1. Description of Services:
Cargo Gods, Inc., d.b.a. Internet Commerce Exchange ("iComEx") provides Web Site Development, hosted Content Management Services, Content Creation and Updating Services, Search Marketing Services and other services (collectively the "Services") that allows iComEx Customers and Guests invited by those Customers to create, edit, and manage web-based content. Each Customer has an Account with iComEx, and each Account is provided with various features, functionality, disk space, and internet bandwidth, the amount and extent of each of these based on the level of Services that the Customer has signed up for. Unless explicitly agreed to in writing by iComEx, all aspects of the Services, including without limitation any new Services, features, or functionality, whether they are upgrades, enhancements, fixes, or completely new Services released, will all be subject to these Terms of Service ("TOS"), the Service Rates and the Acceptable Use Policy ("AUP"). In order to use the Services, the Customer and all Guests must obtain access, at their own cost, to the World Wide Web, through use of appropriate hardware, software and communications equipment, including but not limited to a computer, a web browser, modem or other communications equipment, and an account with an internet Services provider.
2. Term:
The initial term of this Agreement shall be 30 days. The Agreement term is effective on the date Customer signs the acceptance of an iComEx proposal. The term will automatically renew on a monthly basis until either party provides 30 days prior written notice of their intent not to renew. Either party may terminate this Agreement with 30 days written notice to the other party.
3. Charges and Payment of Fees:
Subject to the Billing, Credit, and Collections Policy, Customer will pay all fees or charges to its account for each applicable billing period in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable.
iComEx charges and collects in advance for use of the Services. iComEx's fees are exclusive of taxes, levies, or duties imposed of taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on iComEx's income.
Invoices will be generated at the start of each billing period and shall be due and payable immediately. Customer's account will be considered delinquent (in arrears) if payment in full is not received by the 15th day following the start of the current billing period.
If Customer believes that the bill is incorrect, Customer must contact iComEx in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
4. Non-Payment:
Delinquent invoices (accounts in arrears) are subject to a $29.00 per month late fee, plus interest of 1.5% per month (18% APR), with a minimum monthly finance charge of $5.00 per month, on any outstanding balance, or the maximum permitted by law, whichever is greater, plus all expenses of collection, including collection agency fees, attorney fees and court costs. On any termination of this Agreement, Customer will be obligated to pay the balance due on Customer's account computed in accordance with the provisions set out in the Billing, Credit, and Collections Policy, as they are in effect from time to time.
5. Suspension or Termination of Services:
In addition to any other rights granted to iComEx herein, iComEx reserves the right to suspend or terminate this Agreement and Customer's access to the Services if Customer's account becomes delinquent (falls into arrears). Customer will continue to be charged during any period of suspension. iComEx also reserves the right to impose a separate reconnection fee should Customer thereafter again request access to the Services. Customer agrees and acknowledges that iComEx has no obligation to retain the Customer Data (defined below) if the account is more than 30 days overdue, and such Customer Data will be irretrievably deleted if the account is unpaid after 30 days.
In addition, iComEx may immediately suspend or terminate the Services if a hacked script or otherwise compromised website is discovered on our systems, at a Service in use by the Customer, or the Customer is not in compliance with the iComEx Usage Guidelines for Customer Data as set out in section 8, or any part of the TOS or AUP.
iComEx also reserves the right to immediately suspend or terminate the Services for abusive behavior by Customer towards iComEx or an iComEx employee.
6. Customer Responsibilities:
Customer is responsible for any and all activities that occur under Customer's accounts. Customer shall: (i) notify iComEx immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) assure that use of the Services shall at all times comply with all applicable local, state, federal, and international laws, regulations, treaties and conventions, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data; (iii) assure that use of the Services by Customer's Guests shall at all times conform to the Usage Guidelines for Customer Data; and (v) not impersonate another iComEx user or provide false identity information to gain access to or use the Services.
7. Account Information and Customer Data:
All data, information or material provided or submitted by Customer or Customer's Guest's to the Services, whether posted by Customer or by third parties (collectively, "Customer Data"), shall remain the sole property of Customer or such third parties, as applicable.
Upon any termination of this Agreement (other than by reason of Customer breach), iComEx will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests by the effective date of termination. iComEx reserves the right to withhold, remove, delete and/or discard Customer Data without notice if Customer does not make such request by such deadline. Upon any termination by reason of Customer breach, iComEx shall have no obligation to maintain or forward any Customer Data and iComEx may immediately remove and/or discard Customer Data without notice.
By submitting Customer Data to iComEx, Customer (and any Customer Guest) grants iComEx a world-wide, royalty-free, and non-exclusive license to reproduce, modify, transmit, adapt and publish the Customer Data solely for the purpose of providing the Services.
Customer acknowledges that iComEx does not pre-screen Customer Data, but that iComEx and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Customer Data that is available via the Services. Without limiting the foregoing, iComEx and its designees shall have the right to remove any Customer Data that violates the TOS, or the AUP, or is otherwise deemed (at iComEx's sole discretion) objectionable. Customer agrees that it must evaluate, and bear all risks associated with, the use of any Customer Data, including any reliance on the accuracy, completeness, or usefulness of such Content.
8. iComEx Ownership:
iComEx alone (and its licensors, where applicable) shall own all right, title and interest, including any and all related intellectual property rights (including without limitation rights relating to patents, copyrights and trademarks), in and to any and all of (i) iComEx's proprietary technology (including without limitation software, hardware, algorithms, know-how, techniques and designs) made available to Customer as part of the Services, (ii) the content provided by iComEx and the Services, and (iii) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services. This Agreement is not a sale and does not convey any rights of ownership in or related to the Services, any of such proprietary technology of iComEx or any of such intellectual property rights owned by iComEx to Customer. The iComEx name, the iComEx logo, and the product names associated with the Services are trademarks of iComEx or third parties, and no right or license is granted to use them.
9. Grant of License
Upon final payment by the Customer of all fees for interface design and content development invoiced under this Agreement iComEx shall grant an unlimited, irrevocable, world-wide, non-exclusive, non-transferable license to the Customer allowing the use of all content elements, graphics, text, project specific custom programming (if any) and project specific (if any) databases produced under this Agreement for the purposes of use as part of an Internet web site hosted and managed by iComEx. All licensed material shall be considered Customer Data and is subject to the Usage Guidelines for Customer Data. This Grant of License excludes iComEx proprietary software such as that contained within the iComEx MLS IDX service, the ICXcontacts extension, or any other third party software.
10. Usage Guidelines for Customer Data:
All Customer Data is the sole responsibility of the person from which such Customer Data originated. The Customer, and not iComEx, is entirely responsible for all Customer Data that is uploaded, posted, transmitted or otherwise made available via the Services. iComEx does not control, unless authorized by the customer to do so, the Customer Data posted via the Services and, as such, does not guarantee the accuracy, integrity, legality, reliability, appropriateness, copyright or quality of such Customer Data. Under no circumstances will iComEx be liable in any way for any Customer Data, including, but not limited to, any errors or omissions in any Customer Data, or for any loss or damage of any kind incurred as a result of the use of any Customer Data posted, transmitted or otherwise made available via the Services. iComEx shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of the Customer Data.
Customer acknowledges and agrees that iComEx may preserve Customer Data and may also disclose Customer Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS or AUP; (c) respond to claims that any Customer Data violates the rights of third-parties; or (d) protect the rights, property, or personal safety of iComEx, its users and the public.
Customer agrees to not:
(a) upload, post, transmit or otherwise make available any Customer Data that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; or harms minors in any way;
(b) impersonate any person or entity, including, but not limited to, a iComEx official, or falsely state or otherwise misrepresent your affiliation with a person or entity; forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
(c) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(d) upload, post, or transmit unsolicited commercial email or "spam". This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam", such as (a) sending mass email to recipients who haven't requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions;
(e) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(f) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
(g) intentionally or unintentionally violate any applicable local, state, national or international law; or promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or offer for sale or sell any item, good or Services that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) iComEx determines, in its sole discretion, is inappropriate for sale through the Services provided by iComEx;
(h) exceed the scope of the Services that you have signed up for; for example, accessing and using features, functionality or tools that you do not have a right to use;
(i) resell, in whole or in part, any of the iComEx Services without the express written permission of iComEx.
10. Third Party Rights:
During use of the Services, Customer may enter into correspondence with, purchase goods and/or Services from, or participate in promotions of advertisers or sponsors showing their goods and/or Services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Customer and the applicable third-party. iComEx and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third-party. iComEx does not endorse any sites on the Internet that are linked through the Services. iComEx is providing these links to Customer only as a matter of convenience, and in no event shall iComEx or its licensors be responsible for any content, products, or other materials on or available from such sites. iComEx provides its Services to Customer pursuant to the terms of this Agreement. Customer recognizes, however, that certain third-party providers of ancillary software, hardware, or Services may require Customer's agreement to additional or different license or other terms prior to Customer's use of or access to such software, hardware, or Services on behalf of Customer
11. Representation & Warranties:
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. iComEx represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with the online iComEx help documentation under normal use and circumstances. Customer represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Services, that Customer's billing information is correct, and that Customer will comply with the Usage Guidelines for Customer Data and all the provisions of this Agreement.
12. Indemnification:
Customer, and their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents, shall indemnify and hold iComEx, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of its representations and warranties hereunder; or (iii) a claim arising from the breach by Customer (or any users of the Services) of this Agreement, provided in any such case that iComEx (i) gives written notice of the claim promptly to Customer (ii) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless it unconditionally releases iComEx of all liability and such settlement does not affect iComEx's business or Services); (iii) provides to Customer all available information and assistance; and (iv) has not compromised or settled such claim.
Customer shall indemnify iComEx pursuant to this Agreement for claims arising from any infringement arising from the combination of the Services with any of Customer's products, Services, hardware or business process(s).
13. Disclaimer of Warranties:
OTHER THAN AS EXPRESSLY STATED HEREIN, iComEx AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT; iComEx AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE Services WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THE SERVICES AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS", "AS AVAILABLE" BASIS; AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY iComEx AND ITS LICENSORS.
14. Internet Delays:
A. THE SERVICES PROVIDED BY iComEx MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
B. iComEx DOES NOT HAVE ANY DIRECT CONTROL OVER THE DELIVERABILITY OF EMAIL. iComEx OPERATES ITS EMAIL SERVERS IN COMPLIANCE WITH ACCEPTED INTERNET STANDARDS AND BEST PRACTICES. iComEx ALSO STRIVES THE MAINTAIN A GOOD SENDER REPUTATION BY MONITORING ITS CLIENT'S USE OF EMAIL TO ASSURE THAT NO ONE IS SENDING OUT UNSOLICITED BULK EMAILS OR INFECT EMAILS THAT COULD ADVERSELY AFFECT ON OUR SERVICES.
C. iComEx IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY DAMAGES RESULTING FROM SUCH PROBLEMS.
15. Limitation of Liability:
IN NO EVENT SHALL iComEx'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE SERVICES IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL iComEx AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF iComEx OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Local Laws and Export Control:
iComEx provides Services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to any countries to which the United States maintains an embargo, as amended and updated from time to time (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders as amended and updated from time to time (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000, as it may be amended and updated from time to time.
iComEx and its licensors make no representation that the Services is appropriate or available for use in other locations. If Customer uses the Services from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States Government for such purposes.
17. Notice:
iComEx may give notice by means of a general notice on the Services, electronic mail to Customer's e-mail address on record in iComEx's account information, or by written communication deposited in the United States Post Office, by registered or certified mail, postage prepaid, addressed to Customer's address on record in iComEx's account information. Such notice shall be deemed to have been given upon the expiration of two business days after being so postmarked or one business day after sending (if sent by email), with printed successful transmission confirmation. Customer may give notice to iComEx (such notice shall be deemed given when received by iComEx) at any time by any of the following: letter delivered by nationally recognized overnight delivery Services or first class postage prepaid mail to iComEx, at the address listed above or at such other address or addresses as iComEx shall designate to Customer in accordance with this paragraph 17.
18. Modification to Terms:
iComEx reserves the right to change the terms and conditions of this Agreement or its policies relating to the Services by providing a notice to Customer or by posting an updated version of the TOS or AUP on the Services. Customer is responsible for regularly reviewing notices from iComEx and the latest version of the TOS and AUP posted on the Services. Continued use of the Services after any such changes shall constitute Customer's consent to such changes.
19. Assignment:
This Agreement may not be assigned by Customer without the prior written approval of iComEx but may be assigned by iComEx to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
20. General:
A. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law rules that would refer to and apply the substantive laws of another jurisdiction.
B. This Agreement constitutes the entire understanding of the parties and supersedes all prior agreements between the parties and is intended as a final expression of their agreement. This Agreement shall not be deemed or construed to be modified, amended, rescinded, canceled, or waived in whole, or in part, except by written amendment between the parties hereto or as expressly provided herein. This Agreement, as it may be amended from time to time, shall take precedence over any other documents that may be in conflict with this Agreement.
C. No waiver of any rights caused by breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing.
D. In the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be severed and the entire Agreement shall not fail on account thereof and the balance of this Agreement shall continue in full force and effect.
E. The parties of this Agreement are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, or partner of the other party.
F. Customer agrees that if it is held by any court of competent jurisdiction to be in violation of the terms of this Agreement, it shall pay all costs of such action or suit incurred by iComEx, including reasonable attorneys fees incurred throughout the course of enforcing this Agreement.
G. iComEx and Customer acknowledge that they understand all terms and conditions of this Agreement, and that they agree to be bound hereby.
Last Updated 1/1/2019
