ATTENTION: THIS AGREEMENT GOVERNS THE SERVICES PROVIDED TO YOU BY U2THEM, LLC. AND CONTAINS LIMITATIONS ON WARRANTIES AND/OR REMEDIES.
This Agreement is made between U2THEM, LLC, (“we” or “us”) and you. PLEASE READ IT CAREFULLY BEFORE ACCEPTING THE LICENSE AND USING U2THEM, LLC Services.
BY USING OUR SERVICES YOU ACKNOWLEDGE, ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT IN CONNECTION WITH YOUR USE OF THE U2THEM, LLC SERVICES AND MARKETING TOOLS PROVIDED FOR YOUR BENEFIT AND/OR USE.
We reserve the right to change the terms of this Agreement at any time by publishing the revised Agreement for your review and acceptance, or rejection, as you have accepted or rejected this Agreement when you commenced services.
A variety of services are available to you depending upon the Service Level you elect. The specific services and fees associated with each Service Level are set forth per individual proposal.
All such services are described and priced out in proposals. All items will be separately described, priced, and agreed to by you and us prior to commencement of such work or services. All such services provided shall be governed by this Agreement whether or not such service provided is specifically described herein.
WE ARE NOT RESPONSIBLE for the functionality of nor defects in any third-party software or websites.
The fees for the various Service Levels and additional services are set forth in individual proposals, specifically agreed to in writing. Payment for all services are due in advance on the anniversary day each month of the start of services to you.
Your Responsibilities. You are solely responsible for the accuracy of the information you post or provide to us to post on your behalf. You are responsible for compliance with all laws applicable to said posts, including copyright laws, media licensing, modeling releases, etc.
You are responsible for maintaining current and accurate account information, including bank and/or credit card information and expiration date.
If your credit card, or ACH payment, is rejected for any reason, there will be a service charge assessed at the current amount as described in the proposal.
You represent to U2Them and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to us are owned by you, or that you have permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend U2Them and its subcontractors from any claim or suit arising from the use of such elements furnished by you.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. You agree that you are solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend U2Them and its subcontractors from any claim, suit, penalty, tax, or tariff arising from your exercise of Internet electronic commerce.
Confidentiality. We and you agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. We and you agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. We and you agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, We and you acknowledge and agree the obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
Software EULA. During the term of this Agreement, you have a limited, revocable, non-transferable and non-exclusive license to use the U2Them software tools. The Software (including any images, icons, graphics, animations, video, audio, music, and text incorporated into the Software) is protected by copyright laws. You may not make copies of the Software. You may not give copies to another person, or duplicate the Software by any other means, including electronic transmission. You may not copy the printed materials accompanying the Software, nor print copies of any user documentation. The Software contains trade secrets, and in order to protect them you may not decompile, reverse-engineer or modify all or any portion of the software, or rent, lease, sell or create derivative works of the software.
Marketing Telephone Numbers. You do not own the special marketing telephone numbers provided by U2Them and utilized to promote your office on your social media sites. Upon termination of this Agreement, those numbers may not be ported by you and remain the property of U2Them.
Indemnification. You hereby agree to defend, indemnify and hold U2THEM, LLC, its officers, members and assigneds, from and against any and all claims that may be asserted by anyone, including governmental agencies, arising from your use of the U2Them tools, the content posted on your site provided by you and/or the use of services and/or products offered by you to your customers.
Security and Proper Use. You shall be responsible to ensure that each of your employees that access the Software will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the Software consistent with your rules; and (e) use the Software in accordance with the terms and conditions of this Agreement.
Suspension of Service. We reserve the right to deny, suspend or revoke access to our server and U2Them services, in whole or in part, if we believe you or any of your employees that use the software are in breach of this Agreement or are otherwise using or accessing our server and the hosted software inconsistent with the terms and conditions of this Agreement.
Right to Continue Service. All payment shall be made on the anniversary date each month of the start of your service in advance of such service for the month. The start of your service shall be the date U2Them generates an email to you to notify you of your account activation. All payments shall be made by VISA, MASTERCARD or ACH draft. If a credit card or your ACH draft is declined or rejected, for any reason whatsoever, we will present a second time for payment, but if rejected a second time, we reserve the right to suspend your service without notice to you until payment is received (please note, suspension of service will involve, among other things, suspension of marketing telephone lines and no access by the public to one or more of the social media sites and blogs that are provided by U2Them). You will be contacted by us as soon as is reasonably possible in the event of payment failure, but such contact may occur AFTER service has been suspended. Service restart after a suspension will not change your service month. By accepting this agreement and providing the required credit card information, you are authorizing us to charge your credit card each month for services at the then published rate for such services which are described in proposal. In addition to any payment decline fee that may be accessed, in the event your account is suspended, a service reactivation fee of $100 may also be assessed and paid before services are restarted.
Refunds & Disputes. All services rendered by U2Them are non-refundable. This includes, but is not limited to: setup fees, one-time fees, monthly service fees, upgrade fees, additional service fees, administrative fees, and late fees. You agree to resolve billing errors are instructed to open a billing ticket by emailing email@example.com. You also agree not to chargeback any credit card payments for services rendered. A chargeback of payment for services rendered will result in an additional charge of $150 and will be subject to collection by an authorized collection agency.
Availability. We shall use commercially reasonable efforts to keep the servers and the Software available on a 24 hour a day, 7 day a week basis, subject to call black-out periods as posted, scheduled downtime for maintenance purposes, unscheduled maintenance and systems outages. You understand that we are not responsible for the Internet, your access to the Internet or the operation of your hardware and we shall not be liable to you if you cannot use our services for any of those reasons. You also understand that we are not responsible for service outages by third parties, such as Facebook, YouTube, Twitter, Pinterest, LinkedIn, the communication company providers of your marketing numbers, or any other unnamed outsourced third-party providers. In addition, if you cannot use our server or the Software for any other reason, our liability to you for damages of any kind will not exceed an amount equal to the fees paid by you to us for the month in which you are unable to use the Software. Our liability to you is limited further by the capitalized paragraphs below, please read them carefully.
Termination. In addition to immediate termination for non-payment, we may terminate our service to you for any reason, upon 7 days’ prior email notice to you at the email address we have on file for you and if you have changed or not provided us with a valid email address, service will be terminated after our email to you even though you will not have received that notice and will not know that service is being terminated. You may terminate our service for any reason, upon 7 days’ notice. Termination by you is for future service, under no circumstances shall you be entitled to a refund for the month in which you terminate services, even if you do not use U2Them Services for that month.
If we notify you of termination of service, our notice will specify when service will terminate, but in no event (other than system failures) will you have less than 7 days prior notice (counting the day the email is sent).
Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, WE MAKE NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING OR RELATING TO U2THEM AND ANY OF ITS SERVICES AND/OR ACCESS TO OR USE OF OUR SERVER UNDER THIS AGREEMENT. WE SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WE ALSO DO NOT GUARANTEE THAT YOUR ACCESS TO THE SERVER, THE SOFTWARE OR OTHER SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, ERROR FREE OR SECURE. WE DO NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT OF INTERNET WEBSITES OR OTHER DATA RECEIVED BY YOU VIA THE INTERNET. YOU ARE FULLY RESPONSIBLE FOR COMPLIANCE WITH ALL LAWS AFFECTING YOUR PRACTICE, INCLUDING HIPAA.
IN NO EVENT UNDER ANY CIRCUMSTANCES WILL WE BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO YOUR CONTENT OR YOUR DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF OUR SERVER OR THE SOFTWARE OR OTHER DELIVERABLES PROVIDED OR SERVICES PERFORMED UNDER THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, WE WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SERVICES HEREBY CONTEMPLATED, OTHER DELIVERABLES OR OTHER SERVICES PERFORMED UNDER THIS AGREEMENT. OUR LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY YOU TO US FOR YOUR ACCESS AND USE OF THE SERVER, SOFTWARE AND SERVICES UNDER THIS AGREEMENT FOR THE MONTH IN WHICH THE CLAIM ACCRUED.
Governing Law; Jurisdiction; Dispute Resolution with Third Party Licensors. This Agreement will be interpreted and construed in accordance with the laws of the State of New Mexico, without regard to conflict of law principles. All disputes arising out of this Agreement shall be brought only in the district or federal courts located in the State of New Mexico, County of Bernalillo. YOU CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN BERNALILLO COUNTY OF THE STATE OF NEW MEXICO. You acknowledge and agree that, for any dispute by you against a Third Party Licensor or website and not against us, you shall pursue your dispute directly against Third Party Licensor without naming us as a party to that dispute.
Sales or Gross Receipt Tax
If sales or gross receipt or similar tax is required to be assessed in your state, it will be added to the amounts shown above for services. If sales tax is not required to be charged when you start this service, but is required to be charged at a later time applicable sales tax will be added without prior notice to you.
Credit Card and ACH Charges
In the event our merchant account provider or financial institutions charges us an extra fee because the credit card you provided was rejected, or accepted but with an exception that results in an additional service charge, such as providing an address that does not verify as the billing address on the card, or for any other reason not due to our fault, we will pass that extra charge through to you, in addition to the current service fee for a rejected credit card. In the event your bank rejects our ACH draft for payment, for any reason not our responsibility, you will be charged a service fee for said rejection.