and if they get error messages from web pages. These cookies don’t collect information that identifies a visitor. All information these cookies collect is aggregated and therefore anonymous. It is only used to improve how a website works. By using our online service, you agree that we can place these types of cookies on your device.
Third-Party Ad Networks
What about Do-Not-Track options?
Currently, our Site does not honor browser requests not to be tracked. You may, however, opt out of many website third-party ad networks, including those operated by members of the Network Advertising Initiative (“NAI”) and the Digital Advertising Alliance (“DAA”). For more information regarding this practice by NAI members and DAA members, and your choices regarding having this information used by these companies, including how to opt out of third-party ad networks operated by NAI and DAA members, please visit their respective websites: www.networkadvertising.org/optout_nonppii.asp (NAI) and www.aboutads.info/choices (DAA).
Opting out of one or more NAI member or DAA member networks (many of which will be the same) only means that those members no longer will deliver targeted content or ads to you. It does not mean you will no longer receive any targeted content or ads on our Site or other websites. You may continue to receive advertisements, for example, based on the particular website that you are viewing. Also, if your browsers are configured to reject cookies when you visit this opt-out page, or you subsequently erase your cookies, use a different computer or change web browsers, your opt-out may no longer be effective. Additional information is available on the NAI and DAA websites accessible by the above links.
Your Choices about Communications and Marketing
We may send alerts and notifications, as well as periodic promotional informational or other marketing emails to you. You may opt out of marketing-related emails by following the opt-out instructions contained in any marketing e-mail we send you. Please note that it may take up to 10 business days for us to process opt-out requests. If you opt out of receiving marketing emails, we may still send you alerts, notifications and other e-mails about your account or any services you have requested or received from us.
FRIENDLY MARKETING SERVICES has affiliates internationally. Your information may be stored and processed in the United States or any other country where FRIENDLY MARKETING SERVICES and/or it’s affiliates are located; by submitting your information though our website, you agree to such transfers.
We have implemented commercially reasonable precautions to protect the information we collect from loss, misuse, and unauthorized access, disclosure, alteration, and destruction. Please be aware that despite our best efforts, no data security measures can guarantee 100% security. You should take steps to protect against unauthorized access to your password, phone, and computer by, among other things, signing off after using a shared computer, choosing a robust password that nobody else knows or can easily guess, and keeping your log-in and password private. We are not responsible for any lost, stolen, or compromised passwords or for any activity on your account via unauthorized password activity.
Changes to this Policy
Website accessibility solution User License Agreement
THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL, COMPANY OR OTHER LEGAL ENTITY ("You") and FRIENDLY MARKETING SERVICES]. AND ITS AFFILIATES AND ITS TECHNOLOGY PARTNERS (THE "COMPANY"PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING AND/OR USING COMPANY’S SOFTWARE. ANY USE OF COMPANY’S SOFTWARE INCLUDING ANY REVISIONS, MODIFICATIONS, ENHANCEMENTS, UPDATES AND/OR UPGRADES THERETO ("SOFTWARE", AS FURTHER DEFINED BELOW) SUPPLIED BY COMPANY AND/OR ITS AUTHORIZED RESELLERS, ARE AND SHALL BE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, UNLESS YOU AND COMPANY HAVE EXECUTED A SEPARATE AGREEMENT IN WRITING, SIGNED BY BOTH YOU AND COMPANY WHICH EXPRESSLY SUPERSEDES THIS AGREEMENT. COMPANY AND YOU SHALL EACH BE REFERRED TO AS A "PARTY" AND, JOINTLY, AS THE "PARTIES".
BY DOWNLOADING AND/OR INSTALLING AND/OR OPERATING AND/OR OTHERWISE USING THE SOFTWARE, YOU ARE EXPRESSLY AND EXPLICITLY ACCEPTING THIS AGREEMENT AND AGREEING TO BE FULLY BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THIS AGREEMENT OR ARE NOT WILLING TO BE BOUND BY IT, DO NOT DOWNLOAD, INSTALL, OPERATE AND/OR OTHERWISE USE THE SOFTWARE AND YOU MUST PROMPTLY UNINSTALL THE SOFTWARE, AND ANY PART THEREOF, FROM YOUR SYSTEM.
The Company offers a variety of plans under its services. For the purpose of this Agreement, the plans shall be divided into 2 types: (i) free plans (collectively- the "Free Plan"); and (ii) premium plans, including the enterprise plan (the "Premium Plans" and the "Enterprise Plan", respectively); Each plan has its own features and qualifications, all as further detailed in this Agreement.
1.LICENSE GRANT AND RESTRICTIONS
1.1 The Software. The commercial software products licensed to you hereunder are set forth in one of the following means: (a) in accordance with this Agreement; (b) if you purchased the Enterprise Plan, or any optional feature under any of the Premium Plans, in accordance with a purchase order executed between you and Company; or (c) if you purchased the Enterprise Plan, or any optional feature under any of the Premium Plans, in accordance with a purchase order executed between Company's authorized reseller (the "Reseller") and you (both purchase orders are collectively referred herein as the "Purchase Order"). Such software products, including any revisions, modifications, enhancements, updates and/or upgrades thereto (the "Software") are provided to you solely for the regular and standard purposes the Software is designed for, all in accordance with the terms set forth in this Agreement and the Purchase Order. The term "Software" also includes code, compilation of data, or visual display resulting from the operation of the Software, and any associated materials, equipment, systems, specifications and Documentation (as defined below).
1.2 License. Subject to the terms and conditions of this Agreement and the payment of fees set forth in this this Agreement or the Purchase Order, as the case may be ("Fees"), the Company hereby grants you (and your Affiliates, if applicable), and you accept, the following license
1.2.1. Subscription License: during the term specified in this Agreement, the Price List, or in the Purchase Order, a limited, non-exclusive, non-sublicensable, non-transferable and fully revocable license to install, operate and use the Software solely for your internal business purposes and for the number of facilities and/or domains that were set forth in your order form and/or in the relevant Purchase Order ("Subscription License").
1.2.2. The Software will be installed and used in accordance with the terms and conditions contained in this Agreement and in accordance with the Software's documentation and manuals for installation provided by the Company or its Reseller (the "Documentation"). All other rights in the Software are expressly reserved by the Company.
1.3. Prohibited Uses. Except as explicitly provided herein, without the prior written consent of the Company, you may not, nor permit anyone else to, directly or indirectly: (i) use, modify, revise, enhance, incorporate into or with other software, or create a derivative work of any part of the Software; (ii) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under this Agreement with or to anyone else; (iii) copy, distribute, publish or reproduce the Software; (iv) use or permit the Software to be use to perform services for third parties, whether on a service bureau or time sharing basis or otherwise; (v) disclose, publish or otherwise make publicly available the results of any benchmarking of the Software, or use such results for your own competing software development activities; (vi) disassemble, decompile, reverse engineer, or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software, except to the extent otherwise permitted under applicable law in the jurisdiction of use, notwithstanding this prohibition; (vii) remove or otherwise alter any of the Company's trademarks, logos, copyrights or other proprietary notices or indicia, if any, fixed or attached to the Software as delivered to you; (viii) ship, transfer or export the Software into any country, make available or use the Software in any manner which is in violation of applicable export control laws, restrictions or regulations; (ix) disclose, provide or otherwise make available trade secrets contained within the Software in any form to any third party; and/or (x) use the Software in violation of applicable laws, or in a manner which infringes third party rights (including without limitation, intellectual property or privacy rights).
1.4. Authorized Users. You may not allow access to the Software by third parties or anyone other than (i) your employees whose duties require such access or use; and (ii) your authorized consultants and subcontractors (excluding any direct competitors of the Company) while such access will be permitted only where such use is required as part of their performance of services on your behalf. You will ensure that your employees, consultants and subcontractors comply with the terms of this Agreement and shall bear full responsibility for any harm caused to the Company for breach of the terms of the license by your consultants or subcontractors.
2.COMPLIANCE WITH ACCESSIBILITY STANDARDS; SOFTWARE FEATURES
If you acquired the Enterprise Plan, which contains full implementation services from the Company, or purchased such full implementation services in addition to a license to use the accessibility solution under one of the Plans, then following the completion of such services by the Company, the following will apply:
2.1 Your website shall comply with the following accessibility standards: (i) WCAG 2.1 AA, (ii) European standard EN 301549; (iii) US Section 508 standards; and (iiii) Israeli standard IL 5568 at level AA (the "Standard").
2.2 The following features, inter alia, shall apply to the Software (the "Features"):
2.2.1. Compatibility with the following browsers: Edge, Safari, Chrome, Firefox.
2.2.2. Compatibility with use on websites constructed in HTML5, and without code errors when checking the browser console; you must ensure that no code takes control of the keyboard, and that no JS clashes are created on the website.
2.2.3. The Software only supports HTML tags and files.
2.2.4. CAPTCHA forms on your website must conform with the Standard and is under your responsibility.
2.2.5. The Software does not support SVG Flash or Canvas component.
2.2.6. The Software does not support third party component services such as Frame set, iframe virtual service representative, etc.
2.2.7. Only iframe components operating under the same domain as the website can be made accessible.
2.2.8. The Software does not support drag components.
2.2.9. The Company is not responsible for any HTML code that is not conforming to the Standard or not written in conformity with the W3C standard.
2.3 Notwithstanding the foregoing, the Company gives no guarantee that the Software shall at all times comply with the Standard. The Company shall take commercially reasonable efforts to meet the Standard requirements but under no circumstances does the Company give any warranty that all Standard requirements shall be met. Company shall have up to 60 business days to rectify any regulatory non-compliance issue from the day on which You provide Company with written notice regarding such non-compliance issue (the "Cure Period"). Without prejudice to other limitation of liability clauses in this Agreement, the Company shall not be liable for non-compliance issues which are resolved within the Cure Period, or which relate to matters which are in your of responsibility as set forth in Sec. 3.2 below. You are required to promptly notify the Company in writing of any non-compliance issues that You are made aware of.
For the avoidance of doubt, if you acquired the Free Plan and/or the Premium Plan and have not purchased such full implementation services in addition to a license to use the accessibility solution under one of the Plans, the Company does not commit that your website shall comply with the aforementioned Standards and Features.
3. SERVICES RELATED TO THE SOFTWARE
3.1 Unless indicated explicitly in a Purchase Order, this Agreement and/or its appendixes, the Company has no obligation to provide the following services: Software support and maintenance, Software delivery and installation, Software training or other professional services. The Purchase Order will indicate which services are provided by the Company or its Resellers.
3.2 If you acquired the Enterprise Plan and/or purchased services (such as implementation services) in addition to a license to use the accessibility solution under one of the Plans, then such services shall be provided to your designated website by the Company or by the relevant Reseller, as the case may be, subject to the following:
3.2.1. The website should be made to meet accessibility requirements in accordance with the website’s existing templates, and in accordance with relevant accessibility regulations. You will be notified of the completion of the process of making the website accessible by the appearance of a mark on the administration interface, pertaining to the website’s pages/templates made accessible.
3.2.2. Publishing an accessibility declaration and your organization’s accessibility arrangements is your sole responsibility, in accordance with relevant accessibility requirements.
3.2.3. Upon completion of the accessibility implementation work, you may obtain additional accessibility services works from Company or Reseller, as the case may be, for an extra charge for any addition of and/or update to templates and/or use of new technologies and/or change to the code and/or tags and/or selectors on which the website’s system is based (the "Changes to the Website"). You shall be solely responsible for the accessibility of any Changes to the Website, unless you acquired implementation services pertaining to such Changes to the Website.
3.2.4. You shall be, at all times, solely responsible for all the materials and content displayed on the website, including in matters concerning copyrights in and the accessibility of the content, documents and media displayed on the website and listed in Appendix B ( "the Contents"). You hereby expressly acknowledges that Company or Reseller (if applicable) shall not be responsible for checking the Contents and/or their compliance with the law and/or for checking any accessibility certificates required for your website.
3.2.5. You may engage the services of an accessibility consultant or licensed service accessibility expert. Any accessibility reports by external consultants shall be handled for an additional charge.
4.1 The Fees and payment terms for the license granted under each Plan and/or any related services are specified in the Purchase Order.
5. TITLE AND OWNERSHIP
5.1 The Software and the Documentation are licensed and not sold. The Company and its licensors (if applicable) are and shall retain all right, interest and ownership in and to the Software and the Documentation, including without limitation in and to any and all intellectual property rights (including, without limitation, copyrights, trade secrets, trademarks, improvements, revisions, derivative works and etc.) evidenced by or embodied in and/or attached/connected/related to the Software. This Agreement does not convey to you an interest in or to the Software but only a limited revocable right to use the Software, during the applicable license term, in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of the Company's intellectual property rights under any law. If you contact the Company or its Reseller with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, "Feedback"), such Feedback shall be deemed non-confidential, and the Company shall have a non-exclusive, worldwide royalty-free and perpetual license to use or incorporate such Feedback into the Software and/or other current or future products or services of the Company (without your approval and without further compensation).
5.2 Without derogating from the generality of the foregoing, the Software and all its parts and contents, including applications developed by Company or at Company's request, are the Company's sole property, even if any changes and adjustments are made for you, with or without consideration, and all the copyrights are reserved to Company. It is clarified that the license to operate and use the software for your website does not confer upon you any right in the software’s source code and/or grant it any access to the software application or grant it any access to the open or closed software code.
6. REPRESENTATIONS AND WARRANTIES, EXCLUSIONS AND DISCLAIMERS
6.1 Company's Representations. If you acquired the Enterprise Plan, the Company hereby represents to you as follows: (i) it has the full right, power and authority to grant the rights and licenses granted herein; (ii) it implements industry standard measures to ascertain that the Software does not contain any viruses, harmful components, illicit code, time-bombs, worms, Trojan horses, protect codes, data destruct keys, or other programming devices or code that might, or might be used to, access, modify, delete, damage, deactivate or disable any deliverables or other software, computer hardware, or data; (iii) all implementation and maintenance services will be performed in a professional and workmanlike manner and in compliance with all applicable laws and (iv) the Company shall take commercially reasonable efforts to meet the requirements and specifications stated in the Documentation. For the avoidance of any doubt, if you acquired the Free Plan and/or the Premium Plan, such representations shall not and will not apply to you in any manner.
6.2 Specific Exclusions. Without derogating from any general and/or specific exclusions of warranty set forth in this Agreement, no warranty and no liability shall be borne by Company in the following: (i) repair, maintenance or modification of the Software by persons other than authorized entities; (ii) accident, negligence, abnormal physical or electrical stress, abnormal environmental conditions, abuse or misuse of the Software (in each case, unless caused by Company or its agents or representatives); (iii) use of the Software other than in accordance with the Software's manuals, specifications, Documentation and/or purpose; (iv) the combination of the Software with equipment and/or software not authorized or provided by the Company or otherwise approved by the Company in the Software's Documentation; (v) the Software being licensed for beta evaluation, testing or demonstration purposes; (vi) if you do not follow the general guidelines set forth in Appendix B (which, for clarity purposes, are solely your responsibility and do not constitute any legal and/or other counsel).
6.3 DISCLAIMERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND THE COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
7. LIMITATION OF LIABILITY
7.1 EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND WITHOUT PREJUDICE TO THE LIMITATION OF LIABILITY AS SET FORTH IN SECTION 2.3 ABOVE: (A) THE COMPANY OR ITS SUPPLIERS AND/OR LICENSORS AND/OR RESELLERS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT OR OTHERWISE, TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM AND/OR RELATED WITH AND/OR CONNECTED TO THE INSTALLATION OF THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY OR ITS RESELLERS AND/OR ANY USE OF OR INABILITY TO USE THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY OR ITS RESELLERS, EVEN IF THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL THE COMPANY'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE AGGREGATED AMOUNT OF (10) US DOLLARS (UNLESS YOU HAVE PURCHASED THE ENTERPRISE PLAN OR ANOTHER PREMIUM PLAN WITH WARRANTY, IN SUCH CASE THE LIABILITY CAP SHALL BE AS SET FORTH IN THE COMPANY'S PRICE LIST HERE) . (THE "LIABILITY CAP"). FOR CLARITY THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
8. THIRD PARTY SOFTWARE
The Software is based on software which is developed and owned by the Company and/or its licensors. The Software may use or include third party software, files and components that are subject to open source and third party license terms ("Third Party Components"). Your right to use such Third Party Components as part of, or in connection with the Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an "AS IS" basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. You hereby agree to such terms associated with the Third Party Components. Under no circumstances shall the Software or any portion thereof (except for the Third Party Components contained therein) be deemed "open source" or "publicly available" software.
9. CUSTOMER DATA
You hereby acknowledge that the Software may collect, use, store and transmit to Company technical and related information of your systems and computers including IP address, file hashes, browser type, operating system, application usage (including but not limited to successful installation and/or removal), software usage and peripheral hardware, that may be gathered periodically to facilitate the provision of the Software, Software updates, Software's support and other services provided to you, including online services.
10.1 You agree, in accordance with final non-appealable court judgement, to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to reasonable attorney's fees) arising from your unauthorized use of the Software and/or breach of the provisions of this Agreement and/or any Purchase Order. Company shall promptly notify you of any such claim, complaint or lawsuit. You shall have the right, in your sole discretion, to defend any claim, complaint, or lawsuit and to settle any claim, complaint, or lawsuit at your own expense and by your own counsel. Any settlement agreement must be reasonably approved in advance by the Company. The Company is obligated to cooperate fully in the investigation and defense of any such claim, complaint or lawsuit. In addition, this indemnification does not apply to any loss, damage, cost or expense to the extent such Losses are caused by the gross negligence or willful misconduct or the Company or any of the Company’s employees, subcontractors, agents, representatives or assigns.
10.2 Only if you acquired the Enterprise Plan or other Premium Plan with warranty services, then the Company, in accordance with final non-appealable court judgement, agrees to defend, indemnify and hold harmless You, your officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to reasonable attorney's fees) arising out of or incurred in connection with any third party claim, action, suit or proceeding (including, without limitation, any governmental or similar authority investigation, inquiry or action), to the extent it is based on a claim that the Software or Documentation or any of the services provided here under infringes any patent, trademark, copyright or trade secret of a third party, provided, however, that such claim is found to be true by a competent court in a final, non-appealable court ruling.
10.3 Only if you acquired the Enterprise Plan or other Premium Plan with warranty services, then the Company, in accordance with final non-appealable court judgement, further agrees to defend, indemnify and hold harmless You, your officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to reasonable attorney's fees) arising out of or incurred in connection with any third party claim, action, suit or proceeding (including, without limitation, any governmental or similar authority investigation, inquiry or action), to the extent it is based on breach of Sec. 2.1 and 2.2 above, which is not cured within the Cure Period set forth in Sec. 2.3 above, and to the extent that such doesn't derive from or relate to matters which are in Your responsibility as set forth in Sec. 3.2 above.
10.4 You agree that: (i) you shall, as soon as reasonably practicable, notify the Company in writing of any claim for which it intends to seek indemnification hereunder promptly after becoming aware of such claim; (ii) you shall not make any admission as to liability or compromise or agree to any settlement of any such claim without the prior written consent of the Company which consent shall not be unreasonably withheld or delayed; and (iii) the Company shall, at its own expense, be entitled to have the conduct of or settle all negotiations and litigation arising from any such claim and you shall, at Company's request and expense, give the Company all reasonable assistance in connection with those negotiations and such litigation.
10.5 The indemnification obligations set forth above shall be at all times limited to the Liability Cap.
10.6 For the avoidance of any doubt, please note that if you acquired the Free Plan and/or a Premium Plan with no warranty, the Company shall have no obligation to indemnify you pursuant to Sections 10.2 and 10.3.
11. TERM AND TERMINATION
11.1 Agreement Term. This Agreement is effective upon the first download, installation, operation and/or use of the Software and will remain in force during the Term (as defined below), unless earlier terminated in accordance with this Agreement. Subscription Licenses are period-based licenses that may be renewed for subsequent periods. The order form and/or the Purchase Order will indicate the term of your applicable license, as well as the parties' rights to terminate the license and services (the "Term").
11.2 If you have subscribed to the Free Plan, the Company may at any time, block your access to the Software and/or temporarily or permanently limit, suspend or terminate your user's account, for any reason, at the Company's sole discretion.
11.3 In addition, under any Plan, the Parties may terminate this Agreement or a specific Purchase Order on the following grounds: (i) termination by mutual written consent; (ii) by either Party upon written notice to the other Party if the other Party commits a material breach of this Agreement and fails to cure or remedy such breach within thirty (30) days after receiving written notice of such breach; or (iii) either Party may terminate this Agreement upon written notice to the other Party in the event that one or more of the following events occur(s): (a) appointment of a trustee or receiver for all or any part of the assets of the other Party; (b) insolvency or bankruptcy of the other Party; (c) a general assignment by the other Party for the benefit of creditor(s); or (d) dissolution or liquidation of the other Party. notwithstanding the foregoing, any Fees paid to Company are non-refundable under any circumstances. This means that if you purchased a License for an extended period of time, such as for a year or for a three-year period, none of the Fees paid by you are refundable.
11.4 Effect of Termination. Upon termination of this Agreement or a Purchase Order: (i) all Subscription Licenses granted to you and all valid Purchase Orders (in the event of termination of the Agreement) or those granted under a specific Purchase Order (in the event of its specific termination), as the case may be, shall expire, and you shall no longer be permitted to use the Software; and (ii) any sums and/or Fees paid by you before the date of termination are non-refundable, and you shall not be relieved of your duty to discharge in full all due sums owed to the Company under this Agreement, which sums shall become immediately due and payable on the date of termination of this Agreement or relevant Purchase Order.
11.5 Survival. Any right, obligation or required performance of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the "Confidential Information"). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. Neither Party shall have an obligation under this Agreement to maintain in confidence any information that (i) is in the public domain at the time of disclosure, (ii) though originally Confidential Information, subsequently enters the public domain other than by breach of such Party’s obligations hereunder or by breach of another person’s or entity’s confidentiality obligations, (iii) is shown by documentary evidence to have been known by such Party prior to disclosure to such Party by the discloser; or (iv) is independently developed by such Party without reference to Confidential Information.
13. REFERENCE CUSTOMER
You agree that the Company may identify you as a user of the Software and use your trademark and/or logo: (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by the Company on its website and other promotional channels for promotional purposes.
14. RIGHT TO CHANGE THESE TERMS AND CONDITIONS
The company reserves its right to change any or all of the provisions of this Agreement unilaterally. The company shall inform you of any such change in advance. You are hereby required to periodically review these terms and conditions. Notwithstanding the foregoing, you are not permitted to unilaterally change any or all of the provisions of this Agreement.
This Agreement shall be construed and governed in accordance with the laws of the State of Israel (with no regard to conflict of law provisions) and the competent courts of Tel Aviv-Jaffa, Israel shall have exclusive jurisdiction in any conflict or dispute arising out of this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement represents the complete agreement concerning the license granted herein and the subject matter hereof supersedes any prior written or oral agreements. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the maximum extent necessary to make it enforceable. This Agreement shall be binding upon the respective heirs, beneficiaries, legal or personal representatives, successors and permitted assigns of the Parties. You may not assign your rights or obligations under this Agreement without the prior written consent of the Company, and any attempt by you to so assign, shall be deemed null and void. The Company may assign its rights and or obligations under this Agreement, without your prior written consent. Notwithstanding the foregoing, you may transfer or assign any of your rights and/or obligations under this Agreement without obtaining the consent of the Company, in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of your assets or similar transaction of such assigning Party. Neither Party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond the reasonable control of a Party to this Agreement including without limitation act of God, government or local government, war, fire, flood, earthquake or storm, acts of terrorism, explosion, civil commotion, bank strike or industrial dispute.
Only if you acquired the Enterprise Plan or purchased maintenance services in addition to a license to use the accessibility solution under one of the Plans, the Company shall provide the following maintenance services during the term of your valid license (collectively, the "Maintenance Services"):
Maintenance and support services during business hours 09:00-17: 00 (GMT+2).
Maintenance services include telephone assistance, accessibility issues, and malfunctions reporting. Response is given by telephone and/or email. For this purpose, "malfunction" – material nonconformity of the Software with the description thereof contained in its accompanying documentation. Company shall make commercially reasonable efforts to operate the Software and/or system services properly and without any technical malfunctions or disruptions. However, interruptions and malfunctions in the operation of the Software and/or the system may sometimes exist, which are beyond the control of the Company and/or caused by improper use of the Software by you. You shall have no claim, demand or suit against the Company with respect to any such malfunction or interruption, including for any damage caused, directly or indirectly, by such interruptions or malfunctions. In addition, updates to the software or updated versions thereof, including enhancements and additions, shall be provided from time to time by the Company, at its discretion. The service shall be provided during Company regular working hours, excluding holidays.
Software upgrades for the duration of the license.
Maintenance services include version updates in accordance with changes in accessibility standards.
Provision of a professional opinion by an accessibility expert on our behalf in cases of exemption.
Response times for service call: Up to 7 working days. Response times for a severe service call: 24 hours.
Monitoring system to check accessibility of the site for discrepancies and gaps.
Ongoing operation of the website (after module implementation is complete) is solely your responsibility. In the case of adding new components/templates to the website, it is possible to get future accessibility services. Such services may be subject to additional fees.
Please note that if you acquired the Free Plan and/or the Premium Plan (other than the Enterprise Plan), and have not purchased maintenance services in addition to a license to use the accessibility solution under one of the Plans, the Company has or shall have no obligation to provide you with such Maintenance Services.
GENERAL GUIDELINES FOR CUSTOMER TO MEET REGULATORY OBLIGATIONS
Please note: the following table is provided for your convenience only, and under any circumstances does not constitute any legal advice and/or otherwise.
If you have questions or concerns about the privacy aspects of our Services or would like to make a complaint, please contact using the form below.