By purchasing a Web123 Product or Service, you confirm that you (the client) agree to adhere to these terms of service. These terms of service are legally binding and represent an agreement between you (the client) and Big Little Holdings (the provider/”Web123″).

1. GENERAL TERMS OF SERVICE

1. Web123 designs, builds and hosts websites and provides online and telephone support.
2. The Client has the right to, title, and interest in a website containing intellectual property owned by the Client together with, but not limited to textual content, video and/or audio. Clients and Resellers acknowledge that any design created by Web123 or its resellers using the Web123 CMS templates remain the property of Web123 and cannot be replicated elsewhere. 
3. The Client warrants Web123 to host its website unless otherwise advised in writing per the relevant notice periods.
4. Web123 websites are hosted either in its own proprietary CMS platform or on an alternate open source CMS platform. All new sites will be built on an open source CMS platform.
5. This agreement shall take full force and effect as and from the date of the Client’s purchase of any Web123 product or service upon making payment the Client is deemed to have read and understood these terms.
6. Web123 shall supply to the Client all services necessary to effectively host the Client’s website and make available for a fee to the Client the services of Web123 to provide to the Client online support, telephone support for the ongoing administration and maintenance of the Client’s website hosted by Web123 in circumstances where the Client requests such support.
7. This Agreement may change from time to time. In the event that this Agreement changes, Web123 shall advise the Client in writing at least 14 days before the changes shall take effect. If the Client asserts that any changes to this Agreement show unfair bias against the interests of the Client in favour of Web123, the Client agrees to dispute the application of the changes in writing prior to the changes taking effect. In the event of a dispute the Client will either be provided with a written exemption from the specific changes within this Agreement that the Client asserts to be unfair, or if this is not possible the Client may at its option terminate this Agreement by giving One Months notice to Web123 whereupon Web123 shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement. In the event Web123 are required to advise the Client of such a change of the Terms of Service or Costings Agreement, the Client may at its option terminate this Agreement by giving One Months notice to Web123 whereupon Web123 shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement.
8. The Client agrees that Web123 is assigned the right to use any and all of the Client’s IP at no charge to showcase the work completed by Web123 for the Client, at Web123’s discretion. This may include but not limited to trademarked logos, supplied images and written copy supplied by the client in the production of any Web123 product or service.
9. Web123 have a Fair Use policy, and the Client upon executing this Agreement is deemed to have read and understood the Fair Use policy of Web123 and agreed to be bound by it.
10. The Fair Use policy of Web123 may change from time to time. In the event this policy changes Web123 shall advise the Client in writing within 7 days of the change. In the event Web123 are required to advise the Client of such a change of the Fair Use policy, the Client may at its option terminate this Agreement by giving 30 days notice to Web123 whereupon Web123 shall charge for services rendered up to the date of termination of this Agreement which is to be paid in full by the Client on or before the date of the termination of this Agreement.
11. Notwithstanding anything contained in the Fair Use policy of Web123 as set out in Clause 6 of this Agreement, the Client warrants to Web123 that it is the lawful owner of, or has permission from the lawful owner to publish all intellectual property published on its website that it has requested Web123 to host. In the event that the Client, in allowing Web123 to host its website breaches any law of, but not limited to any State or Territory of the Commonwealth of Australia and/or the Commonwealth of Australia, Web123 may terminate this Agreement without prejudice to the rights of Web123 to seek one or all of compensatory damages indemnities relating to liability incurred as a result of the Client’s aforementioned breaches.
12. Web123 may terminate the Agreement without notice to the Client in the event Web123 becomes aware of any of the following:
    – Content on the Client’s website (including content generated by users of the Client’s website) that does not comply with the Fair Use policy of Web123 as set out above
    – Notwithstanding the terms of Fair Use policy of Web123 any matters that is either offensive and/or obscene, seditious, blasphemous, defamatory or inappropriate in the opinion of Web123
    – Repudiatory conduct as defined under Clauses 6.
    – Any outstanding invoices not paid to Web123 within the specified payment terms under Clause 6.
13. The Client warrants to Web123 that all website logins & email accounts will contain a strong password protocol which is defined as a password that is reasonably difficult to guess in a short period of time either through human guessing or the use of specialised software. A strong password should contain: at least 8 characters, contain both upper and lower case alphabetical characters, have at least one numerical character and at least one special character. A strong password should not: spell a word or series of words that can be found in a standard dictionary, spell a word with a number added to the beginning or the end, or be based on any personal information such as user ID, family name, birthday etc.
14. Should an email account be corrupted due to failures to adhere to this protocol, Web123 reserves the right to immediately terminate the affected email domain and all associated accounts without providing backups, and charge to the client an hourly rate of $185 inc GST for all technical works required to resolve issues arising from this.
15. The Client warrants to Web123 that it shall not by its conduct frustrate Web123 from hosting its website or withhold the necessary support to Web123 for the effective hosting of the website. Web123 shall not be liable for any interruption to the provision of the Client or the hosting services where an interruption is beyond the control of Web123 including but not limited to force majeur.
16. Web123 warrant to the Client that 99.99% of the time in any given month the Client’s website will work when accessed from a browser with unrestricted access to the internet. In this Service Level Agreement the expression “availability” shall have the meaning of availability to users of the internet unaffected by local or network limitation. Web123 shall not be liable for any losses in circumstances where the Client’s site is offline at any point reflecting a monetary sum beyond the sum required paid for hosting in that given calendar month.
17. In the event Web123 terminates this Agreement as a result of any breach by the Client and withdraws its hosting services, whereby the Client’s web page is no longer hosted on the internet:
    – Web123 will not be liable for any loss or damage arising from the withdrawal of the hosting services from the Client.
18. Should any breach be resolved and the Client desirous of reactivation of services, Web123 will charge a reactivation fee of no less than $499 including GST to cover Web123’s reasonable costs incurred as a result of the breach, to be paid in full before reactivation.
19. Should a site be deactivated for a period in excess of 6 month for any reason a new website would need to be purchased at a cost to be advised at such time in accordance with current applicable pricing structures.
20. Web123 will advise the Client of any foreseeable interruption to the hosting service.
21. The Client agrees to advise Web123 of any change of contact details. Web123 will not be liable for any consequences of tax invoices or other notices or documentation being sent to incorrect addresses as a result of a failure of the Client to provide notice of a change of said details, including deactivation of websites due to non payment of invoices.
22. In this Agreement Web123 shall provide services to the Client for fees as advertised within the Web123 website at https://web123.com.au/service-schedule
23. Web123 charges all fees upfront, in advance. Payment of website hosting and support fees are charged on the 1st of each calendar month, and payable via automatic credit card payment processing. For Clients wishing to pay via direct deposit an invoice for six or twelve months of ongoings will be issued to the Client no less than seven days before the due date. Any unpaid invoices will result in the suspension of all services as per Clauses 11-14 (above). The ongoing hosting and support of a site becomes due on the 1st day of the following month after the creation of a functional staging site environment
24. Web123 reserves the right without notice to increase ongoing fees related to the hosting and technical support of Client websites. Annual price increases may occur at any time in accordance with service package alterations and any changes in technology and the infrastructure required to maintain the Client’s website and/or email services.
25. Web123 reserves the right to classify a project as abandoned should no contact be made by the Client for three months or more. All abandoned projects will be archived for a further period of three months only, at which point the project will be purged from our servers and a new website package will be quoted in accordance with the current pricing structure.
26. Any abandoned projects for which a deposit has been paid will not be refunded, and any work completed by Web123 remains the property of Web123.
27. Any extra hours completed by Web123 beyond the initial deposit received, will be invoiced to the Client upon the project being marked as abandoned. Should the Client fail to pay this invoice Web123 reserve the right to engage its debt recovery agency to recoup monies owing on its behalf, and the fees for this will be passed onto the Client in addition to the outstanding amounts.
28. Should additional changes be requested outside the scope of the project brief or allocated project hours are reached, additional fees will apply. Web123 warrants that an estimate will be provided for approval before any additional work is commenced.

2. SERVICE PROVISION AND COSTINGS

1. Web123 shall provide an ongoing support allocation inclusive in its regular ongoing costs with limits as defined in one the Hosting/Service page of this site. Any support incidents raised beyond these terms will be charged at a rate of $149 per hour including GST. Web123 reserves the right to waive additional charges for support at its discretion. The Client will not be charged for any support incidents determined by Web123 to be attributable to a problem with the underlying software or an error on the part of Web123.
2. Web123 reserves the right to decline the provision of technical support if a Client has unpaid hosting, or other outstanding amounts for which payment has not yet been received.
3. The Client warrants to Web123 and agrees to pay Web123 in full, in advance, at all times. No work will be commenced until payment has been received.
4. Ownership of all services including marketing campaigns and domain names remain the property of Web123 until payment has been made in full by the Client.
5. Web123 will renew all domains in our control unless the Client advises us otherwise, at least 7 business days before the expiry date and any associated fees will apply.
6. Should payment remain declined or be disputed after Web123 has provided a service, Web123 reserve the right to limit it’s services until such time as the payment has been received in full or the dispute has been resolved. Outstanding amounts may also be issued to debt collection agency for followup should the dispute remain unresolved, and Web123 reserve the right to charge the client for all fees incurred as a result of this.
7. Execute all documentation necessary to allow Web123 to directly debit from the Client’s credit card monthly charges for all and any products and/or work undertaken by Web123 for the Client.
8. Availability of funds: Ensure that valid credit card details are supplied to Web123 prior to the first of each calendar month, with sufficient funds to make payment to Web123 for any monies due and owing.
9. Should payment not be made by or on the due date of invoice, Web123 reserve the right to suspend any and all website services and at its discretion charge a reactivation fee of $499 before reinstating these services. Suspension of email accounts may also occur due to non-payment of hosting fees, in which case a $199 reactivation fee is applicable.
10. Should payment of any recurring monthly fees be declined where follow up from our Accounts Team is required for more than 30 days, Web123 reserve the right to charge the Client twelve months of website hosting in advance, in addition to a $99 administration fee for alterations made to the account.
11. Make payment upon receipt of a tax invoice from Web123 for all charges including but not limited to website hosting, domain names, technical support, SEO, websites and marketing packages, which shall all be charged in advance.
12. Make payments to Web123 upon receipt of a tax invoice from Web123 for excess charges for messages or data which shall be charged in arrears.
13. Make payments punctually on the first of each calendar month in accordance with the billing periods which shall be based on calendar months.
14. Our “No Hack Guarantee” is limited to restoration of a site using backups up to 30 days prior, at no charge. Any further work required is charged at our standard rate.

3. CANCELLATION:

1. In the event this Agreement is terminated by the Client, the Client agrees to pay to Web123 an amount to be costed on the basis of all services provided by Web123 that remain unbilled as at the date of termination. Any fees paid in advance for monthly hosting is non-refundable.
2. Provide to Web123 at least one full calendar month’s notification for any cancellation request, whereby the following calendar month’s hosting will also be charged as a final invoice. Notice must be provided by the account holder or a nominated representative (as identified by the Client) and clearly state the service to be cancelled, along with the date the cancellation is required to be actioned. If immediate cancellation is requested, Web123 reserve the right to charge the Client one calendar month’s hosting (in addition to any current amounts owing) before actioning the cancellation request. If the cancellation cannot be actioned due to non-payment, monthly fees will continue to incur and notice will need to be provided again once the account is up to date.
3. In the event the Client is a corporation, the directors of the Client agree to be parties to this Agreement and guarantee the performance of the Client and further agree to assume each and every liability and obligation of the Client pursuant to this Agreement in the event of and as and when the directors of the Client are called upon to do so for whatever reason. The obligations of the directors of the Client include but are not limited to the payment of any and all tax invoices rendered to the Client by Web123.
4. Websites or any part of websites built as part of our update and migration program cannot be moved to external hosting without the written consent of Web123. Certain access may be denied to ensure the integrity of copyright assets to protect all involved. Where a complimentary website rebuild has been provided, if the client chooses to terminate hosting of, or migrate this rebuilt site to an alternate provider, then the client will need to pay out a termination fee equivalent to a minimum of 12 months hosting.

4. FAIR USE, REPUDIATORY CONDUCT AND DISPUTES

1. Dependant upon the ongoing care plan chosen, Web123 generally applies fixed limits to the amount of support we give to our Clients per Web123’s proposal. The Client understands that any support required over and above the allocated support will be charged in arrears at the end of each month, at an hourly rate of $189.
2. The Client agrees to be bound by Web123’s Fair Use policy outlined in this section.
3. The Client agrees not to engage in excessive contact, which includes but is not limited to:
   – Repeatedly asking for assistance with matters outside Web123’s control, responsibility, or remit, after Web123 has advised the Client that this is the case, including but not limited to: basic computer assistance, assistance with emails on devices other than a desktop, business advice or other technical assistance not related to Web123’s services.
   – Repeatedly and unreasonably asking for assistance with matters with which Web123 has previously provided training. The Client agrees to endeavour to understand the training they are provided.
   – Excessive phone calls or emails to the extent that it has a detrimental impact on our ability to service our other Clients.
   – Demands for assistance with non-urgent matters outside of Web123’s support hours where urgency is determined at the sole discretion of Web123.
4. If Web123 determines that the Client is engaging in excessive contact, it will provide written notice to the Client of this determination, and the Client agrees that Web123 at its sole discretion may as a result undertake any or all of the following actions.
5. Apply a restriction on contact time permitted with the Client.
6. Invoice the Client for all or a portion of time spent on the phone, responding to emails and support tickets, and any other undertakings required to service the Client.
7. Suspend and/or terminate the Client’s provision of services, not before a third warning has been given.
8. Web123 agrees that notices of excessive contact must be provided within 30 days of said excessive contact and the determination can only be made on the basis of activity within the 90 days preceding the date the notice is issued.
9. The Client agrees that any dispute it wishes to make to a notice of excessive contact must be provided in writing to Web123 within 14 days of the issue of the notice.
10. The Client agrees not to engage in repudiatory conduct, which includes but is not limited to:
    – Abusive behaviour towards staff, agents, partners or directors of Web123, which includes threatening behaviour and/or speech.
    – Defamation of staff, agents, or directors of Web123, or of Web123 or related businesses.
11. The Client agrees that in instances of repudiatory conduct, Web123 is entitled to immediately terminate this agreement without prejudice to its rights to seek one or all of compensation, damages, or indemnities relating to the conduct.

 Last revised 20 January, 2021.

The Parties agree as follows:

SERVICES PROVIDED

Big Little Holdings Trust, trading as Web123 (hereafter referred to as “Web123”) shall provide to Client the services of Messenger Marketing & Chatbot Development & Management.

The period of this Agreement begins on the date a contract or agreement is accepted and signed by the client and continues until this Agreement is terminated pursuant to Paragraph 6 below.

CLIENT DUTIES

To get the most out of the services provided, the Client must respond to Web123 and it’s representatives in a timely manner and send any information requested so as to best achieve the intended results.
If an appointment is missed without notice, it is at Web123’s discretion to reschedule at a date and time convenient to them. If you need to cancel or reschedule an appointment, please notify Web123 at least 24 hours in advance.
The success of our working together falls on Client’s full participation and dedication to the services provided.

FEES, PAYMENT AND ONGOING TERMS

For all Services performed under this Agreement or other request for Services that references this Agreement, Client shall:
(i)pay Web123 at the current standard rates; and
(ii)provide credit or debit card details to Web123 to enable automated monthly recurring debits to be processed.
All payments pursuant to this Agreement are non-refundable.
In the event of a declined payment the Client understands that Web123 will retry payment daily. Outstanding invoices that remain unpaid for a period of 7 days or more will result in the services being suspended, until all amounts owing is paid in full. Web123 reserve the right to invoice Client an additional ten percent (10%) administration fee on top of any outstanding invoice, for which payment must be made before services are reactivated.
If any payment remains unpaid for a period of 21 days, this Agreement will be cancelled and Client will be required to pay the prorated amount due for services performed up to that date, as well as the remaining contracted term up to the end of the current 12 month period.
At the end of the 12 month contracted term the Client is required to provide a full campaign month’s notice of intent to cancel, otherwise the campaign will automatically renew for a further 12 month period. No refunds will be applied for campaigns once they have been renewed.

CONFIDENTIAL INFORMATION

Web123 and Client mutually agree to hold any and all Confidential Information exchanged between the parties as part of this Agreement in the strictest of confidence and to not disclose such information to any other person or entity.
Information shared in Facebook groups, in email, on calls, in video conferences, or any other means shall be maintained as confidential.
The Recipient of Confidential Information shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information of the Owner. The terms of this section shall survive the termination of the Agreement.

RIGHTS TO WORK PRODUCT

Any expression or result of Web123’s Services, or the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, software, and other technical information (collectively “WORK PRODUCT”) created by Web123 in the course of performing the Services hereunder are the property of Web123 and are licensed to Client, without further license fees, provided, however, to the extent such Work Product provided to Client by Web123 contains Client’s Confidential Information,
Client shall retain title to such Confidential Information. Client shall have no right to sublicense, transfer, assign, convey or permit any third party to use or copy any Work Product.
Web123 shall own all rights to all (“Inventions”), including inventions, designs, ideas, images, ad copy and creative, and information conceived in whole or in part by Web123 in connection with Services. Upon termination of Services, ownership of Inventions shall be retained by Web123.

TERMINATION OF PROFESSIONAL SERVICES

Unless otherwise agreed to, either party may terminate this Agreement at any time by giving the other party written notice of termination. If this Agreement is terminated by the Client, Client shall pay Web123 the pro-rated amount due for services performed up to that date, as well as the remaining contractual term up to the end of the current 12 month period.
Due to the extensive time involvement and nature of the professional services in this Agreement, refunds will not be given.

INDEPENDENT CONTRACTOR STATUS

Web123 performs this Agreement as an independent contractor, not as an employee of Client. Nothing in this Agreement is intended to construe the existence of a partnership or joint venture relationship between Client and Web123.

NO GUARANTEE OF RESULTS

The Services provided under this Agreement are for educational and informational purposes only. Client accepts, agrees and understands that you are fully responsible for your progress and results from your participation and that we offer no representations, warranties or guarantees verbally or in writing regarding your results of any kind.

The Client acknowledges that Web123 makes no warranty that a Chatbot campaign will generate any increase in sales, business activity, profits or any other form of improvement for the Client’s business or any other purpose. No liability whatsoever (except as provided by law) will be accepted by Web123 for any damages or loss arising from or as a consequence of the provision of the Services.

You are responsible for the results in your business which are dependent on personal factors including, but not necessarily limited to, your skill, knowledge, ability, dedication, network and financial situation, to name just a few. You also understand that any testimonials or endorsements by our clients, customers or audience represented on our websites, content, landing pages, sales pages or offerings have not been scientifically evaluated by us and the results experienced by individuals may vary significantly.

Any statements outlined on our websites, programs, content and offerings are simply our opinion and thus are not guarantees or promises of actual performance. We offer no professional legal, medical, psychological or financial advice.

REPRESENTATIONS AND WARRANTIES

Each party warrants that:
(i) All notices in this Agreement shall be in writing, and this Agreement has been duly and validly executed and delivered and constitutes a legal, valid, and binding obligation, enforceable against either party in accordance with its terms;
(ii) They have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform their obligations under this Agreement, without the approval or consent of any other party; and
(iii) They have sufficient right, title, and interest in and to the rights granted in this Agreement.
Big Little Holdings Trust, trading as Web123 warrants that the Services will be performed in a professional manner in accordance with recognised industry standards. To the extent Services provided are advisory, no specific result is assured or guaranteed.
Web123 expressly disclaims all other representations or warranties, whether express, implied, or statutory (by any Territory or Jurisdiction) to the extent permitted by law. Further Web123 expressly excludes any warranty of non-infringement, title, fitness for a particular purpose, or merchantability to the extent permitted by law.

LIMITATION OF LIABILITY

Maximum liability for any action arising under this agreement, regardless of the form of action and whether in tort or contract, shall be limited to the amount of services fees paid by Client for the Services from which the claim arose.

In no event shall Web123 be liable for indirect, special, incidental, or consequential damages of any kind, including without limitation, lost data or lost profits, however arising, even if Client has been advised of the possibility of such damages.

The parties agree to the allocation of risk set forth herein.

The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modification or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

Any legal action or proceeding relating to this Agreement shall be brought non-exclusively to relevant state and federal courts in Australia and each party consents to the jurisdiction thereof. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter described herein.

INDEMNIFICATION

You agree to indemnify and hold harmless Web123 and its employees, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against them based on or arising from any claim resulting from your breach of this Agreement. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorney’s fees and costs awarded against or otherwise incurred by us in connection with or arising from any such claim, suit, action, or proceeding.

You will immediately notify Web123 of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.

Web123 reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.

ASSIGNMENT

Neither party may assign its rights or obligations under this Agreement to any party, except, that the assignment to a third party who obtains all or substantially all of the business or assets of a party shall be permitted subject to the reasonable consent of the other party (i.e. the non- assigning party).

GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and interpreted in accordance with the laws of the State of Victoria, Australia without regard to the conflicts of laws and principles thereof. Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement, shall be only in a federal or state court having subject matter jurisdiction located in Melbourne, Victoria, Australia.

DISPUTE RESOLUTION

Any cause of action brought by Client against Web123 must be instituted within one year after the cause of action arises or be deemed forever waived and barred.
For every dispute regarding this Agreement:
(i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled;
(ii) each party consents to the jurisdiction of the courts of the State of Victoria and agrees that those courts have personal jurisdiction over each party;
(iii) venue will be in Victoria; and
(iv) the parties will submit the dispute to mandatory mediation held in Victoria or through an online mediation service agreed upon by all parties.
If the parties cannot agree on a mediator, then any party may apply at any time to the presiding judge of the Superior Court for the appointment of a mediator, and the judge’s selection is binding on all parties. The parties will share equally (50/50) in all costs of the mediation, including the mediator’s fees, but each party is solely responsible for its own attorneys and experts fees. Every mediation will be completed within 4 months of the date when the initial notice demanding mediation was provided by any party. If, for any reason, the dispute is not resolved through mediation within the 4-month period, then the parties may continue seeking to resolve the dispute via any process, including litigation by trial.
In no event shall Web123 be liable for any consequential, punitive or multiple damages of any kind.

FORCE MAJEURE

Except for Client’s obligation to pay Web123, neither party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government.

GENERAL

(a) You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
(b) This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
(c) The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
(d) If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
(e) The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights

ACKNOWLEDGEMENTS

The Client acknowledges the following with respect to services:
(i)Web123 has no control over the policies of social media platforms with respect to the type of sites and/or content they they accept now or in future. The Client’s ads may be disapproved/suspended at any time at the sole discretion of the social networks and the cost of new ad creation will be charged to the client.
(ii)The Client must give the Company ‘Admin’ access to its Facebook Page to enable Web123 to perform Services.
(iii) Audience target market selected for the Chatbot Campaign must be mutually agreed by the Client and Web123.
(iv) All the Ad accounts created by Web123 is the intellectual property of, and owned by, Web123.

CONTACT INFORMATION

If you have any questions or concerns, please contact Web123 by email at [email protected].

Last revised 22 May 2019.

AUDIOEYE TERMS OF SERVICE

AudioEye, Inc. (“AudioEye“, “us“, “our“, or “we“) offers various services (“Services“) and software (“Software” and, together with the Services, “Offerings“) to end users (“Users“) through this online platform (“Platform“).

These Terms are agreed to between AudioEye and you or, if you are accessing the Platform or using the Services on behalf of another individual, organization, or entity (“Entity“), that Entity (in either case, “you” or “your“).

These Terms are effective upon the date you first agree to these Terms by clicking “[I agree]” to these Terms or by accessing or using any Offering (the “Effective Date“). By accessing or using any Offering, or by clicking “[I agree]” to these Terms, you agree to enter into and be bound by these Terms. IF YOU DO NOT AGREE TO THESE GENERAL TERMS, OR DO NOT MEET ANY OF THE QUALIFICATIONS INCLUDED IN THESE TERMS, AUDIOEYE IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR ANY OFFERING AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR ANY OFFERING.

If you are entering into these Terms on behalf of an Entity, by accessing or using any part of the Platform or any Offering, you represent and warrant that you have authority to bind that Entity to these Terms. If you do not have such authority, or you do not agree to be bound by these Terms, do not access or use any part of the Platform or any Offering on behalf of such Entity.

THESE TERMS CONTAIN AN ARBITRATION PROVISION, WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AND PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.

Definitions

Capitalized terms used in these Terms have the definitions given in the context in which they are used. All other terms used herein have the plain English (US) meaning.

Orders

Your access to and use of any Offerings made publicly available by AudioEye is subject to your compliance with these Terms. If You have placed or later place an order through the Platform seeking to access and use of any Offering (an “Order“), your access to and use of that Offering is also subject to that Order.

All Orders will be governed by the terms of these Terms. AudioEye will have no obligation or responsibility with respect to any Order until accepted by AudioEye. Acceptance of any Order is in AudioEye’s sole discretion. Once accepted by AudioEye, each Order will constitute a part of these Terms. Only the terms of each Order accepted by AudioEye will constitute a part of this Agreement and any terms contained in any other document that you may provide to AudioEye, including any other terms provided in connection with any Order, are void, of no force or effect, and will not be enforceable against or otherwise bind AudioEye. If there is a conflict between these Terms and the terms of any Order, these Terms will control unless the Order expressly indicates that it is intended to supersede the provisions of these Terms.

Entire Agreement

Unless you have entered into a separate written agreement with AudioEye expressly providing otherwise, these Terms and each Order together comprise the entire agreement between you and AudioEye with respect to the Platform and each Offering made available to you by or on behalf of AudioEye and supersede all prior or contemporaneous communication and proposals (whether oral, written, or electronic) between you and AudioEye with respect to the Platform and each Offering.

Platform

If the Platform through which you are purchasing access to, accessing, or seeking to access an Offering is the through AudioEye’s marketplace, then these Terms also apply to your access and use of the Platform.

If the Platform through which you are purchasing access to, accessing, seeking access to any Offering is a third party marketplace or platform, then the applicable terms and conditions provided by such third party (“Third Party Platform Terms“) apply to your access to and use of the Platform and these Terms apply only to your access to and use of the Offerings.

If there is a conflict between these Terms and any such Third Party Platform Terms, these Terms will control in all respects to your access to and use of any Offering and such Third Party Platform Terms will apply with respect to your access to and use of the Platform.

Changes

We reserve the right to make changes to these Terms or to the Platform or any Offering at any time, with or without prior notice, by making those modifications available to you or by checking the Terms on our website at https://www.audioeye.com/terms-of-service. You are solely responsible for checking our website for any changes. Your continued use of the Platform and any Offering following any such changes to these Terms or to the Platform or any Offering constitutes your acceptance of those changes. If you do not agree with any changes, you may withhold your consent by not accessing the Platform or any Offering or by terminating these Terms as permitted herein. You agree that AudioEye and its subsidiaries and affiliates, including their respective directors, officers, members, employees and advisors, will not be liable to you or to any third party for any modification of these Terms or the Platform or any Offering, suspension of your access to the Platform or any Offering, or discontinuance of the Platform or any Offering.

We can make necessary deployments of changes, updates or enhancements to the Services at any time. We may also add or remove functionalities or features, or we may suspend or stop the Services altogether.

Eligibility

We require that the Platform and the Offerings be accessed and used only by individuals who are not minors and who can legally enter into binding contracts with AudioEye under applicable Laws (typically persons 18 years of age or older, depending on the Laws applicable to you). By accessing or using the Platform or any Offering, you represent and warrant that you are not a minor and are legally permitted to enter into a binding contract, including these Terms, with AudioEye under applicable Law. We reserve the right to refuse to provide you access to the Platform or any Offering for any reason.

Privacy

Your privacy is very important to us. Separate from these Terms and as made available from https://www.audioeye.com/privacy-policy/, we have provided our Privacy Policy to explain our privacy practices in detail. AudioEye reserves the right to revise the Privacy Policy from time to time and will provide reasonable notice of such revisions.

Use of the Software

Subject to your compliance with these Terms, during the Term AudioEye grants to you a non-exclusive, non-transferable limited license to (1) install the Software made available to you by or on behalf of AudioEye (in object code format only) solely on the number of websites owned or controlled by you (“Websites“) specified in each Order and (2) operate the Software for your own lawful business purposes as necessary to access and make available the Services to those Websites.

Access to the Services

Subject to your compliance with these Terms, during the Term AudioEye will permit you to access and use (1) the Platform solely for your own lawful business purposes, and (2) the Services solely in connection with your permitted use of the Software.

Restrictions

The Platform, all Offerings, and the software, hardware, databases, and other technology used by or on behalf of AudioEye to operate and provide the Platform and Offerings (“Technology“), constitute valuable trade secrets of AudioEye and its suppliers and providers. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in these Terms; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, or create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance, or functionality of the Technology; (9) interfere with us, the operation or hosting of the Technology or any Offering; (10) frame or utilize framing techniques to enclose the Platform or any Content or create a link to the Platform accessing any Content; (11) use any circumvention tools, meta tags or any other “hidden text” utilizing any AudioEye Mark or URL; or (12) robotically or otherwise automatically harvest, scrape, extract, copy, access or collect any information or data from the Platform or any Offering.

Use Limits

You agree to purchase offerings that will be sufficient to support your use and access to the Software on each Website in which you use the Software. The Software may contain functionality for limiting the operation of the Software to the number of Websites specified in each applicable Order or to the other limitations contained in these Terms. In addition, AudioEye reserves the right to monitor your use of the Offerings to ensure compliance with this Agreement. If AudioEye has reason to believe you are not in compliance with the rights granted under this Agreement, AudioEye reserves the right to take such action as is deemed necessary, including assessing additional charges by means of automatic upgrades if applicable or terminating your access to the applicable Offering without providing you with a refund.

Installation and Implementation

You are solely responsible for installation and implementation of all Offerings on and in connection with your Website(s). By installing or implementing any Offering, you acknowledge and agree that AudioEye is provided with control to apply changes to the rendered document object model (“DOM“).

Support

Subject to compliance with these Terms, AudioEye may provide support for the Offerings as specified at http://www.audioeye.com/sla (the “SLA“). You may also visit the AudioEye Customer Support Help Desk available at http://help.audioeye.com. AudioEye has no obligation to provide support for any Offering except as specified in this Section. All support will be provided in accordance with AudioEye’s then current support policies.

Ownership

Except as expressly specified in these Terms, you are granted no licenses or other rights, whether by implication, estoppel, or otherwise, in or to the Platform or any Offering. AudioEye and its suppliers and licensors retain all right, title and interest in and to the Platform, all Offerings, and all other Technology, any and all additions, improvements, updates, upgrades, and modifications thereto and new versions thereof, and all intellectual property and proprietary rights, rights of publicity, rights of privacy, and other legal rights protecting data, information, or intangible property throughout the world, including any and all copyrights, trademarks, service marks, trade secrets, patents, moral rights, rights in datasets or databases, and contract rights (“Intellectual Property“) therein and related thereto. You receive no ownership interest in or to the Platform, any Offering, or any other Technology. You are not granted any license or other right to access or use the Technology itself apart from your access to and use of the Platform and other Offerings under the licenses and rights expressly granted in these Terms.

The AudioEye name and logo and all other trademarks appearing on the Platform or in any Offering (“AudioEye Marks“) are the property of AudioEye and its suppliers and licensors. You are not granted any license or other right to use any AudioEye Marks other than as part of your permitted use of and access to the Platform and Offerings.

Third Party Offerings 

To the extent any product or service of any third party (a “Third Party Offering“) is provided in connection with or as part of any Offering, your access to and use of that Third Party Offering is subject to the terms of any third party agreement applicable to such Third Party Offering (which may include payment of additional fees) (a “Third-Party Agreement“). For any Third-Party Offering specifically indicated by AudioEye to be subject to the terms of a Third-Party Agreement, the terms of the applicable Third-Party Agreement will apply to the Third-Party Offering independent of the terms of this Agreement. All other Third-Party Offerings provided to you may be used only under these Terms. Unless otherwise stated in this Agreement, AudioEye has no control over, is not responsible for and does not provide support for, any Third Party Offering provided under a Third Party Agreement.

Account and Security

To attain access to and utilize certain aspects of the Platform and certain Offerings, you must register with us to open an account (“Account“). Approval of your request to establish an Account will be at the sole discretion of AudioEye. Each Account and the user identification and password for each Account, including any private keys or other codes associated with or used to access each Account (the “Account ID“) is personal in nature. Each Account is for your personal use and each Account ID may be used only by you alone. You will not distribute or transfer your Account or Account ID without our prior written permission, nor will you provide any third party with the right to access or use your Account or Account ID. You are solely responsible for all use of Platform and all Offerings accessed through your Account. All transactions completed through your Account or under your Account ID will be deemed to have been lawfully completed by you. As part of the Account registration process, you will submit your email address and select a password. You shall provide us with accurate, complete, and updated Account information. You agree that you will not (1) select or use the email address of another person with the intent to impersonate that person; (2) use a name subject to the rights of any other person without authorization; or (3) use an email address that AudioEye, in its sole discretion, deems inappropriate or offensive.

You will ensure the security and confidentiality of Your Account and Account ID. You will immediately notify us of any known or suspected unauthorized use(s) of your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your Account ID. You understand and agree that you shall be liable for any activity performed by others using your Account or your Account ID. We are not responsible for any loss or damage arising from your failure to maintain the confidentiality of your Account ID.

We may immediately terminate your Account, or suspend your access to your Account, in our sole discretion and without notice for conduct that we believe is: (a) illegal, fraudulent, harassing or abusive; (b) a violation of these Terms or any other policies or guidelines posted by AudioEye; or (c) harmful to other users, third parties, or the business interests of AudioEye. Use of an Account for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice to you. If you file a claim against AudioEye, or a claim which in any way involves AudioEye, then we may terminate your Account. Upon any suspension or termination of your Account, (i) you may not establish a new Account for a period of one year (or such other duration as we may determine in our sole discretion) from the date of termination, (ii) we will have no obligation to notify any third parties regarding such termination, and (iii) you will be responsible for any damages that may result or arise out of termination of your Account.

AudioEye Content

Unless otherwise noted on the Platform or through any Offering, other than Your Content (as defined below), all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other content (“Content“) available through the Platform or any Offering (“AudioEye Content“) is owned by AudioEye, the Users providing that Content, or AudioEye’s other third party providers. All AudioEye Content is for informational purposes only and you are solely responsible for verifying the accuracy, completeness, and applicability of all AudioEye Content and for your use of any AudioEye Content. Any dated AudioEye Content is published as of its date only, and AudioEye does not undertake any obligation or responsibility to update, supplement or amend any such AudioEye Content. Subject to your compliance with these Terms, you may access the AudioEye Content solely for your own personal and internal business purposes in connection with your own use of the Platform and Services.

You will not, and will not permit any third party to: (1) alter, modify, reproduce, or create derivative works of any AudioEye Content; (2) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any AudioEye Content; or (3) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any AudioEye Content. If no specific restrictions are displayed, you may make copies of select portions of the AudioEye Content, provided that you use all copies only for your own personal and internal business purposes in accordance with the terms and conditions of these Terms.

Neither AudioEye, nor our other Users, suppliers or service providers have verified the accuracy of or will be responsible for any errors or omissions in any AudioEye Content. Without limiting the foregoing, AudioEye will not be held liable to you or any other third party for any AudioEye Content, including both AudioEye Content and Your Content, under applicable Law, including the Communications Decency Act, 47 U.S.C. § 230. Except as set forth in these Terms, you are granted no licenses or rights in or to any AudioEye Content or any Intellectual Property therein or related thereto.

Your Content

You are solely responsible for all Content you provide, upload, submit, or post to, or generate through access to or use of the Platform or Services (“Your Content“). You are solely responsible for all of Your Content, including the resolution of any disputes that may arise between you and any User or other Entity because of Your Content. By providing, uploading, submitting, posting, or generating Your Content, you grant us, our affiliates, and each of our respective vendors, suppliers, service providers, and business partners a non-exclusive, transferable, fully sublicensable, perpetual, irrevocable, royalty-free, fully paid up, worldwide license to use, copy, store, reproduce, modify, display, adapt, publish, translate, publicly perform, digitally perform, publicly display, and distribute Your Content and to prepare derivative works based on Your Content, or incorporate Your Content into other works, with or without consideration and with or without attribution or any duty of accounting to you. You understand that all of Your Content may be visible to, sent to, and viewed by other Users and you expressly waive any privacy rights you may otherwise have in Your Content. You agree to allow us, if we elect in our sole discretion, to provide Your Content to other Users.

You are solely responsible for Your Content. By providing, uploading, submitting, posting, or generating Your Content, you represent, warrant, and covenant that: (1) Your Content is accurate, complete, and current; (2) Your Content does not violate these Terms or any applicable federal, state, local, international, or other law, statute, rule, or regulation (“Law“) of any federal, national, state, provincial, local, or other government, governmental, regulatory, or administrative authority, agency, or commission or any court, tribunal, or judicial or arbitral body; (3) you have fully complied with all applicable Laws relating to Your Content; (4) Your Content will not contain any untrue statement of fact or omit to state a fact required to be stated or necessary to make such a statement not misleading in light of the circumstances under which it is made; (5) Your Content is not unlawful, harmful, threatening, abusive, harassing, libelous, defamatory, discriminatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, religiously, sexually, or similarly offensive, or otherwise objectionable; (6) Your Content does not encourage fraudulent or tortious activity or conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable Law or individual privacy rights; (7) Your Content does not constitute an infringement or misappropriation of the Intellectual Property or other rights of third party; (8) Your Content is not an advertisement or solicitation of funds, goods, or services; (9) Your Content is not false, misleading, incomplete or inaccurate; (10) Your Content could not be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement; and (11) you have all right, title, interest and consent in Your Content necessary to allow us to use Your Content as permitted under these Terms. You agree that you will promptly update Your Content in the event that Your Content is no longer in compliance with these Terms or if you discover that any of Your Content previously provided was not in compliance with these Terms when provided, uploaded, submitted, posted, or generated. AudioEye is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your Content.

Your Conduct

You agree not to harass, advocate harassment, or to engage in any conduct that is abusive or harmful to any Entity. We reserve the right, but are not obligated, to investigate and/or prohibit any conduct, or remove or refuse to post any Content (including Your Content), that we deem in our sole discretion to be unlawful, harmful, in breach of these Terms, or otherwise offensive to you, the Platform, Users, our customers, our rights, or any Entity. We assume no liability for any action or inaction with respect to your conduct, communication, or Content. Additionally, we may disclose any Content or electronic communication of any kind: (1) to satisfy any Law or government request; (2) if such disclosure is necessary or appropriate to operate the Platform or any Offering; (3) to protect our rights or property, our Users and customers, you, or any other Entity; or (4) if, in our sole discretion, such Content or electronic communication should be referred to law enforcement or other government authorities.

Your Consent to be Contacted

YOU EXPRESSLY AUTHORIZE AUDIOEYE TO CONTACT YOU IN ANY LAWFUL MANNER AND FOR ANY LAWFUL PURPOSE, INCLUDING ACCOUNT SUPPORT OR TO INFORM YOU OF OR PROMOTE OR MARKET AUDIOEYE AND THIRD PARTY OFFERINGS WHICH AUDIOEYE BELIEVES MAY BE OF INTEREST TO YOU, AND YOU HEREBY UNAMBIGUOUSLY AGREE AND EXPRESSLY CONSENT TO RECEIVE SUCH EMAILS AND TELEPHONE CALLS.

YOU EXPRESSLY CONSENT TO BE CONTACTED AT THE TELEPHONE NUMBERS (INCLUDING MOBILE OR WIRELESS NUMBERS) AND EMAIL ADDRESSES YOU PROVIDE TO AUDIOEYE. YOU REPRESENT AND WARRANT THAT ANY MOBILE OR WIRELESS TELEPHONE NUMBER YOU PROVIDE BELONGS TO YOU AND IS ASSOCIATED WITH A MOBILE DEVICE IN YOUR POSSESSION. YOU HEREBY AGREE TO NOTIFY AUDIOEYE AT YOUR EARLIEST CONVENIENCE IF YOUR MOBILE OR WIRELESS TELEPHONE NUMBER CHANGES. SHOULD YOU HAVE ANY QUESTIONS ABOUT WHICH TELEPHONE NUMBERS OR EMAIL ADDRESSES YOU PROVIDED TO AUDIOEYE FOR THE ABOVE, PLEASE REVIEW YOUR ACCOUNT INFORMATION IN YOUR ACCOUNT DASHBOARD OR BY EMAILING [email protected].

YOUR CONSENT TO THE TERMS OF THIS SECTION IS NOT REQUIRED, DIRECTLY OR INDIRECTLY, AS A CONDITION OF PURCHASING ANY OFFERING FROM AUDIOEYE. SHOULD YOU NOT WISH TO CONSENT TO BEING CONTACTED FOR EITHER OR BOTH ACCOUNT SUPPORT OR PROMOTIONAL PURPOSES, OR TO REVOKE A CONSENT PREVIOUSLY GIVEN, YOU AGREE TO NOTIFY US AS PERMITTED BY THESE TERMS OR THROUGH YOUR PERSONAL PREFERENCES VIA YOUR ACCOUNT DASHBOARD TO CLEARLY INFORM AUDIOEYE OF YOUR DESIRE TO REVOKE CONSENT.

Disclaimer

THE PLATFORM AND ALL OFFERINGS AND CONTENT ARE PROVIDED ON AN “AS-IS”AND “AS AVAILABLE” BASIS FOR YOUR USE SOLELY AS SPECIFIED HEREIN WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALL STATUTORY AND OTHER IMPLIED WARRANTIES, CONDITIONS, AND REPRESENTATIONS ARE HEREBY DISCLAIMED, INCLUDING ALL WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR FROM AUDIOEYE’S CONDUCT IN COLLECTING, COMPILING, OR INTERPRETING ANY DATA OR INFORMATION. NEITHER WE NOR OUR THIRD PARTY SUPPLIERS MAKE ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE PLATFORM OR ANY OFFERINGS OR CONTENT. NEITHER WE NOR OUR THIRD PARTY SUPPLIERS WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM OR ANY OFFERINGS OR CONTENT AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE PLATFORM, OFFERINGS, OR CONTENT OR THE DELIVERY THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM, OFFERINGS, OR CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PLATFORM AND ALL OFFERINGS AND CONTENT REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, AUDIOEYE, ITS AFFILIATES, THIRD PARTY SUPPLIERS, LICENSORS AND BUSINESS PARTNERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS, (COLLECTIVELY, THE “AUDIOEYE PARTIES“) SHALL NOT BE LIABLE WITH RESPECT TO THE PLATFORM, ANY OFFERINGS OR CONTENT, OR ANY OTHER SUBJECT MATTER OF THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR (1) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, EVEN IF AUDIOEYE AND/OR ANY OF THE AUDIOEYE PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (2) THE USE OR THE INABILITY TO USE THE PLATFORM OR ANY OFFERING OR CONTENT, OR (3) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE ENTIRE LIABILITY OF AUDIOEYE OR ANY OF THE AUDIOEYE PARTIES TO YOU OR ANY THIRD PARTY EXCEED THE AMOUNT THAT YOU PAID TO AUDIOEYE OR ITS DESIGNEES FOR THE APPLICABLE OFFERINGS UNDER THESE TERMS DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF LOSS.

YOUR SOLE REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE PLATFORM OR ANY OFFERINGS IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ANY USE OF THE PLATFORM AND THE OFFERINGS.

Some jurisdictions do not allow the limitation of liability, so the foregoing limitation may not apply to you. In such states or jurisdictions, the liability of AudioEye and its AudioEye Parties shall be limited to the fullest extent permitted by applicable law.

Links to Third Party Sites

The third-party links provided throughout the Platform will let you leave the Site. These links are provided as a courtesy only, and the sites they link to are not under our control in any manner whatsoever and are not otherwise covered by these Terms. Therefore, we are in no manner responsible for the contents of any such linked site or any link contained within a linked site, including any changes or updates to such sites. We are providing these links merely as a convenience, and the inclusion of any link does not in any way imply or express affiliation, endorsement or sponsorship by AudioEye of any linked site and/or any of its content therein.

Term

The term of these Terms (“Term“) will begin on the Effective Date and will continue until terminated as set forth herein.

The term of each Order will continue for the initial duration stated on that Order. The term of each Order will thereafter renew for successive renewal terms as follows: (1) for Orders specifying a monthly term, the Order will renew for successive monthly terms unless you provide us with notice as specified herein of your intent not to renew such Order prior to the end of the then-current term; and (2) for Orders specifying annual or multi-year terms, the Order will renew for successive terms of the same duration or, at our sole discretion, for monthly, quarterly, or annual terms, unless you provide us with notice as specified herein of your intent not to renew such Order prior to the end of the then-current term.

The Offering subject to Your Order is subject to an automatic upgrade based on usage. Automatic upgrades provide for higher levels of usage and provide for higher fees. Pricing schedules can be referenced at https://www.audioeye.com/plans-and-pricing. Once an Offering is automatically upgraded it remains available for the higher level of usage for the remainder of the term. Additional charges due to automatic upgrades will be prorated and charged to the payment method active on the account at the time of upgrade. IN LIGHT OF THE FOREGOING, YOU ARE ADVISED TO MONITOR YOUR USAGE.

For any Offering provided on a trial basis, all access to and use of such Offering(s) may, at the end of the trial period, convert into a Fee-based Offering for the term identified in the Order applicable to such Offering, unless you provide us with notice as specified herein of your intent not to have such trial Offering convert prior to the end of the applicable trial period.

Termination

You may terminate your Account or any Order at any time by providing notice to us as specified herein. Termination of your Account will terminate these Terms and all Offerings then provided to you. Termination of any Order will only terminate such Order. Notwithstanding any such termination, you will continue to owe AudioEye all Fees due through the end of the then current term applicable to any Order(s) subject to such termination.

AudioEye may terminate these Terms or any Order at any time, in our sole discretion, upon any actual, threatened or suspected breach of these Terms or any Order. In such event, no notice shall be required by us to effectuate such termination.

AudioEye may also terminate any Order (or portion thereof) if access to an Offering under that Order is discontinued by AudioEye, either in general or through the Platform through which you placed your Order for such Offering. In the alternative, AudioEye may replace such Offering with any similar or comparable Offering then offered by AudioEye at the then-existing rate for such Offering. If AudioEye continues to provide you with access to any discontinued Offering, AudioEye may charge you additional fees associated with the continued provision of such discontinued Offering.

We also reserve the right to suspend or limit your access to the Platform or any Offering(s) for any reason or no reason in our sole discretion. During any such suspension, you may not access or use the Platform or any such Offering(s) or any related Content.

Upon any termination of an individual Order: (1) all rights to any Offerings subject to that Order will terminate; (2) you will cease all use of and access to all Offerings subject to such Order; (3) you will cease use of and delete any Content relating to the Offerings subject to such Order; (4) all Fees or other amounts incurred under such Order will become payable; and (5) we may, in our sole discretion, delete any of Your Content relating to the Offerings subject to such Order.

Upon any termination of these Terms: (a) all rights granted to you under these Terms and each Order will terminate; (b) you will cease all use of and access to your Account, the Platform, and all Offerings; (c) you will cease use of and delete all Content; (d) all Fees or other amounts incurred through your Account or which you have otherwise incurred under these Terms and each Order will become payable; and (e) we may, in our sole discretion, delete your Account and any of Your Content.

Following any termination of these Terms, you will continue to be bound by the terms hereof which, by their nature, survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

Fees and Payment; Taxes

You will pay AudioEye all fees and other amounts (“Fees“) specified in each Order when due.

AudioEye may increase the Fees applicable to any Offering prior to any renewal term of the Order applicable to the Offering. Any such increase shall become applicable upon such renewal.

Fees for automatic upgrade are provided for in section titled “Term”.

All Fees are due and payable in advance of the period to which such Fees are applicable. Fees and Expenses are payable in the currency specified on each Order. You will pay all Fees without withholding or deduction. All Fees are non-refundable once paid (including upon any termination or suspension). You covenant and agree that all billing and payment information provided that You will be truthful and accurate. If You specify a credit or debit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You authorize AudioEye to charge the credit or debit card, or debit the bank account, provided to AudioEye for all Fees. Such Fees include Fees for successive terms, Fees relating to automatic upgrades occurring during the term or any successive term and increases in Fees relating to an Offering for successive terms. You covenant and agree to maintain the right to use such credit card, debit card, or bank account for payment of all Fees and to provide AudioEye with any updates thereto as needed to enable payment of all Fees hereunder. If any such credit card, debit card, or bank account charges are rejected, dishonored, or reversed, you agree to promptly pay the applicable charges upon demand by AudioEye. A late payment charge of the lesser of 1.5% per month or the highest lawful rate may be applied to any past-due balances until paid.

AudioEye will collect all excise, VAT, taxes or any other fees as required by local regulations (“Taxes“). AudioEye will also distribute those Taxes.

Violation of These Terms by Others

If you believe a user of the Platform has violated these Terms, please contact customer service at 866-331-5324.

Your Representations and Warranties

You represent, warrant, and Covenant to AudioEye that : (1) you have the legal right and authority to enter into these Terms; (2) these Terms form a binding legal obligation on you; and (3) you have the legal right and authority to perform your obligations under these Terms and to grant the rights and licenses described in these Terms.

You further represent, warrant, and Covenant to AudioEye that all of the pages and content on your Website have been tested with modern web browsers and with each of the Offering’s features and that your Website functions properly and as intended.

You acknowledge that your use of the Platform and Offerings in compliance with any specific Law applicable to you, or other data or information you may provide or generate through the Platform or Offerings, including Your Content, is your sole responsibility. AudioEye is not responsible for enabling your compliance with any such Law or for your failure to comply. Regardless of the jurisdiction in which you use or access the Platform or any Offering, you represent, warrant and covenant that your use of and access to the Platform and the Offerings and Content, including Your Content, will comply with all applicable Laws and will not cause AudioEye itself to violate any applicable Law. The foregoing obligation includes compliance with all Laws that are applicable to the accessibility and transmission of Content on and through internet websites and mobile applications.

Indemnification

You agree to indemnify, defend, and hold harmless AudioEye and each AudioEye Party (collectively, the “Indemnified Parties“), at your expense, from and against any and all claims, allegations, actions, proceedings, and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs, and expenses (including reasonable attorneys fees and other dispute resolution expenses) (“Claims“) incurred by any Indemnified Party arising out of or relating to your (1) violation or breach of any of these Terms or any policy or guidelines referenced herein, (2) use or misuse of the Platform or any Offering or Content, (3) your violation of any Law or any rights of others in connection with your use of the Platform and Offerings or Content, (4) your use or disclosure of another person’s personal, financial or credit information or (5) infringement, violation or misappropriation of any Intellectual Property or the violation of any property or privacy right arising from any of Your Content or Website(s).

Litigation

If You or any parent or affiliate receives any communication, or as a defendant are served with a complaint in any litigation (“Litigation“), alleging that the Website using the Offerings is not compliant with or in conformance with the Americans with Disabilities Act or any standard or level of Web Content Accessibility Guidelines (WCAG) (“Allegations“) or if You enter into any agreement relating to the settlement of a dispute regarding Allegations, You will promptly notify AudioEye as to the receipt of such communication, complaint, or settlement pursuant to the provisions of Section 21 and such notification shall be directed to https://www.audioeye.com/request-legal-support-services. Such notification shall be accompanied by a copy of the communication, complaint, or settlement agreement, as the case may be. In connection with any Litigation, You nor any parent or affiliate or employee or person may refer to AudioEye or the services performed by AudioEye, without the prior written consent of AudioEye, which shall not be unreasonably withheld.

Accessibility Claims

Certain Offerings may be eligible for the AudioEye Accessibility Warranty as specified a http://www.audioeye.com/accessibility-warranty (the “Warranty“). AudioEye reserves the right to revise (or revoke) the terms of the Warranty at any time. Any revisions are effective when posted by AudioEye as part of the Warranty.

Infringement of Your Copyrights

If you believe in good faith that your copyrighted work has been posted or made available on the Platform or through the Services without your authorization in a way that constitutes copyright infringement, please contact us at the address below so that we may investigate the situation and take any appropriate action. In order for us to investigate your claim of infringement, you must provide us with the following information:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
• A description of the copyrighted work that you believe has been infringed;
• A description of where the material that you claim is infringing is located or identified on the Platform;
• Your name, address, telephone number, and e-mail address;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or applicable Law; and
• A statement by you, made under penalty of perjury, that the information submitted to us is accurate and that you are the owner of the copyright or authorized to act on behalf of the owner of the copyright.

The above information should be provided to our designated agent for notice of claims of copyright infringement at the following address:

By mail: Attn: Intellectual Property Manager

5210 E. Williams Circle, Ste 750

Tucson, AZ 85711

Please note that the above procedure is exclusively for notifying AudioEye and its affiliates if you believe in good faith that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the Digital Millennium Copyright Act of 1998.

Allegations that other Intellectual Property Rights may be infringed on the Platform or through the Services should be sent to [email protected]. AudioEye may, in its sole discretion, terminate the Accounts of those who are accused of infringing copyrights or other Intellectual Property.

Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH MANDATORY ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION OR REPRESENTATIVE PROCEEDING.

Arbitration Terms. You agree that any dispute or claim arising out of or in any way relating to these Terms or the Platform or any Offerings (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration as specified in this Section.

Arbitration Procedures. Before commencing arbitration, you must first present any claim or dispute to us in writing to allow us the opportunity to resolve the dispute. If the claim or dispute is not resolved within 60 days, you may request arbitration by serving a completed Commercial Demand for Arbitration Form on us and the American Arbitration Association (“AAA“). You can contact the AAA at 800-778-7879 or www.adr.org. The arbitration shall be conducted by the AAA in accordance with its Commercial Arbitration Rules, and, when deemed appropriate by the arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes, except as expressly set forth in these Terms. There shall be one arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes. The arbitrator shall be chosen by written mutual agreement of the parties. If, after 7 days, you and we are unable to agree upon an arbitrator, the AAA will appoint the arbitrator. The arbitrator shall apply the substantive law of the state of Arizona, without giving effect to its conflict of law provisions. All face-to-face proceedings shall take place in an agreed-upon location in Phoenix, Arizona.

Award – Arbitration is final and binding. In making any award, the arbitrator will be restricted by the “Limitation of Liability” provision in these Terms and will not have jurisdiction to make an award to any party to the arbitration contrary to the “Limitation of Liability” provision. You expressly agree that the rulings of the arbitrator, including any award, shall be binding, non-reviewable and non-appealable.

Confidentiality – Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief.

Costs of Arbitration – The party requesting arbitration must pay the applicable AAA filing fee. Each party shall pay its own expenses of the arbitration, including the expense of its own counsel, witnesses, and presentation of evidence at the arbitration. If any party files a judicial or administrative action asserting a claim that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing that action must pay the other party’s costs and expenses incurred in seeking such stay or compelling arbitration, including reasonable attorneys fees.

Waiver of Jury and Class Action and Other Representative Proceeding.

THE PARTIES EXPRESSLY AGREE THAT THERE SHALL BE NO JURY TRIAL OR RIGHT TO A JURY TRIAL, OR RIGHT TO ANY OTHER PROCEEDING TO RESOLVE ANY DISPUTE IN ANY COURT. THE PARTIES ALSO EXPRESSLY AGREE THAT ANY DISPUTE IS PERSONAL TO THEM, AND ANY SUCH DISPUTE SHALL ONLY BE RESOLVED BY AN INDIVIDUAL ARBITRATION. NEITHER PARTY AGREES TO CLASS ARBITRATION OR ARBITRATION WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF ANY OTHER PERSON OR PERSONS. NEITHER PARTY AGREES THAT A DISPUTE CAN BE BROUGHT AS A CLASS OR REPRESENTATIVE ACTION OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER PERSON OR PERSONS. THE PARTIES AGREE THAT A DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL ARBITRATION AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.

Governing Law and Venue

The interpretation of the rights and obligations of the parties under these Terms, and any dispute of any nature that might arise between you and AudioEye, will be governed by the Laws of the State of Arizona, USA, as such laws apply to contracts between Arizona residents performed entirely within Arizona, without regard to its conflict of laws principles.

Subject to the Dispute Resolution Section above, each party will bring any action or proceeding arising from or relating to these Terms exclusively in a federal or state court located in Phoenix, Arizona. You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by AudioEye. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, and the parties hereby disclaim the application thereof.

Notices

All notices you provide to AudioEye under these Terms shall be in writing, in English. When you send a notice to AudioEye, such notice shall be deemed properly given when addressed to AudioEye’s address as stated on its website and (1) delivered by personal delivery, (2) delivered by overnight courier service with signature required, or (3) mailed by first class U.S. mail with postage paid, return receipt requested. In addition, you may provide us with notice of termination or non-renewal of these Terms or any Order by contacting our customer service at 866-331-5324.

You agree that we may send you any notice, communication, or other information in connection with the Platform or any Offering in electronic form to any e-mail address we have on file for you or, if the notice, communication, or other information applies to multiple Users, by posting such notice to the Platform or providing it through the Offerings. Notices, communications, or other information provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. Notices, communications, or other information given through the Platform or Offerings will be deemed given and received on the day you access the Platform or Offering containing such notice.

You agree to promptly notify us of any changes in your address or contact details. If AudioEye sends you any notice, communication, or other information but you do not receive it because the email address in our files file is incorrect, out-of-date, blocked by your service provider, or you are otherwise unable to receive the notice, communication, or other information, AudioEye will be deemed to have provided the notice, communication, or other information to you.

Force Majeure

AudioEye will not be liable for delays, failure in performance or interruption of the Platform or any Offering which result directly or indirectly from any cause or condition beyond AudioEye’s reasonable control, including any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.

Publicity Rights

You grant AudioEye the right to use your name, logo, and a description of your use case to refer to you on AudioEye’s website, earnings release and calls, marketing or promotional materials, subject to your standard trademark usage guidelines that you provide to us from time-to-time.

Additional Terms

The failure of AudioEye to enforce any right or provision in these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of AudioEye. Except as expressly set forth in these Terms, the exercise by either party of any of its rights or remedies under these Terms will be without prejudice to its other rights or remedies under these Terms or otherwise. If for any reason a court or arbitral tribunal, as applicable, of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect and enforceable. Neither these Terms nor any of your rights or obligations under these Terms may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of AudioEye. Any assignment in violation of the foregoing will be null and void. AudioEye shall have the right to assign its rights or delegate any of its responsibilities under these Terms for any reason. AudioEye will use commercially reasonable efforts to provide you with notice of any such assignment or transfer. AudioEye may use third party providers to provide any portion of the Platform or any Offering. Except as expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. AudioEye may use third party providers to provide any portion of the Platform or any Offering. The AudioEye Parties shall be deemed third party beneficiaries to these Terms. The parties hereto are independent parties, not agents, employees or employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. To the extent any ambiguity or inconsistency exists between an English version of any written document and a version in any other language, the English (as interpreted in the United States) version of such document shall prevail. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”

Supplemental Information

If you have any questions or concerns about these Terms or any issues raised in these Terms or on the Platform, your Account, or any Offering please contact our customer service.

These Terms of Service (“Terms”) were last updated on December 31, 2020.