Terms of Agreement
(Application Service Provider, Hosting, Web Services & Online Marketing)
1. APPLICATION HOSTED SERVICES
The Dotfront's application hosted services include a wide variety of resources including web sites, web pages, email, domain address, online marketing and other services operated by Dotfront and its affiliates and various other products and services which are provided directly by Dotfront, its affiliates or third party service providers. These products and services will be collectively referred to in these Terms of Services Agreement as the "Services." You, the Customer must be at least eighteen (18) years of age to subscribe to and use any of the SERVICES.
Subject to these terms and conditions and in exchange for a periodic fee as specified, Dotfront will provide to Customer application hosting services for the application the customer shall contract (Application). All this services will be limited and in compliance with the following specifications:
During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive access to use the Dotfront Services and related documentation solely for Customer's business purposes consistent with the terms and conditions of this Agreement. Customer will have continuous access to Application via Internet connectivity to compatible Web browsers, subject to the disclaimer provisions stated in this Agreement.
Dotfront will issue, to whom Customer shall authorize, a user and password login as the Customer Dotfront system Administrator. Customer acknowledges and agrees that only this Administrator shall be authorized to bind Customer in connection with any service provided to Customer under this Agreement. The Administrator will be responsible of assigning logins and passwords to each remaining Authorized User, and manage the business rules that control each such Authorized User's access to the Application.
The Application will be served from Dotfront's servers co-located at a secure Internet Service Provider (ISP) facility. As part of the service package, Dotfront will provide required initial account setup and administration, and will provide free technical support for the term of this agreement.
Dotfront shall use all commercial efforts to ensure the access to the services is available at all times. Since both parties recognize that the Internet is not owned or controlled by anyone, there may be performance losses or downtimes. Therefore, Dotfront makes no guarantees that any user may access the services at any given time, specially if such access failures are due to: (1) factors outside of Dotfront's reasonable control; (2) any actions or inactions of Customer or any third parties not affiliated with Dotfront; (3) Customer's equipment and/or third party equipment; (4) third parties software related issues; or (5) scheduled halts for purposes of maintaining or updating the Web Site or the Software.
2. SERVICE FEES AND PAYMENTS AND LIMITATIONS
Customer will pay to Dotfront all fees (application, monthly, setup or other) due according to the prices and fee schedule applicable at the time. Customer recognizes and accepts that all sales made by Dotfront are final, and there are no partial or full refunds unless for what is explicitly stated in this agreement.
Dotfront may change its fee rates on sixty (60) days notice by postal mail, electronic mail, or by posting the same on Dotfront's own Web Site. Upon such notice, Customer shall have thirty (30) calendar days prior to the effective date of the fee variation to notify Dotfront by certified postal mail should it not agree to such rate increase and that Customer wishes to terminate this Agreement.
Dotfront will invoice and charge Customer with the agreed payment method at the beginning of the service period (month, semester or year). All payments are due within five (5) days after Dotfront submits its invoice. If a payment is returned or rejected by Dotfront's bank, or incurs in any additional, the Customer shall pay a service fee of $50 and reimburse all such fees and costs incurred by Dotfront, and Customer shall be immediately deemed to be in default of this Agreement.
If Customer fails to pay any fees in full by the tenth day after the invoice has been submitted, Dotfront will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; (b) suspend access to any or all Services provided by Dotfront; and/or terminate this Agreement. - Reactivation of a closed or suspended account will be assessed a $50 reactivation fee. Any such suspension or termination will not relieve Customer from paying any outstanding fees plus interest and late charges. Customer will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys' fees, court costs and collection agency fees.
All fees charged by Dotfront for the Application Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of such services. If Dotfront is required to pay directly any such taxes, duties, whether international, national, state or local imposed by reason of the performance by Dotfront under this Agreement, Customer will pay or reimburse Dotfront for all such payments, excluding, however, income taxes or gross receipts taxes which may be levied against Dotfront.
3. ACCEPTABLE USE
Dotfront provides Services to assist Customer with the operation of its business. These Services are limited to the customer and its employees that are authorized users. Customer may not sublicense or resell any of Dotfront's Services to any third parties without the prior written permission of Dotfront. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement. The following constitutes Acceptable Use of the Application Services provided by Dotfront.
Customer shall use its reasonable efforts to see that each of its Authorized Users will be responsible for the security and/or use of his or her user login, and they will not disclose their user ID and password to any person and shall not allow any other person or entity to use his or her logon identifier.
Customer should use the services consistent with the assigned business rules, and use the Dotfront's applications in accordance with the terms and conditions of this Agreement. Customer will be responsible for advising each Authorized User of his or her obligations under this Agreement and of the license and proprietary restrictions set forth in this Agreement.
Customer acknowledges that Dotfront reserves the right to deny, suspend, revoke or terminate access in whole or part to the Services provided under this Agreement if Dotfront believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the Dotfront Services inconsistent with the terms and conditions of this Agreement.
Dotfront reserves the right, but is not obligated, to monitor or to review materials posted to Web Sites operated as a part of Services provided to Customer and to monitor Customer's compliance with these Terms of Service Agreement. Dotfront reserves the right in its sole discretion to edit, refuse to post or remove any information or materials which violate these Terms of Service or the Additional Terms in whole or in part, without notice at any time.
Customer acknowledges and agrees that unless expressly stated elsewhere, Dotfront has no proprietary, financial, or other interest in Customer's Content, and, therefore, Dotfront does not edit, distribute, market, sublicense, publish, or otherwise provide Customer's Content to end users. Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants that it owns or has the right to use and offer the Content in the manner in which such Content is offered and will be offered by Customer during the term of this Agreement.
Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although Dotfront provides data backup services, Customer is advised that Dotfront in no way is responsible for any damages resulting from the loss of Customer's Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving its own Content.
4. PROHIBITED PRACTICES
Dotfront may, in its sole discretion at any time, without notice to Customer, and without liability to Customer, remove from public view, disconnect, or interrupt the Service provided if Dotfront deems in its sole discretion that the Customer's Content or any Content under the Customer responsibility to be offensive or illegal. Also it is considered sufficient cause for termination or interruption of the Service if Customer is believed to be incurring in one or more of the following prohibited practices:
TERM AND TERMINATION
The Term of the Dotfront Services Agreement shall begin on the Effective Date, and shall continue for an initial term or period of one month, six months or one year as specified in the order form filled by the customer and in the invoice Dotfront sends the Customer. After the initial term or period has expired this Agreement will be renewed automatically for another year, unless either Party gives the non-terminating Party Thirty (90) days notice of its election to terminate this Agreement.
Customer is responsible for all Dotfront Service charges up to and including the day client cancels such Services. To cancel a Dotfront Service the customer must send Dotfront a written notice at least 30 days prior to the desired date of cancellation. Dotfront may contact Customer to confirm such request and a cancellation number will be assign. This number will serve as proof that the site and service has been cancelled. For security purposes, e-mail notice will be disregarded. The customer is responsible for all outstanding charges up to the time the cancellation number is issued.
Cancellation of e-commerce software, logistics software or other software applications does not release client from any long term contracts that client might have signed with Dotfront. If client has pre-paid for six months or a year of service, cancellation does not result in a refund.
Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms.
Termination for Breach.- Each Party shall have the right to terminate this Agreement upon thirty (30) days prior written notice if the other Party is in material breach of any term of this Agreement, provided such breach is not cured by the breaching Party within thirty (30) calendar days following the Termination for Breach notification.
Material Breach by Service Provider. - In the event that Dotfront is in default of this Agreement, Customer may terminate this Agreement by giving Dotfront thirty (30) days prior written notice thereof; provided, however, that this Agreement shall not terminate at the end of said thirty (30) days notice period if Dotfront has cured the breach of which it has been notified prior to the expiration of the thirty (30) days. If Agreement is terminated by cause of material breach by Dotfront, any setup or customization fees paid in advance by the Customer are to be refunded with the amount prorated to the date of default.
Material Breach by Customer.- In the event Customer is in default of this Agreement Dotfront shall have the right to terminate this Agreement by giving Customer thirty (30) days prior written notice thereof; provided however, that this Agreement shall not terminate at the end the thirty (30) days notice period if Customer has cured the breach of which it has been notified prior to the expiration of said thirty (30) days.
In the event Customer is in default of the Customer Obligations or the Warranties by Customer, Dotfront may immediately terminate the Services under this Agreement and any one-time fees for setup or customization become non-refundable. Additionally, Dotfront shall have the right, upon written notice to Customer, to terminate this Agreement if Customer fails to timely pay Dotfront any amount due to Dotfront under this Agreement or Customer terminates or suspends its business activities; becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
Following Services activation, in the event of a termination by either party, Customer shall be obligated for any fees and charges incurred prior to termination. In the event of a termination during the Initial Term, Customer shall be obligated to pay in addition to the fees mentioned above an amount equal to the monthly recurring service charge multiplied by the number of months remaining on the Initial Term. Termination charges are billed in one lump sum and shall be payable immediately on termination.
Upon the expiration date and non-renewal notice from Customer to Dotfront or termination of this Agreement: (a) Dotfront will immediately cease providing to the Customer the Application hosting Service or any services provided under this Agreement; (b) any and all payment obligations of Customer made under this Agreement will become due immediately; (c) after such expiration or termination, if requested by the Customer, Dotfront will back up the Customer's database and ship it to the Customer's address of record via common parcel service; (d) Customer will return to Dotfront any and all equipment, software, documentation or other deliverables provided to Customer by Dotfront including any copies thereof held by Customer; (e) 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.
Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement.
Each party warrants and represents to the other party that it has the complete right to enter into and perform its responsibilities under this Agreement.
Customer Warranties.- By subscribing to any service offered by Dotfront, the Customer makes the following representations and warranties.
7. DISCLAIMER OF WARRANTIES
YOUR access to and use of the SERVICES, and products and services of SERVICES, is at YOUR own risk. NEITHER DOTFRONT NOR ITS RESPECTIVE SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE CONDITION, SUITABILITY, RELIABILITY, AVAILABILITY, COMPLETENESS, SECURITY, TIMELINESS, OR ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND MATERIALS CONTAINED IN SERVICES FOR ANY PURPOSE. DOTFRONT'S SERVICES ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE SET FORTH HEREIN, DOTFRONT MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF DOTFRONT APPLICATION SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
IN NO EVENT SHALL DOTFRONT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF DOTFRONT HAS BEEN ADVISED BY CLIENT OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IF DOTFRONT'S SERVICE TO CLIENT IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, DOTFRONT SHALL NOT BE RESPONSIBLE FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE, BEYOND THE FEES PAID BY CLIENT TO PROVIDER FOR SERVICES, DURING THE PERIOD OF DISRUPTION OR MALFUNCTION. DOTFRONT NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR DOTFRONT ANY OTHER LIABILITY IN CONNECTION WITH ANY SOFTWARE, APPLICATION OR HOSTING SERVICES PROVIDED UNDER THIS AGREEMENT.
8. LIMITATION OF LIABILITY
DOTFRONT ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER'S OR END USER'S USE OF APPLICATION SERVICES OR ANY SERVICE PROVIDED UNDER THIS AGREEMENT AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF DOTFRONT IS AWARE OF THE POSSIBILITY THEREOF. DOTFRONT'S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO DOTFRONT THROUGH THE DATE DOTFRONT'S LIABILITY TO CUSTOMER ACCRUES. IN NO EVENT SHALL DOTFRONT BE LIABLE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.
CUSTOMER RECOGNIZES AND ACCEPTS THAT the information, software, products, services and other material included in or available through the SERVICES PROVIDED BY DOTFRONT may not be complete, and may include inaccuracies or errors AND may also be modified, discontinued or deleted from time to time without notice; THEREFORE, DOTFRONT WILL NOT BE LIABLE UNDER ANY CIRCUNSTANCES FOR DAMAGES FOR LOSS OF USE, DATA, ACCOUNTS, REVENUES OR PROFITS, ARISING OUT OF THE OCURRENCE OF ANY OF THE FOREGOING CONDITIONS.
BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. IF CUSTOMER IS DISSATISFIED WITH ANY PORTION OF SERVICES PROVIDED BY DOTFRONT, OR WITH ANY OF THESE TERMS OF SERVICE, CUSTOMER SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING DOTFRONT SERVICES AND OTHER RELATED SERVICES AND PRODUCTS.
Dotfront is not involved in any transaction between Customer and Customer's buyer or seller or other third parties with whom Customer may have transactions through Customer's Web site or between Customer and any user of any products or services offered or provided by Customer or by a third party through the Dotfront Services. Dotfront is not acting as Customer's or any third party's agent in connection with the operation of the Dotfront Services. Customer is solely responsible for all tasks and duties related to processing its orders or other transactions included but not limited to verifying validity, keeping customers informed, providing customers support and assistance, delivering products to customers, billing customers, collecting payments and remitting to the appropriate authority all taxes (if any) arising from or related to such others or transactions. Consequently, Dotfront cannot and will not be involved in resolving any disputes relating to any completed or uncompleted transactions or the purchase or sale of listed goods or otherwise between Customer and Customer's buyers or suppliers or any other third party.
9. CUSTOMER'S INDEMNIFICATION
Customer agrees to indemnify, defend (at Dotfront's sole option and at Customer's sole expense) and hold harmless Dotfront, its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including without limitation claims made by third parties related to any false advertising claims, liability claims for products or services sold by Client, claims for patent, copyright or trademark infringement, and including reasonable attorneys fees, to the extent that such action is based upon a claim arising out of or relating to Customer's use of and/or access to the Dotfront Services or services provided under this agreement, including but not limited to any claims arising out of the sale or offer for sale of any illegal, infringing, counterfeit products or services or any other misuse of the Dotfront Services by Customer or its users. Customer specifically acknowledges that Dotfront shall not be liable to Customer for losses, if any, incurred as a result of fraudulent or unauthorized misuse of DotFront Services. These obligations will survive termination of Customer's relationship with Dotfront or Customer use of Dotfront Services.
No Assignment by Customer.- Customer may not assign this Agreement without the prior written consent of Dotfront, which Dotfront may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written permission shall be deemed null and void. Dotfront may assign this Agreement, which shall be effective upon written notice provided to Customer.
Use of Customer's Name and Trademarks.- Customer hereby grants Dotfront a non-exclusive right and license to use Customer's name and such of Customer's trade names, trademarks, and service marks as are listed on Customer's Content or otherwise provided to Dotfront in connection with this Agreement on Dotfront's own Web Sites, in printed and online advertising, publicity, directories, newsletters, and updates describing Dotfront's Services, and in applications reasonably necessary and ancillary to the foregoing. Customer may use Dotfront's trade name, trademarks, and service marks in advertising and publicity in conjunction with the offering of Customer's Content via Dotfront, provided that Customer shall submit copy to Dotfront for its prior written approval.
Audit Rights.- Dotfront shall have the right, during the term of this Agreement and for a period of six (6) months thereafter, upon reasonable notice and at reasonable times, to access Customer's location and files to inspect Customer's use of the Dotfront Application Services, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the Dotfront Services or this Agreement, Dotfront shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity.
Notices.- Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via telecopier or fax, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier, in each case addressed, in the case of Customer, to the address listed in Dotfront's records, or in the case of Dotfront, 2620 W 79th Street, Miami FL 33014.
Point of Contact.- Customer shall designate a single Point of Contact in the accompanying Order Form. Customer's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that Dotfront may rely on representations made by Customer's Point of Contact. Customer may change its Point of Contact at any time by giving written notice to Dotfront in accordance with the notice provisions of this Agreement.
Waiver.- Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of Dotfront and Customer or Customer's Point of Contact. Both parties expressly disclaim the right to claim the enforceability or effectiveness any amendments to this Agreement that are not executed by an authorized representative of Dotfront and Customer or any oral modifications to this Agreement. 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.
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 Dotfront in good faith deems the unenforceable provision to be essential to the Agreement, in which case Dotfront will have the right to terminate this Agreement in accordance what is stated in this Agreement.
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 FLORIDA, without regard to conflict of law principles. All disputes arising out of this Agreement shall be brought only in the district and federal courts located in of for the state of Florida. EACH PARTY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN OR FOR DADE COUNTY, FLORIDA.
Security.- Customer acknowledges accepts that the Internet is not a secure or completely reliable system, and Dotfront will take those precautions Dotfront deems reasonable in its sole discretion to secure Customer's Web Site from attack, but Dotfront makes no warranty that there will be no outages or interruptions of service, or that Customer's Content will be secure against attack of any form by end users or other third parties.
System And Network Security.- Violations of system or network security are prohibited, and may result in criminal and civil liability. Dotfront 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: