FMG SUITE, LLC TERMS OF SERVICE
FMG SUITE TERMS OF SERVICE
Revised March, 2022
Welcome to the FMG Suite Terms of Service (this “Agreement”). This Agreement governs your access to and use of our services described on www.fmgsuite.com (the “Company Website”), our affiliate websites and herein, and includes both Software Services and Professional Services, each as defined below (collectively, the “Services”). This Agreement consists of (i) the Order (as defined below), (ii) the terms of service herein, and (iii) any applicable Service Attachment(s) located at https://www.fmgsuite.com/legal/serviceattachments. We ask that you read this Agreement carefully before pressing or clicking the “I accept” button.
BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR BY ACCESSING OR USING THE SERVICES, THE INDIVIDUAL OR ENTITY THAT IS CLICKING ON THE “I ACCEPT” BUTTON AND/OR ACCESSING OR USING THE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND AGREES TO BE BOUND BY THE SAME. IN THIS RESPECT, CLICKING THE “I ACCEPT” BUTTON CONSTITUTES YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT AND CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND FMG SUITE, LLC (THE “COMPANY,” “WE,” “US,” OR “OUR”) TOGETHER REFERRED TO AS THE “PARTIES” AND EACH INDIVIDUALLY AS A “PARTY.” THE TERMS “YOU,” “YOUR,” AND “YOURS,” REFER TO THE PARTY ORDERING AND/OR USING OR ACCESSING OUR SERVICES, INCLUDING AUTHORIZED USERS. BY EXECUTING THIS AGREEMENT VIA THE “I ACCEPT” BUTTON AND/OR ACCESSING OR USING THE SERVICES ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND THE TERM “YOU,” “YOUR,” AND “YOURS” SHALL REFER TO YOU AND SUCH ENTITY.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, PRESS “I DO NOT ACCEPT” AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY OF THE SERVICES.
This Agreement is effective on the date you indicate your acceptance of this Agreement, whether by clicking “I Accept” online or by signing a digital or paper Order (“Effective Date”), and amends, restates and supersedes any prior agreement relating to your use of our services and retroactively applies to all services we have provided to you since your first use of the Company Platform (as defined below).
We may amend this Agreement from time to time in our sole discretion, and when we do, we will notify you of the amendments at the email address associated with your account, and, if you have an arrangement by which a third party pays for the Services on your behalf, we will also notify the third party. Your continued use of the Services after notification of such amendments constitutes your acceptance of the Agreement as amended. If you do not agree, your sole remedy is to terminate the Agreement and cease using our Services.
note that disputes about this agreement or relating to the Services generally must be resolved by binding arbitration and on an individual basis only. See Section 11 for more detail.
Our promise: We will deliver the Services you order in a professional manner using commercially reasonable efforts, as outlined in this Agreement. If you are unsatisfied with the Services we provide, please notify us immediately.
1. OUR SERVICES
1.1 Orders for Services. Pursuant to these Terms of Service, you may order from the Company licenses to access and use certain Software Services and Professional Services by placing an order on the Company Website or by executing a written Order Form referencing this Agreement (each an “Order”). Upon your submission of an Order, including your execution of an Order Form, any Services referenced in such Order shall be deemed included under, and subject to, the terms of this Agreement. The Order shall be incorporated into the terms of this Agreement by this reference.
“Affiliate” of a party means any entity that the party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity.
“Authorized User(s)” means an individual natural person, whether an employee, business partner, contractor, or agent of you or your Affiliates, who is registered by you to use the Services. An Authorized User must be identified by a unique email address and user name and two or more persons may not use the Services as the same Authorized User. An Authorized User will only be allowed to use the Software Services if such user is under confidentiality obligations with you at least as restrictive as those in this Agreement and is accessing or using the Services solely to support your and/or your Affiliates internal business purposes.
“Software Services” refers to those software products and services specified in the Order and any applicable Service Attachment that are made available to you and Authorized Users through our platform (the “Company Platform”). Subject to the Order and any applicable Service Attachment, Software Services may include, without limitation, one or more of the following: a website hosted on the Company Platform (“your Website”), email marketing tools, including automated email campaigns and manual email sharing tools (“Email Tools”), print marketing tools, including automated and manual direct mail campaigns and tools (“Direct Mail Tools”), social media marketing tools, including automated social campaigns and manual social media sharing tools (“Social Tools” and together with Email Tools and Direct Mail Tools, “Marketing Tools”), the contact management system (“Contact System”), presentations (“Presentations”), the mobile application and portal through which your Website and the Software Services are accessed and managed (the “Platform Admin”), the blog and event tools (“Blog”), Content (as defined below), applications and other tools and services that may be added by the Company or its partners from time to time, collectively and individually.
“Professional Services” refers to any professional, consulting, or other services specified in the Order and any applicable Service Attachment that are provided to you and Authorized Users and/or made available to you and Authorized Users by the Company outside of the Company Platform related to your use of the Software Services. Subject to the Order and any applicable Service Attachment, the Professional Services may include, without limitation, one or more of the following: any setup services such as our white glove transfer, concierge, and exclusive services, copy or blog writing, video creation or other similar services, including but not limited to our Elevate marketing consulting services, branding, copywriting, and logo services, and SEO, SEM (PPC, retargeting, social reach) services, collectively and individually. Professional Services may be performed by the Company or by third party service providers, and may be subject to additional charges or fees.
The specific features and functionality of our Services are dynamic and may change from time to time. We reserve complete and sole discretion with respect to the operation of our Services. We reserve the right to change terms and warranties without notice. We also reserve the right to modify, withdraw, suspend, or discontinue, temporarily or permanently, any functionality or feature of our Services at any time, with advance notice where possible, all without liability to you, except where prohibited by law, for any interruption, modification, discontinuation of the Services or any functionality or feature thereof.
(b) Right to Access and Use the Software Services. During the period of this Agreement (the “Term”), we hereby give you and your Authorized Users permission to use and access those Software Services you have ordered in the Order solely for your own internal business use, subject to the terms and conditions of this Agreement. You are responsible for ensuring that you have the appropriate hardware, software, and connectivity to enable the Software Services to function as provided under this Agreement. The provision of Software Services frequently requires you to provide us materials, input and feedback (“Input”). You may access and control the Software Services through the Platform Admin and you are responsible for exercising control over the Software Services through the Platform Admin. For example, (i) you may select or deselect the Content that is on your Website or shared through the Marketing Tools, (ii) you may select the contacts that receive any email communications through Email Tools and the contacts that receive any direct mail communications through Direct Mail Tools (“Contacts”), and (iii) you may control the frequency and type of Content that is posted on your social media accounts through Social Tools. You remain fully liable for and responsible for your Contacts and your social media accounts and your compliance with laws regarding the same. Those are just a few of the examples of the ways you can control the Software Services. If you are a financial professional or other professional advisor, you also authorize the Company to give access to the Platform Admin to your broker/dealer or a third party marketing organization (the “Agent”), as identified and designated by you to the Company at the time you sign up for our Services or at a later date, to use the Platform Admin and the Software Services on your behalf. We are not responsible for any actions that your Agent may take on your behalf. You also authorize us to respond to information requests from Agents or other regulatory bodies, as necessary, which may include the disclosure of information to such Agents or other governmental, legal, or regulatory bodies concerning your use of the Services. The Company has no obligation to notify you in advance of any such disclosure. As between you and the Company, you remain fully liable for and responsible for any actions taken on your behalf by your Agent. If at any time during the Term you would like to remove and/or add a new Agent, please contact us and we will update the Agent’s access to the Platform Admin accordingly.
1.3 Professional Services. We may have provided or will provide Professional Services in connection with the Software Services, including but not limited to an initial build of your Website and additional services related to creating Content on your Website, such as concierge and exclusive setup services, copy writing, blog writing, website change orders, and video live services, among others. Such Professional Services frequently require you to provide us materials, input and feedback (also, “Input”). The quality and timeliness of the Professional Services is often contingent upon the quality and timeliness of your Input. You agree to remain engaged throughout the process of any Professional Services and to provide us the Input we need in a timely manner. We are not responsible for any delay in our provision of Professional Services that is due to your delay in providing us Input.
1.4 Other Restrictions. You may not (and will not permit a third party to) (i) attempt to obtain a copy of any element of the Software Services or the Company Platform, (ii) reverse compile, reverse engineer, reverse assemble or otherwise attempt, directly or indirectly, to obtain or create source code for any element of the Software Services or the Company Platform, (iii) modify or create derivative works of any element of the Software Services or the Company Platform, or (iv) sub-license, transfer, distribute, sell or resell any Software Services provided by the Company hereunder. In addition, you may not give access to the Software Services or the Company Platform to any third party or additional users inside or outside of your organization, unless they are Authorized Users and also under agreement with the Company. You will not use the Services or the Company Platform for any purpose that is unlawful or prohibited by the terms of this Agreement. You may not use the Services in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Services or the Company Platform, or any part of the Company Platform, other accounts, computer systems or networks connected to the Services or the Company Platform, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Services or the Company Platform or any activities conducted on the Company Platform. You may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services or the Company Platform, any features that prevent or restrict use or copying of any content accessible through the Services or the Company Platform, or any features that enforce limitations on the use of the Services or the Company Platform or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services or the Company Platform. You agree neither to modify the Company Platform in any manner or form, nor to use modified versions of the Services or the Company Platform, including (without limitation) for the purpose of obtaining unauthorized access to the Services or the Company Platform. You agree that you will not use any robot, spider, scraper, or other automated means to access the Services or the Company Platform for any purpose without our express written permission or bypass any robot exclusion headers or other measures we may use to prevent or restrict access to the Services or the Company Platform.
1.5 Trial Usage. If you are accessing the Services for evaluation purposes, on a free trial basis, promotional offer, or other type of limited offer for use of the Services (“Free Trial”), you may be presented with additional terms and conditions when registering for a Free Trial, and any such additional terms and conditions are hereby incorporated into this Agreement by reference as a Service Attachment and are legally binding upon the parties. Any of Your Content (defined below) that you provide, and any configurations made by or for you, during the Free Trial may be permanently lost at the end of the Free Trial period unless you: (i) purchase a subscription for the same Services (up upgraded Services) as those covered by the Free Trial, or (ii) export Your Content before the end of the Free Trial. Notwithstanding any other provision of this Agreement, (i) your use of the Services is limited to the evaluation period, (ii) the Services are provided “AS-IS” without indemnification and, to the fullest extent permissible by law, without support, representation or warranty, express, implied or statutory, and the Company’s liability hereunder is limited to one hundred dollars ($100).
2.1 Content. The content that may appear in the Software Services (“Content”) is of three types: Your Content, Related Third Party Content, and the Company Content, in each case, as defined below. Content can be logos, trade names, service names, images, text, articles, infographics, blog posts, print marketing materials, videos, or any other type of material that may be displayed via or provided through the Software Services. The ownership of and responsibility for Content is governed by this Agreement.
2.2 Your Content. “Your Content” consists of (i) content from your prior non-Company website (“Your Prior Website Content”); and (ii) any Content provided to the Company by you (or any person on your behalf or through your account) in the course of using the Services, whether by email, by uploading such Content to the Software Services through the Platform Admin, or by any other method. Subject to the provisions of this Agreement, you hereby grant to the Company a non-exclusive, worldwide, royalty free, fully paid-up assignable and transferable right and license to copy, download, and use Your Content in connection with providing the Services to you. For the avoidance of doubt, such permission and authorization extends retroactively to any Professional Services provided to you previously. You warrant and represent that you own Your Content without any restriction or that you have a license to use Your Content in the manner contemplated by this Agreement. You are solely responsible for Your Content, including the accuracy and quality of Your Content, and the means by which Your Content was acquired. You warrant and represent that it does not and will not infringe upon the intellectual property rights of any third party when used in the manner contemplated by this Agreement. Importantly, you can remove any of Your Prior Website Content from the Software Services at any time through the Platform Admin. We reserve the right to remove or refuse to use, include, or host Your Content, including without limitation, any multimedia content or interactive applications, in the operation of our Services.
2.3. Related Third Party Content. “Related Third Party Content” consists of Content used in the Services that is provided directly to the Company by a third party with which you have a relationship, such as your broker/dealer, marketing organization or a third party service to which you are a subscriber. You remain fully responsible and liable for all Related Third Party Content provided to us on your behalf. The Company is not responsible for Related Third Party Content and disclaims any and all warranties related to such Third Party Content, including any warranty of non-infringement or fitness for a particular purpose.
2.4 Company Content.
(a) “Company Content” consists of Content used in the Services that is created by the Company or licensed by the Company from a third party, in digital and print format and may include but is not limited to sample/template emails, social media posts, print newsletters, events checklists and invitations (email/social/print), and practice management letters (e.g. letters to clients, employee checklists, etc.). All right, title, and interest in and to the Company Content is retained by the Company (or its licensors), provided, however, that, subject to the terms and conditions of this Agreement, we hereby grant to you a limited, personal, nonexclusive, nontransferable and nonassignable right and license to use the Company Content solely in connection with your use of the Software Services during the Term. You may not use the Company Content for any other purpose. Thus, although you will be allowed to use all the Company Content in the Software Services, you may not re-license, download, sell, rent, or use it for any other purpose. For example (without limitation), you cannot download from the Platform Admin an image we have provided for use on your Website or use the content from one of our articles in another publication without our prior written consent, which may be withheld in our sole discretion. You may request permission to use Company Content, subject to certain restrictions, pursuant to a separate Content Use Agreement entered into between you and the Company. The Content Use Agreement allows you to (i) copy or reproduce the Company Content in physical form (or as a downloadable file for email attachment), in its entirety, or excerpts thereof, for use in printed or printable materials or email attachments, such as brochures, newsletters or flyers, related to the marketing of your business to clients and prospects, and (ii) use or download the Company Content in digital format, in its entirety, or excerpts thereof, for use or uploading on another social media, email, website or a digital marketing platform that is not a direct competitor to the Company.
You acknowledge that we will aggressively enforce our intellectual property rights with respect to the Company Content to the fullest extent of the law, including, without limitation, the seeking of criminal prosecution.
(b) Liquidated Damages. If you (i) use any Company Content in any way that is not expressly authorized by this Agreement, or (ii) retain any Company Content past termination of this Agreement and continue to use such Company Content in breach of this Agreement, or (iii) materially breach your obligations under Section 2.4 above (any of (i)-(iii) is a “Company Content Breach“), you shall pay to the Company an amount equal to seventy-five percent (75%) of the monthly purchase price of the Services divided by thirty (30) for each business day a Company Content Breach continues (the “Liquidated Damages“). The Company and you intend that the Liquidated Damages constitute compensation, and not a penalty. The Company and you acknowledge and agree that the harm caused by a Company Content Breach would be impossible or very difficult to accurately estimate as of the Effective Date, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from a Company Content Breach. Your payment of the Liquidated Damages is your sole liability and entire obligation and our exclusive remedy for any Company Content Breach.
2.5 Content Transfer upon Termination. If this Agreement is terminated, the Company shall reasonably cooperate with you to assist you in transferring Your Content to a new website or a third party you designate in a format mutually acceptable to you and the Company. You shall pay the Company’s customary hourly charges for this assistance; and the assistance shall be rendered in good faith after the Company estimates the charges that will be payable for the assistance and after you pay the estimated charges, subject to any agreement between the Company and a third party paying for the Services on your behalf, if any. The Company’s duty in this regard shall cease fifteen (15) days after termination. You acknowledge that if you do not take action to accomplish the transfer, Your Content may no longer be available.
2.6 Important Financial and Other Disclosures. You acknowledge and agree that you will not receive, and we do not provide, any professional advisory services, or any investment advisory or financial planning services, including investment supervisory or investment management services, investment recommendations. The Company is neither a law firm nor accounting firm, and no portion of the Services, the Company Platform or Company Content should be construed as legal or accounting advice. It is your exclusive responsibility to review and evaluate the Company Content and to determine whether to accept or reject any portion thereof and correspondingly determine whether any professional advisor, investment adviser or investment advisory service is appropriate for your individual situation (of which we have and express no knowledge or opinion). We express no opinion as to whether any of the services offered by any professional advisor or registered investment adviser is appropriate for anyone’s investment portfolio, strategy, financial situation, or investment objective(s).
3. SERVICE AVAILABILITY; CLIENT INFORMATION; CAN-SPAM
3.1 Provision of Services. We will use commercially reasonable efforts to (a) make the Services available to you pursuant to this Agreement, (b) provide applicable Company standard support for the Services to you at no additional charge, and (c) use commercially reasonable efforts to make the Software Services available 24 hours a day, 7 days a week, except for: (i) planned downtime or scheduled maintenance, (ii) any unavailability caused by your acts or omissions including without limitation your delay in providing us with Your Content or Input, (iii) problems with your equipment, hardware or software not caused by our acts or omissions, (iv) telecommunications issues, internet connectivity issues, hosting service provider issues or network issues, (v) your breach of this Agreement, including but not limited to, any unavailability due to disconnection of the Services due to nonpayment or misuse by you, (vi) third party malicious activity, including but not limited to hackers, viruses introduced by third parties, denial of service attacks, or other malicious activity, and (vii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving our employees), Internet service provider failure or delay, Non-Company application (such as Amazon web services), or denial of service attack.
3.2 Security, Confidentiality, and Ownership of Client Information. You are permitted to upload/enter up to a maximum of 1,000 unique “contacts” (file containing a person’s name, email address, physical address, etc.), unless the Software Service you have ordered allows for more. You may upload, add to, or edit contacts on your own, at any time, without charge. The Company commits to handle and store all the contact information it receives from you that is contained in the Contact System (“Client Information”), including information regarding your social networking “connections,” “followers,” or other contacts activated through use of the Services, behind an industry standard secure firewall. Client Information does not include Your Content. All Client Information belongs to you and the natural persons who have provided such information using your Website, and the Company will make no claim to ownership of the Client Information. The Company will not use any of the Client Information for its own purposes or provide the Client Information to any third parties, except to comply with Applicable Laws, an investigation by a governmental authority or a subpoena. Notwithstanding the foregoing, the Company may use and publish anonymized data or metadata that is not identified with a specific natural person in order to assemble trends and other large-scale data for benchmarking, statistical generation and other commercial purposes.
3.3 Ownership of Client Relationship. The Company will not intentionally interfere with the relationships between you and your clients. You own, and will continue to own, all the rights to approach clients regarding any commercial relationship, and the Company will make no attempt to assert ownership over any client relationship.
4. CCPA COMPLIANCE
4.1 Definitions. The following definitions and rules of interpretation apply in this Section:
(a) “CCPA” means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General. Terms defined in the CCPA, including Personal Information and business purposes, carry the same meaning in this Agreement.
(b) “Consumer” means a natural person who is a California resident, as defined in Section 17014 of Title 18 of the California Code of Regulations, as that section read on September 1, 2017, however identified, including by any unique identifier.
(c) “Services” means hosting, maintaining, and provisioning access to the Software Services to you, and providing related support services, in addition to any other services described in this Agreement for which, in any of the foregoing cases, the Company receives or accesses Personal Information.
(d) “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Consumer or household and shall include the examples of Personal Information identified in Cal. Civ. Code Section 1798.140(o) of CCPA but not include data or information that is publicly available within the meaning of such section or that has been deidentified within the meaning of Cal. Civ. Code Section 1798.140(h) of CCPA.
4.2 Service Provider Relationship. You acknowledge and agree that the Company is acting as a Service Provider within the meaning of CCPA in connection with the Services.
4.3 Use of Personal Information. The Company, as a Service Provider, will not use Personal Information for any purpose not permitted by CCPA. The Company will not retain, use or disclose Personal Information for any purposes other than expressly specified herein, including, without limitation, performing the Services. As permitted by CCPA, the Company may aggregate, deidentify, or anonymize Personal Information, so that it no longer meets the Personal Information definition, and may use such aggregated, deidentified, or anonymized data for its own research and development purposes. The Company will not attempt to or actually re-identify any previously aggregated, deidentified, or anonymized data.
4.4 California Resident Personal Information Inquiries and Requests. The Company will comply with all reasonable instructions from you related to (i) questions or complaints received from Consumers regarding their Personal Information (each, a “Privacy Inquiry”) and (ii) any requests from Consumers exercising their rights in their Personal Information granted to them under CCPA (“Privacy Request”). If the Company is directly contacted with a Privacy Inquiry or Privacy Request, the Company will forward such inquiry to you. Unless otherwise permitted by CCPA, the Company will only take actions regarding a Privacy Inquiry or a Privacy Request pursuant to its legal obligations. At your written request, the Company will assist you at your expense in answering or complying with any Privacy Inquiry or Privacy Request within thirty (30) days of your written request.
5. WEBSITE DOMAINS
5.1 Domain Hosting Options. If you have ordered a website as part of the Software Services, you have three options for hosting the domain of your Website: (1) you may request us to purchase a domain and host it under our account with a third-party service; (2) you may keep your current domain but move the hosting of such domain into our account with a third-party service; or (3) you may keep your current domain hosting provider and bind certain DNS entries for your domain to our servers.
5.2 Domain Management. If you choose to have us host your domain under our account with a third-party service, you hereby license and authorize us to access and use your domain, including your domain name, during the Term. In addition, you acknowledge that we are providing this service to you as a courtesy, free of charge, and that we are not responsible for any interruption in service arising from our use of such third-party service to host your domain. We may also, at our sole discretion, provide you other domain-related services as a courtesy, such as helping you configure MX records for your email system or aliasing certain of your email addresses. We are not responsible for incorrect domain configuration, loss of your data such as email addresses, or other issues arising from such domain-related services we may provide you from time to time as a courtesy.
5.3 Domain Transfer upon Termination. If you choose to have us host your domain under our account with a third-party service, the Company shall reasonably cooperate with you to assist you in transferring your domain name to a server or account that you authorize upon termination of this Agreement. The Company’s duty in this regard shall cease fifteen (15) days after termination. You acknowledge that if you do not take action to accomplish the transfer, your domain name may no longer be available.
6. BILLING AND PAYMENT
6.1 Third-Party Arrangements. If you are accessing the Services through an arrangement by which a third party makes payment for you, your payment obligations will be to such third party. We will invoice the third party directly, and they will make payment to us; however, if the third party fails to make timely payment to us, we reserve the right to pursue payment and collections efforts directly against you. If you wish to terminate or make changes to the Services, you will need to work through the third party, who will make arrangements with us for termination of the Services or payment of any additional fees due for your changes to the Services.
6.2 Taxes. All fees are exclusive of applicable taxes, levies, and/or duties, including value-added taxes (“VAT”) imposed by taxing authorities. You are responsible for payment of all such taxes, levies, VAT, and/or duties, even if such amounts are not listed in the Agreement. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
(Sections 6.3 through 6.8 apply to you only if you are paying the Company directly.)
6.3 Payment and Interest. Except as expressly set forth in an applicable Order Form or in this Agreement, you will pay all fees set forth in the Order pursuant to the terms of this Agreement and you hereby authorize us to charge the credit card you indicate in the Order for such purpose. You hereby authorize the Company to setup your account within a monthly recurring billing system where your credit card will be billed on a monthly basis for all Services that are rendered on a recurring basis, such as certain of the Software Services. You hereby authorize the Company to bill your credit card on a one-time basis for all Services that are rendered on a one-time basis, such as certain of the Professional Services. The foregoing authorizations shall remain in force until cancelled by you in writing. Any additional provisions governing the amount and timing of payment, including the details related to recurring billing, will be indicated on an applicable Order Form when you sign up for Services. If you fail to make timely payment, the balance of any unpaid amount shall accrue interest at a rate of 1.5% per month, or the highest amount allowed by law, whichever is less.
6.4 Third-Party Processing. In order to protect the privacy and security of your credit information, we use the services of a third-party processor. You acknowledge that we contract with such third-party processor for these purposes and you hereby grant authorization to share information with such third-party processor as necessary for these purposes.
6.5 Recurring Billing. By submitting an Order for the Services, you authorize us to charge you a fee for your Initial Term (as defined in Section 8) as well as a recurring fee for each subsequent Renewal Term (as defined in Section 8). You also authorize us to charge you any other fees you may incur in connection with your use of the Services as described.
6.6 Pricing. Prices for our Services are generally set forth on our website at www.fmgsuite.com or in an Order. We reserve the right to change our prices at any time. We also reserve the right to increase our prices for any Services to which you are subscribed so long as we provide you notice delivered to the email associated with your account at least fifteen (15) days prior to the date on which such prices will increase, although, in most cases, we expect to be able to provide more advance notice.
6.7 Refunds. Unless otherwise indicated in an applicable Order Form, our fees and charges are non-cancellable and any payments made by you are nonrefundable. We may make exceptions in our sole and absolute discretion, and any such exceptions do not entitle you to any future discounts or refunds in the future for similar instances.
6.8 Payment Methods. You may update your payment method information by contacting our customer service department via phone or email as set forth on our website. If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, and you do not update your payment method information or cancel your account, you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated, including in the event you attempt to create a new account. This may result in a change to your payment billing dates. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to the Services, the Company Platform, your Website, or any portion thereof.
7. COMPLIANCE WITH LAWS; RESTRICTIONS
7.2 SEC and FINRA Compliance for Financial Professionals. If you are a financial professional, our Software Services facilitate approvals of Content by you and/or your broker/dealer prior to use of the Software Services. No failure or delay in the transmission of communications between you and your broker/dealer excuses you from this responsibility. We also cannot be held responsible for delays in approval by your broker/dealer. Only certain Company Content is subject to a no-action letter from FINRA. Other Content is not subject to a no-action letter, such as website copy and images and Content used in campaigns with time-sensitive content, such as the monthly market insight campaign. You are responsible for ensuring that all Content (including Company Content) used in the Software Services is in full compliance with all Applicable Laws. You also authorize us to respond to information requests from your broker/dealer, as necessary, which may include disclosure of information to such broker/dealers concerning your use of the Services. The Company has no obligation to notify you in advance of any such disclosure.
7.3 COPPA. The Child Online Privacy Protection Act of 1998 protects the privacy rights of children (under 13). You are responsible for learning and complying with COPPA’s requirements. In addition, you warrant and represent that you will not intentionally market to children under 13 and that you will not gather information of children under thirteen (13) in any format or post any personal information (including images) of children under thirteen (13) in the Software Services, including on your Website, Blog, or Mobile Application.
7.4 Digital Millennium Copyright Act. The Company complies with the Digital Millennium Copyright Act. The Company does not permit copyright infringing activities and reserves the right to terminate access to the Software Services by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies the Company may have at law or in equity.
7.5 Account Information. You agree that the information you provide to the Company when you sign up and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you signed up, you were asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account. You authorize us to reset your password at any time.
7.6 Prohibited Conduct. You agree not to:
The Company may determine in its sole discretion whether conduct in which you engage violates any or all of these obligations or otherwise violates the terms of this Agreement, and it may immediately and unilaterally suspend or terminate your account and access to the Company Platform, your Website, and the Services for such violation. Exercise of its termination rights hereunder does not preclude the exercise of any other right to which the Company is entitled, either under the law or under this contract. Such rights include, without limitation, the right to refer violating conduct to law enforcement, where the Company believes in its sole discretion that illegal conduct has occurred.
7.7 Your Indemnity. You shall defend, indemnify and hold the Company and its directors, officers, employees, contractors, successors and assigns harmless from and against any loss, damage, liability, expense or costs (including reasonable attorneys’ fees, court costs, and witness fees) suffered or incurred in connection with any third-party claim, suite or proceeding made or brought against the Company arising out of or related to (i) Your Content, Related Third Party Content, and Contacts, and the Company’s use thereof as permitted under this Agreement, (ii) your use of (or inability to use) the Services and the results obtained therefrom, (iii) your violation of any Applicable Laws, and/or (iv) your breach of any of the obligations contained in this Agreement. If the Company seeks indemnification under this Agreement, the Company agrees to (a) promptly give written notice of the third-party claim to you (provided that any delay in providing notice shall not excuse you of your indemnification obligation except and solely to the extent that you are materially prejudiced by the delay); (b) give you sole control of the defense and settlement of the third-party claim (provided that you acknowledge full responsibility to indemnify the Company for any and all losses, damages and costs associated with such claim and shall not settle any third-party claim unless you unconditionally release the Company of all liability); and (c) reasonably cooperate, at your cost, in all material respects with your defense of any such claim.
8. TERM AND TERMINATION
8.1 Term. The initial term of this Agreement is the period of time that begins on the Order Effective Date specified in the Order and will continue for the period specified in the Order (“Initial Term”) unless earlier terminated in accordance with this Agreement. In the case of Professional Services, if there is no term specified in the Order, the end date shall be upon completion of Professional Services or earlier termination as permitted by this Agreement. Following the Initial Term, unless otherwise specified in a written Order Form, or an applicable Service Attachment, this Agreement shall be automatically renewed for successive terms of one (1) year (each a “Renewal Term”), unless either party gives the other party written notice of its intent not to renew at least thirty (30) days before the expiration of the Initial Term or any subsequent Renewal Term. The termination shall be effective on the last day of the applicable Term in which either party delivered such termination notice. If a third party is paying for the Services on your behalf, you must notify the third party, and the third party must notify us of your termination of the Agreement.
8.2 Termination for Breach. The Company may terminate this Agreement immediately if in its reasonable judgment it determines that you are in breach of any of the provisions of this Agreement.
8.3 Usage as Cancellation. At no event shall limited usage or no usage constitute cancellation, notice of cancellation, or entitle you to a refund.
8.4 Early Termination. In the event you terminate this Agreement with respect to a specific Order Form prior to the expiration of the then current Term, you will be required to pay to the Company an “Early Termination Fee.” If you terminate an Order Form during the Initial Term, the Early Termination Fee shall be equal to the balance of the remaining fees owed to the Company during the Initial Term under such Order Form. If you terminate an Order Form during any Renewal Term, the Early Termination Fee shall be equal to fifty percent (50%) of the balance of the remaining fees owed to the Company during such Renewal Term of such Order Form.
In the event your early termination of this Agreement results from your execution of a new Order Form for downgraded Services during the Initial Term of an Order Form, the Early Termination Fee will be equal to the difference between (i) the balance of the remaining fees under the original Order Form and (ii) the balance of the remaining fees under the original Order Form, but calculated using the rates in the new Order Form (the “Downgrade Amount”). In the event that a downgrade occurs during a Renewal Term, such Early Termination Fee shall be fifty percent (50%) of the applicable Downgrade Amount.
8.5 Effect of Termination. Upon termination or expiration of this Agreement for any reason, the license rights granted by the Company to you shall immediately terminate, and you must immediately cease use of the Services. Upon termination of this Agreement for any reason, or upon our written request at any point, you shall promptly return or destroy all copies of the Company Content, and provide to us a written certification that all copies and modifications in any form have been either returned or destroyed. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without content and domain transfer obligations, limitation of liability and indemnification) will survive termination or expiration and continue in full force and effect.
9. PROPRIETARY RIGHTS
9.1 Proprietary Rights. The Company hereby reserves all intellectual property rights not explicitly granted in this Agreement. As between the Company and you, the Company owns all intellectual property rights in and to the Services and the Company Platform, and to all related documentation and copies thereof, including without limitation all copyrights, trademarks, patents, trade secrets and other intellectual property (the “Proprietary Rights”), including goodwill or reputation that accrues to the Company’s intellectual property. To the extent that any Proprietary Rights are invented, created, developed, or first reduced to practice under this Agreement, jointly by the parties or in connection with the Company’s provision of Services, including by incorporating your comments or suggestions, the Company will own all right, title, and interest in and to such Proprietary Rights, with no duty to account to you or compensate you with respect to the use and exploitation of the Proprietary Rights.
9.2 Our Indemnity. The Company shall defend you from and against any claim, action, suit or proceeding brought by a third party against you alleging that your use of the Services or the Company Platform in accordance with the provisions of this Agreement infringes a U.S. patent issued as of the Effective Date (each, an “Infringement Claim”). The Company shall pay any damages awarded in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by the Company in any settlements arising out of such Infringement Claim; provided, that (i) you promptly give written notice of the third-party claim to the Company; (ii) you give the Company sole control of the defense and settlement of the third-party claim; and (iii) you provide to the Company, at the Company’s cost, all reasonable assistance. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by the Company, (ii) made in whole or in part in accordance with your specifications, Your Content, or Related Third Party Content, or to infringement arising as a result of (iii) you continuing allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (iv) your use of the Services in a manner that is not strictly in accordance with this Agreement and any Company standard policies as published from time to time; (v) the combination, operation, or use of the Services or the Company Platform with third party software, services or other products or materials not furnished by the Company, and (vi) any breach of this Agreement. In the event of such an Infringement Claim or threat thereof, the Company may, in its sole discretion, obtain a license for the infringing part of the Services or the Company Platform, remove or alter the infringing part of the Services or the Company Platform, so long as such removal or alteration does not materially affect the functionality of the Services or the Company Platform, or terminate this Agreement. THIS SECTION STATES THE ENTIRE OBLIGATION AND LIABILITY OF THE COMPANY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. WARRANTY DISCLAIMER AND LIABILITY LIMITS
10.1 WARRANTY DISCLAIMER. THE COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NONINFRINGEMENT, TITLE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY MAKES NO PROMISE, REPRESENTATION OR WARRANTY REGARDING ADDITIONAL SALES OR INCOME THAT YOU WILL GENERATE BY USING THE SERVICES. THE COMPANY DISCLAIMS ALL WARRANTIES AND RESPONSIBILITIES FOR THIRD PARTY SOFTWARE, MATERIALS OR SERVICES WHICH SHALL BE THE SOLE OBLIGATION OF THE PROVIDER OF THE THIRD PARTY SOFTWARE, MATERIALS OR SERVICES. THE COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THE COMPANY PLATFORM, OR AGAINST INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR THE COMPANY PLATFORM WILL BE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET YOUR REQUIREMENTS. THE COMPANY DOES NOT WARRANT THAT USE OF THE SERVICES OR THE COMPANY PLATFORM WILL RESULT IN ANY SPECIFIC LEVEL OF INCREASED BUSINESS OR THAT ANY MIGRATION OF YOUR WEBSITE WILL BE ERROR-FREE.
10.2 LIABILITY LIMIT AND CAP. EXCEPT WITH REGARD TO THE COMPANY’S WILLFUL MISCONDUCT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, AND IN CONSIDERATION OF THE RELATIVE RISKS AND REWARDS, THE COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA OR LOSS OF BUSINESS, EVEN IF THE COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING; NOR, EXCEPT FOR THOSE ITEMS LISTED ABOVE IN THIS PARAGRAPH, SHALL THE COMPANY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THE TERMS OF THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAYABLE BY YOU TO THE COMPANY FOR THE SERVICES, THE COMPANY PLATFORM AND YOUR WEBSITE DURING THE TWELVE (12) MONTHS PRECEDING THE ACT OR OMISSION THAT PRECIPITATED THE CLAIM. THE PARTIES ACKNOWLEDGE THAT THE COMPANY HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THAT THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL CONTINUE IN EFFECT AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU MAY USE. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
11. CONFIDENTIAL INFORMATION
The parties acknowledge that, in connection with this Agreement, each party will have access to confidential, proprietary and trade secret information concerning the other’s business and customers, including without limitation, the Company Platform, the Services and Client Information (collectively, “Confidential Information”). All Confidential Information shall remain solely the property of the disclosing party, and the recipient shall maintain and protect the confidentiality of such Confidential Information with the same degree of care used to protect its own Confidential Information, but in any event, no less than a reasonable degree of care. Except in performance of or as otherwise expressly permitted by this Agreement, no party shall duplicate in any manner another’s Confidential Information or disclose the Confidential Information to any third party or to any of its employees or agents not having a need to know. Any disclosure to employees or agents shall be made pursuant to obligations of confidentiality that are at least as rigorous as the obligations provided herein. Each of the parties further agrees not to utilize another’s Confidential Information for any purpose other than the performance of this Agreement or as otherwise expressly permitted hereby.
12. BINDING ARBITRATION AND CLASS ACTION WAIVER
12.1 Binding Arbitration and Class Action Waiver if You Live In (or if a Business Your Principal Place of Business Is In) the United States. We hope we never have a dispute, but if we do, you and we agree to try for sixty (60) days to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in a court in front of a judge or jury. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of appeal under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, combining individual proceedings without the consent of all parties, and any other proceeding where someone acts in a representative capacity are expressly prohibited.
12.2 Arbitration Procedure. The AAA will conduct any arbitration under its Commercial Arbitration Rules (or if you are an individual and use the Services for personal or household use, or if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the Services, its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. To start an arbitration, submit the form available at https://www.adr.org/Forms to the AAA and mail a copy to us. In a dispute involving $25,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in your county of residence (or if a business your principal place of business) or our principal place of business–San Diego County, California. You choose. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim.
12.3 Disputes Covered–Everything Except IP. The term “dispute” is as broad as it can be. It includes any claim or controversy between you and us concerning the Services, the price of the Services, your account, this Agreement, an Order or billing authorization, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights.
12.4 Mail a Notice of Dispute First. If you have a dispute and our customer service representatives are unable to resolve it, send a Notice of Dispute by U.S. Mail to FMG Suite, LLC Attn: Legal Department, 12395 World Trade Drive, Suite 200, San Diego, California 92128 U.S.A. Tell us your name, address, how to contact you, what the problem is, and what you want. We’ll do the same if we have a dispute with you. After sixty (60) days, you or we may start an arbitration if the dispute is unresolved.
12.5 Small Claims Court Option. Instead of mailing a Notice of Dispute, you may sue us in small claims court in your county of residence (or your principal place of business) or San Diego County, California, U.S.A. if you meet the court’s requirements. We hope you will mail a Notice of Dispute and give us sixty (60) days to try to work it out, but you do not have to before going to small claims court.
12.6 Equitable Relief. Notwithstanding the foregoing, the Company and you acknowledge that a breach by you or us of Sections 1.2(b) (Right to Access and Use the Software Services), 1.4 (Other Restrictions), 2.4 (Company Content), 3.6 (Data Privacy), 7.6 (Prohibited Conduct), 9.1 (Proprietary Rights) and 11 (Confidential Information) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
13. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
13.1 Linked Sites. The Services or the Company Platform may include links or access to other web sites or services (“Linked Sites”) solely as a convenience to users. In addition, with your authorization, and at your direction, the Company may access third-party sites on your behalf, using your credentials for the third-party sites that you enter into the Platform Admin yourself. Entering your credentials for such third-party sites into the Platform Admin constitutes your authorization for the Company to access such third-party sites on your behalf. The Company does not control and does not endorse any Linked Sites or third-party sites or the information, material, products, or services contained on Linked Sites or accessible through Linked Sites or third-party sites. Furthermore, the Company makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites or third-party sites, and inclusion of any Linked Sites or third-party sites should not be considered as a solicitation for the purchase or sale of any product or security. ACCESS AND USE OF LINKED SITES AND THIRD-PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES AND THIRD-PARTY SITES OR AVAILABLE THROUGH LINKED SITES AND THIRD-PARTY SITES, IS SOLELY AT YOUR OWN RISK. THE COMPANY WILL PROTECT THE SECURITY OF THE CREDENTIALS USED TO ACCESS LINKED SITES AND THIRD-PARTY SITES ONCE YOU HAVE ENTERED THEM INTO THE PLATFORM ADMIN, BUT YOU ARE SOLELY RESPONSIBLE FOR ENSURING THOSE CREDENTIALS ARE NOT OBTAINED BY A THIRD PARTY OUTSIDE OF THE PLATFORM ADMIN.
13.2 Responsibility for dealings with Third Parties. Sometimes promotional plans are offered in conjunction with the provision of third party products and services. We are not responsible for the products and services provided by such third parties, and use of such products and services is at your own risk. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services or the Company Platform are solely between you and such advertiser. YOU AGREE THAT THE COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SERVICES OR THE COMPANY PLATFORM.
14.1 Entire Agreement, Amendment and Additional Terms. This Agreement, including any additional posted guidelines, or rules applicable to particular plans, offers, products, services or features offered by or through the Services, which may be posted and modified from time to time, is the entire and integrated agreement between the Company and you. It may only be modified in accordance with the “welcome” paragraph at the beginning of this Agreement. All such additional terms are hereby incorporated by reference into this Agreement, provided that in the event of any conflict between such additional terms and this Agreement, this Agreement shall prevail.
14.2 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice or conflict of law provision or rule and without giving effect to the United Nations Convention on the International Sales of Goods. The Company and you hereby submit to the exclusive personal jurisdiction of the state and federal courts located in the county of San Diego, State of California.
14.3 Assignment. This Agreement is for the benefit of each party and its Affiliates and each party will ensure that its Affiliates comply with the terms hereof. This Agreement is not assignable by either party without the prior written consent of the other party, except that without securing such prior consent, each party will have the right to assign this Agreement and its rights and obligations hereunder to any: (1) Affiliate of such party; or (2) successor of such party by way of merger or consolidation or the acquisition of all or substantially all of the business, assets or voting stock of the assigning party (or business division or unit of such party) relating to this Agreement (an Acquisition”). Any other attempt to assign any of the rights, duties, or obligations of this Agreement without such consent will be void and of no effect.
14.4 Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
14.5 Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
14.6 Attorney Fees, Court Costs. In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
14.7 Waiver. No waiver of any of the provisions of this Agreement by the Company is binding unless authorized in writing by an executive officer of the Company. In the event that the Company waives a breach of any provision of this Agreement, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of this Agreement and will in no manner affect the right of the Company to enforce the same at a later time.
14.8 Force Majeure. The Company will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond the Company’s reasonable control.
14.9 Taxes. You are responsible for all taxes and other governmental fees or charges that are payable by reason of this Agreement, other than taxes on the Company’s net income.
14.10 Independent Contractors. Notwithstanding any reference to being “partners” in this relationship, the Company and you are independent contracting parties. Neither the Company nor you has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other party, except as expressly provided herein. The relationship between the Company and you in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either party that otherwise might result from such a relationship.
14.11 Government Users. If you are a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), you acknowledge that the Services constitute software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
14.12 Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement except for those expressly referenced herein or in any applicable Service Attachment.
14.13 Notices. Except as explicitly stated otherwise, legal notices will be served, with respect to the Company, on the Company’s national registered agent, and, with respect to you, to the email address associated with your account. Notice will be deemed given twenty-four (24) hours after the email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to either the mailing address or billing address provided during the sign-up process. In such case, notice will be deemed given three (3) days after the date of mailing. Notwithstanding the foregoing, if a third party is paying for the Services on your behalf, we will also send any legal notice to such third party.