TERMS OF SERVICE
Also see:
AGREEMENT BETWEEN CUSTOMER AND WEBCORE DESIGNS
These are the terms and conditions (TOS) pursuant to which WebCore Designs
(WebCore, we, us, or our) agrees to provide certain products to you, and which
govern the rights and responsibilities between WebCore and the entity purchasing,
or using, those products (Customer, you or your). By using, purchasing or
accessing WebCore’s products, you agree to be bound by this TOS, our
Acceptable Conditions of Use Policy (ACUP), Legal Notice, Level of Service
Agreement, Privacy Policy, and Terms of Use Agreement, each of which is incorporated
into this TOS by this reference. We both agree that WebCore’s provision of
products to you, and your continued use of them, whether such a use is directly
with WebCore, or as a third party user of our products, represent an agreement to
be bound by the TOS. It is your obligation to review this TOS and ensure you are
able to comply with it.
1. Ownership
The individual or entity listed in our records as the “technical contact”
is considered by us to be the owner of your account. It is your responsibility
to update your records should this individual change, or should you wish to have
our records reflect a different individual or entity as the owner.
You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. On occasion, we may need to communicate with you by e-mail about our Services. You agree to maintain a working e-mail address that is monitored daily. We have no responsibility, or liability, for interruptions in the Service, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information.
You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. On occasion, we may need to communicate with you by e-mail about our Services. You agree to maintain a working e-mail address that is monitored daily. We have no responsibility, or liability, for interruptions in the Service, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information.
2. Term
The “Effective Date” of this TOS will be the day reflected on your
invoice, or when you click “I Accept.”
The “initial term” will begin on the Effective Date, and is for the period you selected on your order. Following the initial term, this TOS will renew for the same amount of time as the initial term. This is the “renewal term”. These are collectively referred to as the “Term.”
The “initial term” will begin on the Effective Date, and is for the period you selected on your order. Following the initial term, this TOS will renew for the same amount of time as the initial term. This is the “renewal term”. These are collectively referred to as the “Term.”
3. Payment
All information on pricing, features and terms can be obtained by contacting us at:
www.webcoredesigns.com. You are responsible for the fees and charges set out
on the Order Form and on our website. You may choose to purchase products and
services that are not included in the Service but which are offered for sale by
other parties through webcoredesigns.com (Third Party Services). Third Party
Services may be billed separately from the Service. You are responsible for all
taxes and fees associated with the Services which we are legally required or
permitted to collect from you. You are not responsible for taxes based on our income.
If you provide us with a credit card, we will bill all charges authorized by this TOS to that credit card. We reserve the right to bill you for fees charged to us by our credit card processor, plus a $250 reinstatement fee should the Services be disrupted because of your failure to pay, or make funds available to us.
Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Should the Service be suspended, for any reason, Fees will continue to accrue. Set up and domain name registration charges are not refundable for any reason.
Your initial order will be subject to our fraud screen. We are not obligated to provide Services to you should this screen identify your order as potentially fraudulent. During the term, we may periodically review your credit history. This review may consist of a review of your payment history with us, your broader credit history as reported elsewhere, and the amount of fraud reported to us as originating with your account. You consent to this review, and the disclosure of your credit history, at our option, to recognized credit agencies.
Unless otherwise set out on your Order Form, you agree to pay all charges by the due date indicated on the invoice ("Due Date"). You will pay us interest on payments made following the Due Date at the rate of 1.5% per month or the maximum rate allowable by law. You may be assessed a processing fee on late payments, at our sole discretion, if we incur administrative and/or legal costs associated with your late payment. This fee is $25.
If you provide us with a credit card, we will bill all charges authorized by this TOS to that credit card. We reserve the right to bill you for fees charged to us by our credit card processor, plus a $250 reinstatement fee should the Services be disrupted because of your failure to pay, or make funds available to us.
Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Should the Service be suspended, for any reason, Fees will continue to accrue. Set up and domain name registration charges are not refundable for any reason.
Your initial order will be subject to our fraud screen. We are not obligated to provide Services to you should this screen identify your order as potentially fraudulent. During the term, we may periodically review your credit history. This review may consist of a review of your payment history with us, your broader credit history as reported elsewhere, and the amount of fraud reported to us as originating with your account. You consent to this review, and the disclosure of your credit history, at our option, to recognized credit agencies.
Unless otherwise set out on your Order Form, you agree to pay all charges by the due date indicated on the invoice ("Due Date"). You will pay us interest on payments made following the Due Date at the rate of 1.5% per month or the maximum rate allowable by law. You may be assessed a processing fee on late payments, at our sole discretion, if we incur administrative and/or legal costs associated with your late payment. This fee is $25.
4. Termination
Either party may terminate the Service by providing written notice to the other
no later than 30 days before the expiration of the Initial Term or Renewal Term
for that particular Service. Your termination notice must be provided to us at
this address: WebCore Designs, 4546 E. Ashlan Ave., #3202, Fresno, CA 93726
We reserve the right to terminate this TOS for a violation of it, including any agreements incorporated by reference. We may also terminate this TOS upon your failure to pay the Fees.
One party may also terminate this TOS upon the occurrence of a material breach, which has not been cured by the other party within 30 days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.
In certain cases, this TOS may be terminated by you within a defined period of time for any reason, or no reason at all (“Guarantee”). Any time provisions of this Guarantee begin to elapse on the Effective Date and are calculated on a calendar day basis. A Guarantee only applies during the Term and does not apply to any Renewal Terms. Should you purchase additional Services, the Guarantee only applies to the new Services. Non-recurring charges, as defined below, are never subject to the Guarantee.
Upon termination or expiration, your account will be closed. We have no responsibility to forward e-mail, or other communications, for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your e-mail or other communications.
We reserve the right to terminate this TOS for a violation of it, including any agreements incorporated by reference. We may also terminate this TOS upon your failure to pay the Fees.
One party may also terminate this TOS upon the occurrence of a material breach, which has not been cured by the other party within 30 days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.
In certain cases, this TOS may be terminated by you within a defined period of time for any reason, or no reason at all (“Guarantee”). Any time provisions of this Guarantee begin to elapse on the Effective Date and are calculated on a calendar day basis. A Guarantee only applies during the Term and does not apply to any Renewal Terms. Should you purchase additional Services, the Guarantee only applies to the new Services. Non-recurring charges, as defined below, are never subject to the Guarantee.
Upon termination or expiration, your account will be closed. We have no responsibility to forward e-mail, or other communications, for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your e-mail or other communications.
5. Additional Services
WebCore may offer a number of services designed to assist you in the use and operation
of your hardware and software. These services are provided at an additional cost,
and pursuant to various contract addenda. We may terminate this agreement, at our
sole and exclusive option, should your requests for support exceed those typically
experienced by us for similarly situated customers.
6. Consulting
During the term, we may provide certain consulting services to you. These
consulting services are set out on your order form (“Consulting”).
Consulting is provided on a best efforts basis, and to assist you in using the
Services. It is not a substitute for understanding the operation of the Services.
It is your obligation to ensure that your employees and/or agents have sufficient
technical expertise to understand how to implement the Service. Any Consulting is
governed by the terms of this TOS.
Information you provide to us, and our responses, related to the Consulting is not confidential. We may use this information, as well as aggregate information gleaned from the operation of our business in general, to improve, or create new products. We shall be the exclusive owners of this intellectual property. You waive any rights you may hold in this intellectual property, and assign all right, title and interest in it to us.
Information you provide to us, and our responses, related to the Consulting is not confidential. We may use this information, as well as aggregate information gleaned from the operation of our business in general, to improve, or create new products. We shall be the exclusive owners of this intellectual property. You waive any rights you may hold in this intellectual property, and assign all right, title and interest in it to us.
7. Domain Names
During the sign up process you will be offered various options to administer your
domain name. Domain name registration is completed by a third party. We are not
responsible for any acts of the registrar. If you chose to have us named as your
administrative contact, we will re-register your domain name prior to its expiration,
at our then current registration fee. In order to register your domain name, the
credit card we have on file for your account must be active, and capable of being
charged for the registration fee. Should your credit card be declined, for any
reason, we have no responsibility to contact you regarding the expiration, and
possible loss, of your domain name.
8. IP Addresses
We may provide you with an IP address, or addresses. We retain ownership of these
IP addresses and may change them at any time. Upon termination of this Agreement,
you will not have the ability to transfer these addresses. These addresses may not
be assigned or transferred, and are recycled by us on termination of your use of the
Service. WebCore may, in our sole discretion, change these addresses.
9. Reasonable Use
We have determined what constitutes reasonable use of the Services. These
standards are based on typical customer use of our network, for similar services
and products. It is your obligation to monitor the use of the Services to ensure
that there are not unusual spikes and peaks in your bandwidth or disk usage.
Should your use of our network and/or products exceed the limits described above,
you will incur additional charges for that use. These charges will apply regardless
of whether you initiated the additional use, or it was caused by a third party.
10. Licenses, warranties, limitation of warranties, and
limitation of liability.
We grant to you a non-exclusive, non-transferable, worldwide, royalty free license
to use technology provided by us solely to access and use the Services. This
license terminates on the expiration or termination of this TOS. Except for the
license rights set out above, this license does not grant any additional rights
to you. All right, title and interest in our technology shall remain with us or our
licensors. You are not permitted to circumvent any devices designed to protect our,
or our licensor’s, ownership interests in the technology provided to you.
In addition, you may not reverse engineer this technology.
Any license provided to you, is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this Agreement and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
You are required to have licenses necessary for you to use the Services. You agree to indemnify and hold us harmless for claims made against us based on your failure to have these licenses.
Any license provided to you, is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this Agreement and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
You are required to have licenses necessary for you to use the Services. You agree to indemnify and hold us harmless for claims made against us based on your failure to have these licenses.
11. Warranties
We each warrant to the other that: (i) we have the power, authority and legal
right to enter into this Agreement; and (ii) we have the power, authority and
legal right to perform our obligations under this Agreement and all incorporated
provisions.
For each Service we provide, we warrant that we will perform in a competent manner.
You represent and warrant to us that: (i) you have the experience and knowledge necessary to use the Services; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet; (iii) you will provide us with material that may be implemented by us to provide the Services without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the service to take advantage of the Service, regardless of whether we provide Consulting to you; (v) that you understand that you may not be able to access location based services, such as “911” emergency calls, using the Service; (vi) that in entering into this TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (vii) that you will make back up copies of your data even if you purchase “back up” services from us; and/or (viii) that you will pass through the terms of our ACUP to your customers in your agreements with them.
You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or which may be accessed or transmitted using the services. You also warrant that to the extent you do business with other parties using the services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
For each Service we provide, we warrant that we will perform in a competent manner.
You represent and warrant to us that: (i) you have the experience and knowledge necessary to use the Services; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet; (iii) you will provide us with material that may be implemented by us to provide the Services without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the service to take advantage of the Service, regardless of whether we provide Consulting to you; (v) that you understand that you may not be able to access location based services, such as “911” emergency calls, using the Service; (vi) that in entering into this TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (vii) that you will make back up copies of your data even if you purchase “back up” services from us; and/or (viii) that you will pass through the terms of our ACUP to your customers in your agreements with them.
You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or which may be accessed or transmitted using the services. You also warrant that to the extent you do business with other parties using the services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
12. Disclaimers and Limitations of Liability
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS
EXPRESSLY SET OUT IN PARAGRAPH 12, WEBCORE HAS NOT, AND DOES NOT, MAKE ANY
WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT
LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. WEBCORE DOES NOT WARRANT THAT
THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR
OTHER HARMFUL COMPONENTS. WEBCORE IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY
LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR
STORED BY YOU OR AN END USER VIA THE SERVICE PROVIDED BY US. WEBCORE SPECIFICALLY
DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES,
REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY WEBCORE. NO
WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO WEBCORE SHALL BE PASSED THROUGH TO
YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM WEBCORE, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW WEBCORE TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO [90] DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDTIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
IN NO EVENT WILL WEBCORE’S LIABILITY HEREUNDER EXCEED THE AGGREGAGE FEES ACTUALLY RECEIVED BY WEBCORE FROM CUSTOMER FOR THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM WEBCORE SHALL BE INTERPRETED TO INCLUDE WEBCORE’S EMPLOYEE’S, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH WEBCORE.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD WEBCORE OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WEBCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS WEBCORE’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM WEBCORE, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW WEBCORE TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO [90] DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDTIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
IN NO EVENT WILL WEBCORE’S LIABILITY HEREUNDER EXCEED THE AGGREGAGE FEES ACTUALLY RECEIVED BY WEBCORE FROM CUSTOMER FOR THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM WEBCORE SHALL BE INTERPRETED TO INCLUDE WEBCORE’S EMPLOYEE’S, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH WEBCORE.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD WEBCORE OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WEBCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS WEBCORE’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
13. Indemnification
You agree to indemnify, defend and hold harmless WebCore and its parent,
subsidiary and affiliated companies, and each of their respective officers,
directors, employees, shareholders and agents (each an "indemnified party"
and, collectively, "indemnified parties") from and against any and
all claims, damages, losses, liabilities, suits, actions, demands, proceedings
(whether legal or administrative), and expenses (including, but not limited to,
reasonable attorney's fees) threatened, asserted, or filed by a third party
against any of the indemnified parties arising out of or relating to
(i) your use of the Services (ii) any violation by you of the ACUP;
(iii) any breach of any of your representations, warranties or covenants contained
in this TOS; or (iv) any acts or omissions by you. The terms of this section
shall survive any termination of this TOS. For the purpose of this paragraph
only, the terms used to designate you include you, your customers, visitors to
your website, and users of your products or services, the use of which is
facilitated by us.
WebCore shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Service infringes any issued U.S. patent. This indemnification provision is expressly limited to the Service which is fully owned by WebCore. It does not extend to products or services provided by third parties even if incorporated into the Service. If set out in its agreements with third-party suppliers, WebCore shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying WebCore promptly in writing of the claim and giving WebCore full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in WebCore’s opinion is likely to occur, you agree to permit WebCore, at its option and expense, either to: (i) procure for you the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate WebCore’s obligations (and your rights) under this TOS with regard to such Service and refund to you the price originally paid by you to WebCore for the Service, or the Fee actually received by WebCore from you for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
WebCore shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Service infringes any issued U.S. patent. This indemnification provision is expressly limited to the Service which is fully owned by WebCore. It does not extend to products or services provided by third parties even if incorporated into the Service. If set out in its agreements with third-party suppliers, WebCore shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying WebCore promptly in writing of the claim and giving WebCore full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in WebCore’s opinion is likely to occur, you agree to permit WebCore, at its option and expense, either to: (i) procure for you the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate WebCore’s obligations (and your rights) under this TOS with regard to such Service and refund to you the price originally paid by you to WebCore for the Service, or the Fee actually received by WebCore from you for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
14. Notices
Termination notices must be sent to us in the manner set out above.
All other notices must be sent in one of the following manners (i) by a
recognized express carrier using delivery confirmation; or (ii) by facsimile
in which both the broadcasting machine and receiving machine date stamp each page
of a transmitted document. We reserve the right to contact you by e-mail regarding
issues related to your account and this contract, other than material breaches and
our termination of this Agreement.
All notices to us shall be sent as follows:
Copies of all legal notices:
WebCore Designs
Attention: Legal Notices
4546 E. Ashlan Ave, #3202
Fresno, CA 93726
E-mail: info@webcoredesigns.com
All notices to us shall be sent as follows:
Copies of all legal notices:
WebCore Designs
Attention: Legal Notices
4546 E. Ashlan Ave, #3202
Fresno, CA 93726
E-mail: info@webcoredesigns.com
15. General
- A.
CHOICE OF LAW, JURISDICTION AND FORUM
This Agreement shall be governed by the laws of the State of California without regard to its choice of law rules. The parties specifically disclaim the application of the United Nations Convention for the International Sale of Goods. State or Federal courts located in the City of Fresno, County of Fresno, State of California shall have sole and exclusive jurisdiction over this Agreement. All actions relating to this Agreement shall be brought in the appropriate state or federal court sitting in the district for the city set out above. The parties expressly agree that jurisdiction is proper in the court set out in this paragraph. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this TOS or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court.
- B.
FORCE MAJEURE
Other than obligations regarding payments or confidentiality, neither party shall be in default or otherwise liable for any delay in or failure to perform under this Agreement if such a delay or failure is caused by an event beyond its reasonable control. Events beyond a party’s reasonable control include, but are not limited to, any act of God, any act of a common enemy, the elements, earthquakes, floods, fires, epidemics, inability to secure products or services from other persons, entities or transportation facilities, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party’s employees, agents or contractors. Such a delay or failure shall not constitute a breach of this TOS. Lack of funds shall not constitute a reason beyond a party’s reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than [ten] days from the beginning of the event.
- C.
TRANSFER AND ASSIGNMENT
You may not sell, assign or transfer any of your rights or obligations under this TOS without our prior written consent. We reserve the right to transfer services we provide to you, or assign this Agreement, at any time, without your consent or knowledge. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
- D.
WAIVER
Any failure or delay on our part in exercising any of the rights or powers given to us in this TOS shall not operate as a waiver of such a right or power, or affect our right to exercise the same or any other right or power at a later date.
- E.
SEVERABILITY
Should any paragraph or aspect of this TOS be determined to be contrary to law, or deemed unenforceable, the remainder of the TOS shall be interpreted in such a manner as if the omitted portions had not been included.
- F.
NO AGENCY
This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
- G.
SURVIVAL
The following paragraphs shall survive the termination or expiration of this Agreement: 10, 11, 12, 13, 14, and 15 a, d, e and g.
This Notice was produced and posted on WebCore Designs' web site on October 19, 2009.
WebCore Designs reserves the right to modify or amend this Notice at any time and for
any reason. If you have questions about this notice, please e-mail us.
Copyright © 2009 WebCore Designs. Any rights not expressly granted herein are reserved.
Copyright © 2009 WebCore Designs. Any rights not expressly granted herein are reserved.