Terms of Service for usage of Redpodium – a software product made by Webconnex LLC
You, the Licensee (“Licensee”), and Webconnex, LLC, with offices at 455 Capitol Mall Suite 604, Sacramento, CA 95814 (“Webconnex”), as of the Effective Date, agree to be bound by this Licensee Agreement & Terms of Services Policies that may be updated from time to time online atwww.webconnex.com/terms-of-service
Webconnex is the provider of certain software products and services under the trade names of RedPodium.
Licensee acknowledges that Webconnex owns all right, title, and interest in and to any products, Services, tools, know-how, processes, documentation and software used or created by Webconnex in connection with this End-User Agreement. Licensee acknowledges and agrees not to claim any right, title and interest in and to the Services and, except for the express authorized usage contained herein or with Reseller, no such right, title or interest is transferred to Licensee.
2. LICENSEE COVENANTS.
Licensee agrees the Services provided by Webconnex for Licensee under this Agreement may not be resold or otherwise transferred by Licensee to any person or party. Licensee agrees that it shall not directly or indirectly (i) modify, enhance, alter, or prepare derivative works based on any of the Services, (ii) decompile, decode, unlock, attempt to discover the source code of, or otherwise reverse engineer, any of the Webconnex Services, (the “Reverse Engineering”); and (iii) assist, enable, or permit others to do the foregoing.
3. WEBCONNEX CONVENANTS.
Webconnex does not guarantee any level of success in terms of donations, registrations, sponsorships, sales, memberships, or any other aspect of this Agreement.
4. WEBCONNEX RIGHT TO SUBCONTRACT.
Webconnex may subcontract all or any portion of the services to be performed by it hereunder. Webconnex is authorized to disclose Confidential Information (as defined in Section 6) of Licensee as is reasonably necessary for Webconnex to perform its duties hereunder through any subcontractors; provided that any recipient of such Confidential Information shall execute a confidentiality agreement with restrictions at least as stringent as provided in Section 7.
5. AUTOMATIC PAYMENT OF LICENSE FEES.
Licensee agrees and understands that Webconnex shall process agreed upon licensee fees on a monthly basis. Licensee fees shall cover the use of licensed product for the month following payment. Payments will automatically recur each month. Payments may be in the form of Mastercard, Visa, Debit Card or Virtual Check. Licensee may terminate agreement at any time in writing; however, no refunds of license fees will be paid for unused days in the month of receipt of cancelation request. Official explanation of refund policy can be found at www.webconnex.com/refunds.
Licensee indemnifies and holds Webconnex harmless from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys’ fees) incurred by Webconnex as a result of any third party claim against Webconnex pertaining to the content on Licensee’s website, for any patent, copyright, trademark, or other intellectual property right of any third party that relates to any information provided to Webconnex by Licensee, or for any violation of any of the terms of this End-User Agreement.
"Confidential Information" of a party shall mean all confidential or proprietary information and documentation of such party, whether or not marked as such. Confidential Information does not include (i) information that is or becomes generally known to others, but not as a result of breach of confidentiality obligations or other wrongful acts; (ii) information that was known to the receiving party at the time of disclosure; (iii) information learned from a third party holding same lawfully and not subject to confidentiality obligations; and (iv) information required to be disclosed by law, regulation, or court order, to the extent such requirement is actually imposed and only after prompt notice to the other party. Licensee and Webconnex agree to hold the other’s Confidential Information in confidence; to use the other’s Confidential Information only to perform the duties and exercise the rights set forth in this Agreement; and not to disclose the other’s Confidential Information to third parties (except authorized employees and agents having a reasonable need to know) without the disclosing party’s express prior written consent. Licensee and Webconnex shall safeguard the other’s Confidential Information against unauthorized use and disclosure with means at least as secure as it employs to safeguard its own Confidential Information, and in no event with less than reasonable means. The obligations of confidentiality herein shall survive the termination of this Agreement for so long as the information at issue continues to meet the definition of Confidential Information.
8. OFFENSIVE CONTENT & USE.
Licensee agrees to NOT to upload or display any content that: (a) contains nudity, sexually graphic content, drug use (implied or literal), or material that is otherwise deemed explicit, or in poor taste by Webconnex; or (b) content that contains threatening, abusive, harassing, defamatory, libelous, invasive, hateful, or racially, religiously, ethnically or otherwise objectionable. Further, licensee agrees NOT to use Webconnex to sell tickets for, raise donations, create registration for any organization or event involved in the above. Doing so will result in removal of your campaigns(s) and immediate termination of your account. Webconnex reserves the right to refuse service to any campaign it deems to be in poor taste.
9. PROHIBITED USES
By using Webconnex Products and or using WePay as a Merchant, you also confirm that you will not accept payments or use the Service in connection with the following activities, items or services:
• Adult or adult-related content, including performers or “cam girls”
• Alimony, child support, or other court-ordered payments
• Bath salts and herbals
• Buyers clubs, discount clubs or membership clubs
• Check cashing, or payment for a dishonored check or for an item deemed uncollectible by another merchant
• Computer repair or maintenance services, such as antivirus programs
• Cruise lines
• Credit counseling or credit repair agencies
• Credit protection or identity theft protection services
• Counterfeit or possibly counterfeit goods, such as designer handbags, clothing and accessories, and consumer electronics
• Debt collection, consolidation, or reduction services
• Digital goods including digital currency
• Direct marketing of subscription offers
• Distressed Property Sales and Marketing
• Door to door sales
• Drugs, alcohol, or drug paraphernalia, or items that may represent them
• Doctor assisted suicide, abortion and any other activity that ends human life
• Factoring, liquidators, bailiffs, bail bondsmen
• Financial services, such as cash advances, bill payment, loans, prepaid cards, wire transfers, or sales of money orders or foreign currency
• Gambling or betting, including lottery tickets, casino gaming chips, off-track betting, fantasy football, memberships on gambling-related internet sites and wagers at races
• Hate, violence, racial intolerance, or the financial exploitation of a crime
• Infomercial merchants
• Internet pharmacies or pharmacy referral sites
• Inbound or outbound telemarketing businesses including lead generation businesses
• Licensed or franchised goods or services, such as Apple products
• Live animals
• Magic, enchantment, sorcery or other forms of yet-to-be-explained science
• Medical equipment
• Multi-level marketing businesses, pyramid or Ponzi schemes
• Obscene or pornographic items
• Pharmaceuticals, including medical marijuana
• Prepaid phone cards or phone services
• Prostitution, escort services, massage parlors, and other potentially sexually related services
• Real estate or motor vehicle sales
• Rebate or upsell programs
• Scrip-dispensing terminal
• Sexually explicit content, events that coordinate sexual encounters or encourage sexual interactions with other individuals.
• Timeshares, timeshare resales and related marketing
• Tobacco, cigarettes, or e-cigarettes
• Unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same
• Violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same
• Weapons, including replicas and collectible items, or ammunition or other accessories
• Weight loss programs
You will not accept payments by American Express card in connection with the following activities, items, or services:
• Equities (including stocks, bonds, or any other ownership position in a corporation)
• Goods or services to be delivered more than four (4) months in the future, with an intention of gaining return on investment
• Internet auctions
• Political parties
• Telecommunications (including wireless, cable, satellite, wireline, and ISP)
• Travel industry (including car rental, lodging, and other travel tour operators)
In addition, you may not use the Service for:
• Impersonating any person or entity or falsely claiming an affiliation with any person or entity;
• Collecting, or attempting to collect, personal information about users or third parties without their consent, or using such information except as necessary to use the Service;
• Sending unsolicited offers, advertisements, proposals, or junk mail or spam to others. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature;
• Accepting payments for goods or services provided by someone other than you;
• Providing yourself or others with a cash advance from a credit card;
• Any illegal purpose, or violating any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation, and data collection and privacy;
• Defaming, harassing, abusing, threatening, or defrauding others;
• Posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy);
• Damaging, disabling, overburdening, or impairing WePay or Webconnex, including without limitation, using the Service in an automated manner;
• Interfering with another user’s enjoyment of the Service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code;
• Competing with Webconnex, WePay or Webconnex’s business partners;
• Sending or receiving what Webconnex considers to be funds for something that may have resulted from fraud or other illegal behavior;
• Abusing the payment card system or violating the Operating Regulations, in the reasonable opinion of the Networks or WePay;
• Acting as a money services business or money transmitter;
• Transferring funds between bank accounts held in the same name;
Creating an Account that is linked to another Account that has engaged in any of the foregoing activities. WePay may use evidence other than your Account information to determine whether you control an Account in someone else’s name, including but not limited to Internet Protocol addresses, common business names, phone numbers, and mailing addresses.
If Webconnex determines that you have received funds resulting from fraud or a prohibited activity, those funds may be frozen, returned to the Purchaser, or seized.
10. CUSTOMER SERVICE.
Webconnex will provide a reasonable level of customer service between the hours of 9am to 5pm Pacific Time, Monday through Friday. Customer Service may be available outside of these hours for an additional fee. Webconnex will not be responsible to provide any customer service directly with Licensee’s customers, subscribers, members or clients.
Licensee acknowledges that Webconnex may use Licensee’s brand, logo or name in conjunction with case studies, customer examples, product showcases on Webconnex’s website, email communication with customers, printed material and other promotional tools used by Webconnex.
12. LIMITATION OF WARRANTY.
All SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR OTHERWISE, REGARDING SUCH SCOPE OF WORK OR SERVICES’ ACCURACY, PERFORMANCE, OR ANY OTHER MATTER. WEBCONNEX DOES NOT WARRANT THE SOFTWARE OR WEBSITE ARE WITHOUT ERROR OR THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE IN ITS OPERATION OR THAT THEY SOFTWARE WILL SATISFY LICENSEE’S REQUIREMENTS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WEBCONNEX HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WEBCONNEX MAKES NO WARRANTY, REPRESENTAION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
13. LIMITATIONS OF LIABILITY.
WEBCONNEX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, FOR ANY AND ALL DAMAGES THAT YOU MIGHT INCUR (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED LICENSEE’S MONTHLY BASE LICENSE FEES FOR A TWELVE (12) MONTH PERIOD. WITHOUT LIMITATION OF THE FOREGOING, WEBCONNEX SHALL NOT (A) HAVE ANY LIABILITY TO LICENSEE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), REGARDLESS OF THE THEORY OR LIABILITY (INCLUDING TORT, CONTRACT AND NEGLIGENCE), AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF; OR (B) BRING ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. YOU EXPRESSLY AGREE THAT USE OF WEBCONNEX IS AT YOUR SOLE RISK. WEBCONNEX IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS
14. EQUITABLE RELIEF.
Licensee recognizes that the covenants contained in Sections 1,2,3,5 and 8 hereof are reasonable and necessary to protect the legitimate interests of Webconnex, that Webconnex would not have entered into this End-User Agreement in the absence of such covenants, and that Licensee’s breach or threatened breach of such covenants shall cause Webconnex irreparable harm and significant injury, the amount of which shall be extremely difficult to estimate and ascertain, thus, making any remedy at law or in damages inadequate. Therefore, Licensee agrees that Webconnex shall be entitled, without the necessity of posting of any bond or security, to the issuance of injunctive relief by any court of competent jurisdiction enjoining any breach or threatened breach of such covenants and for any other relief such court deems appropriate. This right shall be in addition to any other remedy available to Webconnex at law or in equity.
Licensee may terminate this Agreement immediately, at any time, by delivering a written termination notice to Licensor; however termination any time prior to the last day of the month will result in the forfeiture of any license fees paid for that month’s service. Licensor may terminate this Agreement at any time by giving at least sixty (60) days’ prior written notice; provided that Licensor may terminate this Agreement immediately by delivering a written termination notice to Licensee upon the material or continuing breach of this Agreement by Customer or if Customer infringes or misappropriates the intellectual property rights of Licensor. Upon termination of this Agreement, (i) each party shall return or destroy, at the election of the other party, all Confidential Information of the other party, (ii) all licenses granted hereunder shall terminate automatically, and (iii) each party shall cease using or displaying all materials licensed and/or provided to it by the other party. All transactions in progress prior to the date written notice of termination is deemed given (or such later termination date specified in the notice or herein, if any) shall be completed by Licensor and Customer shall remain liable for the fees and charges associated with such transactions. The following Sections of this End-User Agreement shall survive its termination: 1,2,3,4,6,7,8,9,10,11,12,and 14.
This End-User Agreement is binding on and inures to the benefit of the successors, assigns, and legal representatives of the parties; however, Licensee’s interest shall be assigned only with the prior written consent of Webconnex. No transfer or assignment of this Agreement shall release Licensee from its obligations. No waiver by either party shall be a waiver of any subsequent breach of or failure to perform the same or any other term, condition, or obligation hereof. Each party shall be solely responsible for making any governmental filings or reports which such party is required to make as a result of the transactions arising out of this Agreement. It is agreed by the parties hereto that venue of any action arising under this Agreement shall be in Sacramento County, California, and the laws of the State of California (excluding its conflicts of laws rules) shall govern this Agreement. Should any part of this Agreement contravene public policy, or laws of the jurisdiction in which it is sought to enforce the same, then such part shall be considered null and void and have no force and effect, and the balance of the terms and conditions of this Agreement shall remain valid and in full force and effect. Any required notice under this Agreement shall be in writing and delivered to the contact person for notices designated by a party (i) by personal delivery, (ii) by facsimile transmission when receipt is confirmed orally, (iii) by overnight courier upon written verification of receipt, or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.