Subscriber Service Agreement This Subscriber Service Agreement ("Agreement") is entered into as of the date on which the Subscriber first subscribes to the Faulkner Media Group, LLC Online Services (as defined below) ("Effective Date") by and between Faulkner Media Group, LLC, hereafter referred to as FMG ("FMG") and Subscriber.
1.1 Overview of Agreement. PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU WHEREAS, FMG is a software as a service (SaaS) provider that offers access to, and use of, certain applications including its fully integrated set of web-based eBusinesses solutions ("FMG Online Services") and implementation support to initiate such access and use; and WHEREAS, Subscriber wants to retain FMG to allow Subscriber to access and use the FMG Online Services as modified pursuant to FMG’s agreement with Subscriber under the terms and conditions set forth in this Agreement; NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, Subscriber and FMG agree to the foregoing and as follows:
ARTICLE 1 - GENERAL
1.1 Overview of Agreement. PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. This Agreement represents the terms and conditions under which FMG shall provide Subscriber access to and use of the FMG Online Services package or packages subscribed to ("FMG Online Services Service Plan"), which may be amended from time to time to reflect additional or amended FMG Online Services products ordered by Subscriber. The FMG Online Services shall be provided to Subscriber via the Internet's World Wide Web. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect.
ARTICLE 2 - FMG ONLINE SERVICES
2.1 Access Rights. During the term of this Agreement, Subscriber will have a limited, revocable, non-transferable and non-exclusive license for Subscriber's employees ("Authorized User") to use the FMG Online Services and related documentation solely for Subscriber's business purposes consistent with the terms and conditions of this Agreement. FMG will issue to one Authorized User ("FMG Online Services Administrator") an individual logon identifier and password ("Administrator's Logon") for purposes of administering the FMG Online Services Service Plan. Subscriber acknowledges and agrees that only its FMG Online Services Administrator shall be authorized to bind Subscriber in connection with any service provided to Subscriber under this Agreement. Using Administrator's Logon, the L2S Online Services Administrator may assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the L2S Online Services Service Plan, provided this option is allowed by COMPANY. Subscriber shall use its reasonable efforts to see that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the FMG Online Services Service Plan consistent with the assigned business rules; and (e) use the FMG Online Services Service Plan in accordance with the terms and conditions of this Agreement. Subscriber will be responsible for: (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (g) any and all costs and expenses incurred through the authorized use of Subscriber's Logon. FMG reserves the right to deny, suspend or revoke access to the FMG Online Services, in whole or in part, if FMG believes Subscriber and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the FMG Online Services inconsistent with the terms and conditions of this Agreement.
2.2 Restrictions. The Subscriber is expected to be familiar with and to practice good Internet etiquette ("Netiquette"). The Subscriber will comply with the rules appropriate to any network to which FMG may provide access. The Subscriber should not post, transmit, or permit Internet access to information the Subscriber desires to keep confidential. The Subscriber is not permitted to post any material that is illegal, indecent or is likely to result in retaliation against FMG by offended users. FMG reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group. Subscriber agrees that Subscriber and its Authorized Users will not: (a) sell, lease, license or sublicense the FMG Online Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the FMG Online Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the FMG Online Services by any third party; (d) copy or reproduce all or any part of the FMG Online Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the FMG Online Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the FMG Online Services; (g) knowingly introduce into or transmit through the FMG Online Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the FMG Online Services; or (i) engage in or allow any action involving the FMG Online Services that is inconsistent with the terms and conditions of this Agreement.
2.3 Non-Exclusivity. The parties acknowledge and agree that FMG is providing access to and use of the FMG Online Services to multiple Subscribers and that such services are non-exclusive.
2.4 Availability. FMG shall use commercially reasonable efforts to keep the FMG Online Services available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, FMG makes no guarantees that any given user will be able to access the FMG Online Services at any given time, and FMG shall not be liable to Subscriber for failure of accessibility to the FMG Online Services.
ARTICLE 3 – TERMS & FEES
3.1 Service Commitment; Early Termination Fee. Subscriber’s Service Commitment begins on the day Subscriber places an order for the FMG Online Services Service Plan and ends 30 days from official notice of cancellation received by FMG, delivered by Subscriber. . . SUBSCRIBER’S SERVICE SHALL AUTOMATICALLY RENEW ON A MONTH-TO-MONTH BASIS UNTIL EITHER PARTY GIVES NOTICE PURSUANT TO THE TERMINATION PROVISION BELOW.
3.2 30 Day Subscription Grace Period / Termination. You may terminate this Agreement within thirty (30) days from activating service and prior to submitting personalization elements without forfeitting fees. After thirty days (30) and/or submitting any or all personalization elements you will pay for monthly service fees and charges incurred through the termination date, including setup fees. Either party may terminate this Agreement at any time with thirty (30) days notice to the other party. Subscriber must speak with a FMG service representative at 888-364-1260 or send written notice of termination to FMG via facsimile at 858-451-2397in order to terminate service. FMG .
3.3 Default and Cure. In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within fifteen (15) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice and or email notification thereof to the defaulting party, may terminate this Agreement.
3.5. Charges. Subscriber agrees to pay for all charges attributable to Subscriber's use of the FMG Online Services at the then current FMG prices, which shall be exclusive of any applicable taxes. Subscriber is responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on FMG's income.
3.6. Payment. All charges for Services must be paid at least one month in advance, according to the then current prices applicable to the Services. There is no proration of such charges if service is terminated on other than the last day of your billing cycle. Upon entering this Agreement, Subscriber chooses to pay by direct charge to a credit or debit card.. Subscriber thereby authorizes FMG to charge Subscriber's credit or debit card to pay for any charges that may apply to Subscriber's account. Subscriber must notify FMG of any changes to Subscriber's card account (including, without limitation, applicable account number or cancellation or expiration of the account), billing address, or any information that may prohibit FMG from charging the account. If Subscriber fails to pay any fees and taxes within seven (7) days from applicable due date for credit card payments, the Subscriber's account shall be put into a suspension period of an additional fifteen (15) days. During this time Subscriber access to the services will be restricted. If during this fifteen (15) day suspension period, Subscriber provides valid payment information and pays the balance due in-full, service will be reinstated upon the processing of the new payment information. In addition, failure to fully pay any fees and taxes within thirty (30) days after the applicable due date will be deemed a material breach of this Agreement, justifying FMG's suspension of its performance of the Services and/or termination of this Agreement. Subscriber is responsible for any costs associated with reinstatement of Services, if any. Any such suspension or termination would not relieve Subscriber from paying past due fees plus interest at the lesser of 1-1/2% per month or the amount allowed by law in Subscriber’s state of residence. In the event of collection enforcement, Subscriber will be liable for any reasonable costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.
3.7 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason: (a) Subscriber's access to, and use of, the FMG Online Services will terminate; and (b) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.
3.8 Refund Policy Faulkner Media Group, LLC (FMG) products involve an initial set-up process and an associated set-up fee. The products also have a monthly recurring fee. If and when a client pays for services but fails to participate in the initial set up, a full refund for any monies paid will be made available to the client when requested.
In the event a client pays for services , participates in a set up call, but chooses not to complete the site set up, FMG will provide a 50% refund on the set-up fees paid by the client if the client cancels within 30 days of the set up call.
In the event that a client pays for services, participates in the set up call and either completes the site set up or calls to cancel 31 days or more after the set up call, there will be no refund on the set-up fees portion of the order.
Regarding the monthly recurring fees, amounts paid are non-refundable. Subscriptions to FMG services are pre-paid. As such, any cancellation that occurs in the middle of a subscription period will be made effective on the final day of the prepaid term.
Clients are solely responsible for properly cancelling their account. The site owner must call 1-888-364-1260, option 1 and talk to a live representative to cancel their account. FMG, in its sole discretion, has the right to suspend or terminate an account and refuse any and all current or future use of the service, or any other FMG service, for any reason at any time. FMG reserves the right to refuse service to anyone for any reason at any time.
Please note that allowing a credit card to expire – or not submitting payment by check – regardless of invoice receipt status will not automatically cancel an account. FMG maintains all account data and may allow subscriptions to occur, in addition to providing a subscriber with continued access to an account. The subscriber will remain responsible for paying the monthly charge, which will accrue to the account, until FMG receives a cancellation notice. FMG will send notice to the email on record if a credit card is declined. FMG also may follow-up by phone or mail. FMG reserves the right to send delinquent accounts to a collection agency if they are not paid within 3 months. FMG also reserves the right to cancel an account if by reasonable means FMG is unable to secure payment within a reasonable period of time.
3.9 Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement.
ARTICLE 4 - LIMITED WARRANTIES
4.1 Subscriber Warranty. Subscriber represents and warrants to FMG that: (a) Subscriber has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Subscriber will only use the FMG Online Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (c) Subscriber warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Subscriber receive notice of any claim regarding the FMG Online Services, Subscriber shall promptly provide FMG with a written notice of such claim.
4.2 FMG Warranty. FMG warrants that: (a) FMG has the authority to enter into this Agreement and perform its obligations under this Agreement; and (b) FMG will perform the services required under this Agreement in a professional and workmanlike manner.
4.3 Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, FMG MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF THE FMG ONLINE SERVICES PROVIDED TO SUBSCRIBER UNDER THIS AGREEMENT. FMG SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
ARTICLE 5 - FEES LIMITATION OF LIABILITY
FMG’s LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY SUBSCRIBER TO FMG THROUGH THE DATE A PARTY’S LIABILITY TO THE OTHER PARTY ACCRUES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS.
ARTICLE 6 - INDEMNIFICATION
6.1 Subscriber Indemnification. Subscriber agrees to indemnify, defend (at FMG's sole option and at Subscriber's sole expense) and hold harmless FMG, its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a third party claim arising out of or relating to Subscriber's use of the FMG Online Services or services provided hereunder. Subscriber specifically acknowledges that FMG shall not be liable to Subscriber for losses, if any, incurred as a result of Subscriber’s use of FMG Services.
6.2 FMG Indemnification. FMG agrees to defend, indemnify and hold Subscriber harmless from and against any costs, losses, liabilities, settlements, judgments and awards arising out of any claim or suit brought against Subscriber on the issue that the FMG Online Services or services infringes on a United States patent, copyright, trade secret, trademark or other intellectual property right, provided that Subscriber notifies FMG in writing, within 10 business days, of any such claim or suit, and gives FMG control of the defense and/or settlement of any such action. FMG agrees that it shall not enter into any settlement agreement requiring any payment, action or admission by Subscriber without Subscriber’s prior written consent, which consent shall not be unreasonably withheld. Subscriber shall have the right to hire its own counsel solely for the purpose of monitoring any such action, at Subscriber’s own expense. FMG shall not be liable for any costs or expenses incurred by Subscriber without FMG’s prior written authorization.
If the FMG Online Services or services become, or in FMG’s judgment are likely to become, the subject of a claim that it infringes a United States patent, copyright, trade secret, trademark or other intellectual property right or if FMG settles a claim of infringement, FMG may at its option obtain for Subscriber the right to continue using the FMG Online Services or services or replace/modify the FMG Online Services or services to make it non-infringing with substantially comparable performance. If such replacement or modification fails for any reason, FMG shall terminate Subscriber’s subscription to the FMG Online Services Service Plan and refund to Subscriber all fees paid hereunder.
ARTICLE 7 - CONFIDENTIAL INFORMATION
"Confidential Information" will include the terms of this Agreement, any software provided by FMG under this Agreement, the logon identifiers and/or passwords provided to Subscriber , the prices and fees charged under this Agreement, any other materials marked confidential by Subscriber or FMG and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance or that a reasonable person would presume to be confidential due to the nature of the information disclosed. Each party acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (d) publicly available; (e) already in the other party's possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the other party without reference to the disclosing party's Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity; provided to the extent permitted under applicable law no less than ten (10) days written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.
ARTICLE 8 - PROPRIETARY RIGHTS
No right (except for the license granted in Section 2.2), title or interest of intellectual property or other proprietary rights in and to the FMG Online Services and/or other products or services made available under this Agreement is transferred to Subscriber hereunder. FMG and its Third Party Licensors retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the FMG Online Services and/or other products or services provided under this Agreement. Subscriber will retain all right, title and interest to the documents created by Subscriber using the FMG Online Services, subject to any rights of FMG in underlying works from which such documents were derived.
ARTICLE 9 - MISCELLANEOUS
9.1 Assignment. Subscriber will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without FMG's prior written consent, which consent may be withheld, delayed or conditioned in FMG's discretion. FMG will have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to Subscriber.
9.2 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism.
9.3 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of FMG and Subscriber. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of FMG and Subscriber; (b) any oral modifications to this Agreement; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
9.4 Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless a party in good faith deems the unenforceable provision to be essential, in which case such party will have the right to terminate this Agreement.
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9.6 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
9.7 Governing Law; Jurisdiction; Dispute Resolution with Third Party Licensors. This Agreement will be interpreted and construed in accordance with the laws of the State of California, without regard to conflict of law principles. All disputes brought by Subscriber arising out of this Agreement shall be brought only in the district and federal courts located in or for California. All disputes brought by FMG arising out of this Agreement shall be brought only in the district and federal courts located in or for the state the agent is licensed.
9.8 Non-solicitation. Subscriber acknowledges and agrees that the employees and consultants of FMG are a valuable asset to FMG and difficult to replace. Accordingly, Subscriber agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and non-renewal or termination of this Agreement, Subscriber will not solicit or attempt to solicit any employee or consultant of FMG.
9.9 System and Network Security. Violations of system or network security are prohibited, and may result in criminal and civil liability. FMG may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by FMG. Such labor is categorized as emergency security breach recovery and is currently charged at $250 USD per hour required. Inquiries regarding security matters may be directed to Head of Security at security@FMG.com.
FMG is concerned with the privacy of online communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, FMG urges its Subscribers to assume that all of their online communications are insecure. FMG cannot take responsibility for the security of information transmitted over FMG's facilities.
9.10 Copyright Infringement - Software Piracy Policy. The FMG Online Services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights.
In compliance with the Digital Millennium Copyright Act (the "DMCA"), please send DMCA notifications of claimed copyright infringements to: Legal Department, Faulkner Media Group, 10801 Thornmint Road #101, San Diego CA, 92127.
FMG will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
9.11 Network Responsibility. Subscribers have a responsibility to use the FMG service responsibly. This includes respecting the other Subscribers of FMG. FMG reserves the right to suspend and or cancel service with any Subscriber who uses the FMG Online Services in such a way that adversely affects other FMG Subscribers. This includes but is not limited to:
FMG will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a FMG Subscriber, whether or not the attacked account or computer belongs to FMG, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or Subscriber, of FMG is strictly prohibited.
Violations of this policy may be reported directly to the FBI's Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/hq.htm. FMG will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
9.12 Lawful Purpose. All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes, but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content.
Using any FMG service or product for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited.
Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of FMG services or products is prohibited. Using the FMG network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited.
Servers hosted within FMG network are open to the public. You are solely responsible for your usage of the FMG network and servers and any statement you make on servers hosted within the FMG network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.
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9.15 Suspension. If FMG in its sole discretion determines that a Subscriber's server has become the source or target of any violation concerning the FMG Acceptable Use Policy (AUP), FMG reserves the right to suspend network access to that server. While FMG will attempt to contact the Subscriber before suspending network access to the Subscriber's server(s), prior notification to the Subscriber is not assured. In certain cases, FMG will contact law enforcement and other agencies regarding these activities. Subscribers are responsible for all charges, as well as any fees relating to the investigation, suspension, administration and handling of their servers before, during and after the suspension period.
9.16 Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
9.17 Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes and renders ineffective all previous communications, representations, understandings and agreements, including, but not limited to, all terms of any “shrinkwrap”, “clickwrap”, “browsewrap” or other FMG license included in any package, media (including the Internet), electronic version of the FMG Online Services, and of any other FMG form not signed by Subscriber and any terms or conditions on FMG’s website (excluding this document as approved by Company), either oral or written, between the parties with respect to said subject matter.
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