By signing up for ecommerce and web hosting services with Webplus, Inc. (the "Company"), you agree to the following Terms of Service:
This Terms of Service document (this "Agreement") constitutes a legally binding contract between Company, and the person or organization (the "Client") who submits an order for services or who pays for services from (the "Client"). Company may change this Agreement at any time by posting a revised version of the Agreement on its website and such change will be effective at any time after the Client is advised of the change and continues to use or pay for the Services.
Company will provide the Services ordered by the Client including shopping cart software usage, ecommerce web hosting, web design and related services, subject to all of the terms, conditions and limitations applicable to the Services set forth in this Agreement. The Client will pay for the Services at the price indicated at the time of the Client signing up for Services. Company may change the prices for the Services at any time and any such change in prices will be effective thirty (30) days after Company posts the changes on its website (www.WebplusShop.com). All fees collected under this Agreement are fully earned when due and nonrefundable when paid. All fees due under this Agreement must be paid in United States dollars via credit card or other payment methods acceptable to Company. Client agrees to provide its accurate name, mailing address, telephone and other contact information in Client's profile and to update such contact details as they may change. As a condition of purchasing and using the Services, Client acknowledge and agree that Company may provide Client personal information to Company partners, as required to provide the plans for which Client is purchasing.
The Client may use the Services only in accordance with this Agreement, applicable laws in the United States and the applicable laws of any other jurisdiction. Client agrees not to use the Services in any manner that violates the Company's Acceptable Use Policy. In addition, the Client agrees that it will not use the Services to:
- Engage in any illegal or tortuous activity;
- violate the patent, copyright, trademark, trade secret or other intellectual property rights of any third party;
- publish or distribute in any manner any content that is harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable to Company in its sole discretion.
No Guarantee of Results
The Client acknowledges that Company does not guarantee, imply, or predict any type of profit or response from the Services. The Services may be subject to interruptions, loss of data, deletion of data and conditions that prevent the proper operation of the Services resulting from conditions of events outside the reasonable control of Company and for which Company will bear no responsibility. The Client irrevocably covenants, promises and agrees to indemnify Company and its assigns and to hold them harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature that they may sustain or to which they may become subject arising out of or relating in any way to the use of the Services, including, without limitation, in each case attorneys' fees, costs and expenses actually incurred in defending against any such claims or enforcing the prerogatives of Company under this Agreement.
Use of Client Data
Description of Services
The Services may include any one or more of the following elements, depending upon the package and options selected by the Client during the ordering process:
- Shopping Cart and eCommerce software that facilitates the sale of products by the Client to customers on a website controlled by the Client;
- Website hosting & ecommerce hosting service;
- Online advertising/promotion tools and services; and
- Graphic design and web design services.
Certain of these Services may include additional third-party products or services that require the Client to accept the terms and conditions of the third party or to pay additional fees to such third party. Client agrees that it is wholly responsible for any such third party terms and conditions and third party fees.
The Services will commence on the date Client's order is accepted by Company (the "Effective Date") and will continue on the basis of successive monthly billing periods (with the first day of each billing period being a "Billing Date") thereafter until terminated by either party. Company will charge the Client's payment source on each Billing Date for the billing period beginning on that date. If funds or not available or Company otherwise is unable to collect any fees when due,Company may continue to submit charges on Client's credit card from time to time until all fees due are paid. Company may suspend all or any portion of the Services at any time when fees are due and unpaid.
Any fees due under this Agreement are net of any sales or use taxes, all of which are the sole responsibility of Client.
Clients who are subscribed to either monthly or annual packages will not be eligible or entitled to a refund (partial or in full) of any fees already paid.
Client may terminate this Agreement at any time by giving Company notice at least seven (7) days prior to the next Billing Date. Company may terminate this Agreement immediately and without prior notice if Client is in breach of this Agreement. Following termination the Client will have no right to use or access the Services. In its discretion, Company may permit a Client to recover data from the Services following termination after payment of additional fees.
Company may give notice to Client of any matter under this Agreement (a) orally, by calling Client's representative or by leaving a voicemail for Client's representative at the telephone number in Client's profile, (b) by email to the email address provided by Client in Client's profile, or (c) by regular mail to Client's mailing address in Client's profile. Client may give notice to Company by regular or certified mail to the following address:Webplus, Inc.
416 Production Street North
Aberdeen, SD 57401
Attn: Legal Department
Client may also give notice of termination by using cancellation tools provided in the merchant interface of their online store.
License of Clients Website Content
Client grants the Company, and Company accepts from Client, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Client's website content in connection with Company's performance or enforcement of this Agreement.
Any website hosted by the Company on the Company's servers is built using the Webplus Shop shopping cart software, proprietary software of the Company. As a result, if the Client wishes to transfer their content to another web hosting company, the Company will help the Client retrieve their product images, background images, header and footer images. Client may retrieve their database data using the Webplus Shop Export Wizard feature. Due to the dynamic nature of websites using Webplus Shop, HTML pages cannot be provided.
Service Availability Guarantee
Company offers a service uptime guarantee for the Services of 99.9% ("Service Uptime") of available time. If Company, fails to maintain this level of service availability, Client may contact Company and request a credit of 5% of Clients monthly hosting fee from Company for that month. The credit does not apply to service interruptions caused by (i) periodic scheduled maintenance or repairs that Company may undertake from time to time; (ii) errors caused by Client from custom scripting or coding; (iii) outages that do not affect the appearance of the web site but merely affect access to the web site such as FTP and email; (iv) causes beyond the control of Company or that are not reasonably foreseeable by Company ; and (v) outages related to the reliability of certain programming environments. Total Service Uptime shall be solely determined by Company and shall be calculated on a monthly basis.
Domain Name Policy
All paid hosting packages include a domain name. Company will register the domain name of Client's choice (subject to availability). If Client should decide to cancel Services and transfer to another Web Hosting Provider there is a $50 domain name transfer fee. Once a website is cancelled, Client is granted 30 days to request a domain name transfer. After the 30 day transfer period has expired, Company reserves the right to retain ownership to all abandoned domain names.
One Client FTP account is available with the Webplus Shop Corporate Package. Any modifications or deletions of data via FTP are the sole responsibility of Client and Client indemnifies the Company against all damages and responsibility resulting from FTP usage. Client is not allowed to post illegal or copyrighted files for which Client does not have authorization to copy, display or sell.
Storage and Security
At all times, Client shall bear full risk of loss and damage to Client's website and all of Client's website content. Company does perform daily data backups; however, Client is entirely responsible for maintaining the confidentiality of Client's password and account information. Client agrees that Client is solely responsible for all acts, omissions and use under and charges incurred with Clients account or password or in connection with the Services or any of the website content displayed, linked, transmitted through or stored on Company servers. Client shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Client website content; (ii) maintain independent archival and backup copies of Client website content (images, descriptions, etc); (iii) ensure the security, confidentiality and integrity of all Client website content transmitted through or stored on Company servers; and (iv) ensure the confidentiality of Client password. The Company's servers are not an archive and Company shall have no liability to Client or any other person for loss, damage or destruction of any of Client content. The Company Services are intended to provide a PCI (Payment Card Industry) compliant environment and therefore should be considered as one. Company shall have no liability to Client or any other person for Client use of the Services in violation of these terms. Client shall at all times use the Services as a turnkey conventional and/or traditional ecommerce website. Client shall not use the Services in any way that impairs the functioning or operation of Company's Services or equipment, in Company's sole discretion. Specifically by way of example and not as a limitation, Client shall not use the Services as (i) a repository or instrument for placing or storing archived files, and/or (ii) placing or storing material that can be downloaded through other web sites. You acknowledge and agree that Company has the right to carry out a forensics examination in the event of a compromise to any Company server or Client account.
- Indemnification. Client will indemnify and defend Company against any third-party claim, action, suit, or proceeding arising out of or relating in any way to any alleged breach of this Agreement by Client. Company will indemnify and defend Client against any third-party claim, action, suit, or proceeding alleging any breach of this Agreement by Company. In connection with any request for indemnification under this Agreement, the indemnified party must: (i) give the indemnifying party prompt, written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; (ii) grant control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperate with the indemnifying party at the indemnifying party's expense.
- Limitation of Liability. IN NO EVENT WILL THE LIABILITY OF COMPANY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT DURING THE THREE (3) MONTH PERIOD BEFORE THE DATE ON WHICH SUCH LIABILITY AROSE. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY (A) LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS OR (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, COMPANY WOULD NOT ENTER INTO THIS AGREEMENT.
- Miscellaneous. This Agreement shall be governed solely by the laws of the State of South Dakota, excluding its principles of conflicts of laws. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in South Dakota, with sole venue in the courts located in Brown County, and each party hereby submits to the personal jurisdiction of such Courts. Each party agrees that its performance under this Agreement shall in all respects conform to all applicable laws, rules, and regulations of the United States governing the export of technical information. Customer may not assign this Agreement without the prior, written permission of Company. Any purported assignment in violation of this will be void and without any effect. This Agreement may not be modified or amended except in writing, signed by both parties. Any purported oral modification or amendment of this Agreement in derogation of the foregoing shall be without any effect. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Services or this Agreement. Neither party may waive any right hereunder except expressly and in writing. This Agreement is the entire agreement between the parties with respect to this subject matter, and it supersedes all prior and contemporaneous discussions, negotiations, communications, and agreements with respect thereto. If any provision in this agreement is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this agreement, and without further action by the parties hereto, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.