Decisive Design LLC dba Decisive Sites
Terms and Conditions
License and Services Agreement
1. THIS DOCUMENT HAS REALLY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. NOTE, THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT AT LEAST 18 YEARS OF AGE, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (these “Terms“) apply to the purchase of products and services (collectively “Services”) through https://decisivesites.com (the “Site“) and subject to change by Decisive Design LLC dba Decisive Sites (referred to as “Decisive Sites”, “us“, “we“, or “our” as the context requires) without prior written notice and in our sole discretion. You should review these Terms prior to licensing or purchasing any product or services available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
2. Order Acceptance and Cancellation.
The purchase of any products or services on the Site will be under these Terms. All orders must be accepted by us before we are obligated to sell the products or services to you. We reserve the right not to accept orders, and will make this decision in our sole discretion.
After we receive your order request and any initial payment, we will send you a confirmation e-mail with details of the items you’ve purchased. Until you have received an order confirmation e-mail, there’s been no acknowledgement of your order request, or formation of a contract between us and yourselves under this Agreement. If you don’t receive a confirmation within 24 hours, contact us at email@example.com. If for any reason your order request cannot be fulfilled, we will notify you and refund the initial payment made with the order request. Subject to Section 7 you may cancel website orders at any time before we launch your website by emailing us at firstname.lastname@example.org. Marketing packages and retainers may include additional cancellation terms.
3. Website Design & Hosting Services
As part of our Services, we will design, develop and deliver a website (a “Client Site”) hosted on our servers for your use (“Hosting Services”). In addition to these Terms, your use of a Client Site will be subject to the Website Design Terms in Schedule A and your use of Hosting Services will be subject to the Hosting Services Terms in the Schedule B. To the extent there is a conflict between the body of this Agreement and the applicable addendum, the addendum shall supersede to the extent of the applicable service.
4. Prices, Payment Terms and Billing
(a) All prices posted on the Site are subject to change without notice. The price charged for Services will be the price in effect at the time the order is placed and included in your order confirmation e-mail. Unless otherwise stated in these Terms, all payment obligations are non-cancelable and all amounts paid are nonrefundable. Price increases will only apply to orders placed after changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized on your checkout page and in your order confirmation e-mail. We do our best to ensure accuracy, but in the event there is a pricing, typographical or other error in any offer by us we will not be responsible and reserve the right to cancel any orders arising from these errors. You are responsible for paying for all Services ordered, whether or not such licenses are actively used and must provide us with a valid credit card or payment system as a condition to signing up for a Product or Service. Unless otherwise agreed by us in writing, payment must be received by us before our acceptance of your order. We accept credit cards for all purchases.
(b) Unless otherwise stated in your email confirmation, we will charge in advance for your use of Services. Thereafter, the credit card (or payment system) on file will be automatically drafted based on the payment plan chosen or presented for each Product or Service (one-time, monthly, annually), until the Services are terminated in accordance with these Terms. You agree to provide us with complete and accurate billing and contact information. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, we reserve the right to terminate your access to our Services in addition to any other legal remedies. If you believe your bill is incorrect, contact us in writing within 90 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
(c) We reserve the right to suspend or terminate these Terms and your access to our Services if your account becomes delinquent. Delinquent invoices and accounts are subject to interest of 1 percent per month on any outstanding balance, or the maximum permitted by law, whichever is more, plus all expenses of collection. You will continue to be charged for Services during any period of suspension. If you or Decisive Sites initiates termination of these Terms, you must pay the balance due on your account and agree we may bill you for such unpaid fees. We reserve the right to impose a reconnection fee in the event your access is suspended and thereafter request access to Services. You agree and acknowledge that we have no obligation to retain your Data and that such Data may be irretrievably deleted if your account is 30 days or more past due.
5. Your Responsibilities
You are responsible for all activity occurring under your user accounts and must abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with your use of our Services, including those related to data privacy, international communications, and the transmission of technical or personal data. You must: (i) notify Decisive Sites immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report the event to Decisive Sites immediately and use reasonable efforts to mitigate damage; and (iii) not provide false identity information to gain access to or use Services. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all your data, information, or material provided or submitted by you to the Service in the course of using the Service (“Data”), and Decisive Sites is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of your Data.
6. LIMITED WARRANTY
THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS UNDER YOUR STATE’S LAW, WHICH VARIES FROM STATE TO STATE. THE LIMITATION BELOW WILL APPLY TO THE EXTENT PERMITTED BY LAW.
WE WARRANT, DURING THE WARRANTY PERIOD, THAT THE SERVICES PURCHASED FROM THE SITE WILL BE PERFORMED IN A PROFESSIONAL MANNER AND IN ACCORDANCE WITH GENERALLY RECOGNIZED INDUSTRY STANDARDS FOR SIMILAR SERVICES. PRODUCTS WILL CONFORM TO THE SPECIFICATIONS OUTLINED ON THE SITE AT THE TIME OF PURCHASE. WITH RESPECT TO DEFECTIVE PRODUCTS OR SERVICES REPORTED DURING THE WARRANTY PERIOD, WE WILL, IN OUR SOLE DISCRETION EITHER: (I) REPAIR OR RE-PERFORM THE DEFECTIVE SERVICES FREE OF CHARGE OR (II) REFUND THE PURCHASE PRICE OF SUCH PRODUCT OR SERVICES. TO REDEEM YOUR WARRANTY, YOU MUST E-MAIL US AT ADMIN@DECISIVESITES.COM OR WRITE US AT 2000 N Central EXPY, STE 214, PLANO, TX 75074 DURING THE WARRANTY PERIOD. WE ALSO DISCLAIM CERTAIN WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, INTELLECTUAL PROPERTY INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
(a) Who May Use This Warranty, What Does This Warranty Cover & What is the Coverage Period?
This limited warranty extends only to the original purchaser of products and services from the Site. It does not extend to any subsequent or other owner or transferee of the product or any transferee or other beneficiary of the service. This limited warranty covers during the Warranty Period (defined below) defects in workmanship in products and services purchased from the Site. This limited warranty starts on the date of your purchase and lasts until a website is publically published under your domain name the “Warranty Period“. The Warranty Period is not extended if we replace a warranted product or re-perform a warranted service. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.
(b) What Does This Warranty Not Cover?
This limited warranty does not cover any defects due to: (i) improper use; (ii) failure to follow the product instructions or supply proper and complete content; (iii) modifications; (iv) combination or use with any products, materials, processes, systems or other matter not provided or authorized in writing by us.
(c) Limitation of Liability for Warranties & Disclaimer of Warranties
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT OR SERVICE THAT YOU HAVE PURCHASED THROUGH THE SITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
DISCLAIMER OF WARRANTIES: DECISIVE SITES AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE. DECISIVE SITES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY DECISIVE SITES AND ITS LICENSORS. NO PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR VENDORS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.
7. Returns and Refunds
It’s our priority that you be happy with your purchase. Full refunds will be available for orders to design a Client Site, provided you send a written cancellation request to email@example.com before the Client Site is published to its domain site. All other Products or Services available on the website are non-refundable. You may cancel these, and will only be responsible for amounts due up until the day you cancel. However, any amounts previously paid will be non-refundable, and amounts due for products or services ordered up until the cancellation request will become immediately payable. Refunds are processed within approximately 14 business days of our receipt of your written request. Your refund will be credited back to the same payment method used to make the original purchase on the Site.
8. Goods Not for Resale or Export
We may provide services, software and/or technology that ARE subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, other U.S. agencies or the export control regulations of Switzerland and the European Union. By using our Services, you represent and warrant you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National (defined below). You acknowledge and agree that our software and Services will not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries on which the United States, Switzerland, and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). You agree to comply with all applicable laws and regulations of the various states, countries and of the United States, and assume sole responsibility for obtaining licenses to export or re-export as may be required. You represent and warrant that you are not buying products or services from the Site for resale or export.
(a) Each party must protect information not generally known to the public that relates to the disclosing party’s business (including, without limitation, computer programs, source code, object code, technical drawings, processes, ideas, inventions (whether patentable or not), business, financial, customer and product development plans, forecasts, strategies and information) (individually or collectively “Confidential Information”) of the other party against disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
(b) The obligations set out in this clause will not apply to Confidential Information which the receiving party can demonstrate: (a) is or has become publicly known other than through breach of this clause 9; or (b) was in possession of the receiving party prior to disclosure by the other party; or (c) was received by the receiving party from an independent third party who has full right of disclosure; or (d) was independently developed by the receiving party; or (e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
10. Intellectual Property Use and Ownership
You acknowledge and agree that:
(a) All uses of the terms “sell,” “sale,” “resell,” “resale,” “purchase,” “price” and the like herein or on the Site mean the purchase or sale of a license. Each product and service marketed on this Site is made available solely for license, not sale, to you and other prospective customers under the terms, conditions and restrictions of these Terms, or the license agreement posted or made available to you through a link accompanying the display or description of that specific product or service. We hereby grant you a nonexclusive, nontransferable, worldwide right to use our Services, subject to your compliance with the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by us and our licensors. Decisive Sites will also own all suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you or any other party relating to our Services.
(b) Restrictions. You may not (i) modify or make derivative works based upon the services or products on the Site; (iii) reverse engineer or access a product or service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of our Services, or (c) copy any ideas, features, functions or graphics of a product or service, (d), send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights; (e) send or store material containing software viruses, worms, trojan horses, or other harmful computer code, files, scripts, agents, or programs; (f) interfere with or disrupt the integrity or performance of our Services or the data contained therein; or (g) attempt to gain unauthorized access to our services or related systems or networks. A Service may offer integration capabilities via an application programming interface (API). The number of API calls you can make per account may be limited on a Service by Service basis in order to protect our systems and other users. If we believe that you or your account is misusing or exceeding reasonable limitations, we may investigate further and contact/restrict your account accordingly.”
(c) Decisive Sites and its licensor(s) are and will remain the sole and exclusive owner(s) of all rights in and to each product and service made available on the Site and any related specifications, instructions, documentation or other materials. This includes, but is not limited to, all related copyrights, patents, and trademarks and other intellectual property rights, subject only to the limited license granted herein or under the product’s or service’s license agreement. You do not and will not have or acquire any ownership of the products or services made available through this Site, or of any intellectual property rights relating to those products or services.
11. Mutual Indemnities
You will indemnify and hold Decisive Sites, its licensors and each of its and their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents (“Decisive Sites Group”) harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) (“Claims”) arising out of or in connection with: (i) a claim alleging that use of your Data infringes the rights of, or has caused harm to, a third party; (ii) a claim arising from the breach by you or a member of Customer Group of these Terms, provided in any such case that Decisive Sites (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Decisive Sites of all liability and such settlement does not affect Decisive Sites’ business or services); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Decisive Sites shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents (“Customer Group”) harmless from and against any and all Claims arising out of or in connection with: (i) a claim alleging that a Product or Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim arising from breach of this Agreement by Decisive Site; provided that you (a) promptly gives written notice of the claim to us; (b) gives us sole control of the defense and settlement of the claim (provided that we may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provides to us all available information and assistance; and (d) has not compromised or settled such claim. We will have no indemnification obligation, and you must indemnify Decisive Sites Group pursuant to this Agreement, for claims arising from any infringement arising from the combination of a Product or Service with any of your products, service, hardware or business process(s).
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL DECISIVE SITES’ AGGREGATE LIABILITY FOR YOUR USE OF SERVICES EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL DECISIVE SITES AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH A PRODUCT OR SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF DECISIVE SITES OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Force Majeure
We will not be liable, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting telecommunication breakdown or power outage.
14. Governing Law and Jurisdiction
All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
15. Dispute Resolution and Binding Arbitration
(a) YOU AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified by this Section 15. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
(c) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR DECISIVE SITES WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
(a) These Terms will commence once your website order is accepted and terminate: (i) once you submit a written termination request, or (ii) once we send you a written notice of termination.
(b) Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice if: (i) the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; (ii) the other party commits a material breach of any term of these Terms and fails to remedy that breach within a period of 10 days after being notified in writing to do so. Upon termination of these Terms, all its provisions will cease to have effect, except Sections 4, 5, 6, 9, 10, 11, 12, 14, 15, 16 and 21.
(c) Provided you’re not in breach of this Agreement, and have paid for at least 24 contiguous months of services, Decisive Sites will make available to you a file of your Data within 30 days of termination if you request at the time of termination. Those files may contain third party plug-ins or applications used in the backend of the Client Site. CLIENT UNDERSTANDS THAT ONCE THIS AGREEMENT IS TERMINATED, WE WILL NO LONGER SUPPORT THE CLIENT SITE OR ANY APPLICABLE PLUG-IN’S AND APPLICATIONS. ALL FILES ARE GIVEN AS-IS, AND USED BY YOU AT YOUR OWN RISK. Decisive Sites reserves the right to withhold, remove, and/or discard your Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, all licences granted under these Terms shall terminate immediately as well as your right to access or use Data immediately ceases, and Decisive Sites shall have no obligation to maintain or forward any Data
You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any actual or purported assignment or delegation in violation of this Section 18 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms. However, we may assign these Terms without your consent to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.
18. Excess Data Storage Fees
The maximum disk storage space provided to you at no additional charge is 100 MB per user license for the Business Starter plan, and 1 GB for the Grow and Market plan. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. Decisive Sites will use reasonable efforts to notify you when the average storage used reaches 90 percent of the maximum; however, any failure by us to notify you will not affect your responsibility for the additional storage charges. We reserve the right to establish or modify its general practices and limits relating to storage of your Data.
19. No Waivers
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Decisive Sites.
20. No Third Party Beneficiaries
Except as expressly provided in Section 11 a person who is not a party to these Terms will not have any rights to enforce any provision of these Terms. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under these Terms are not subject to the consent of any other person.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current. (b) To Us. To give us notice under these Terms, you must contact us by personal delivery, overnight courier or registered or certified mail to Decisive Sites at 2000 N Central Expy, Ste 214, Plano, TX 75074. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
23. Entire Agreement
Schedule A: Website Design Terms
Review these terms if we’ll be designing a website for you.
“Website design services” or “Design Services” will include and mean: (i) the design, development and delivery of a website in accordance with a timetable within which we will implement (a “Project Plan”); (ii) hosting of the website from a computer server administered by us (a “Server”); and (iii) Security, back-up and disaster recovery, website software updating, and visitor data collection. Any terms capitalized and not defined here will have the same meaning as they do in the License and Service Agreement (the “Agreement”).
- Your Responsibilities
a. You acknowledge our ability to provide the Design Services is dependent upon your full and timely cooperation (which you agree to provide), as well as the accuracy and completeness of any information and data you provide us. Accordingly, you must:
i. provide us with access to, and use of, all information, data and documentation (the “Materials”) reasonably required for our performance under these Terms; and
ii. You will be responsible for the accuracy and completeness of the Materials on the Site in accordance with Section 7 below.
- Accepting the Site
a. Once we complete the design and development of a Client Site, you may make one request for revisions in the event the Client Site doesn’t match the specifications outlined in your intake form. However, the revisions must fall within the specifications originally requested, and may not exceed 2 billable hours of work. Any requests outside of these will be charged at our published hourly rate.
b. A Client Site will be deemed accepted by you if you allow/request Decisive Sites to publish the Client Site.
c. In the event discrepancies aren’t resolved after the first revision, we reserve the right to end the project and refund your money paid for the services as outlined in the “Refund” section above.
- Third Party Products
You must use third party products supplied with Design Services in accordance with the relevant licensor’s terms. The oneoff license fee for such Third Party Products is included in the Charges payable pursuant to the payment provisions herein.
- Site Content
a. We will update the Client Site with Materials provided by you. You must ensure the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
b. You acknowledge we have no control over any content placed on a Client Site by visitors and we do not monitor the content of a Client Site. However, we reserve the right to remove content from a Client Site where we reasonably suspect such content is Inappropriate Content. We will notify you promptly if we become aware of any allegation that any content may be Inappropriate Content. Without prejudice to any indemnities in the Agreement, You, your officers, employees, agents, permitted assigns and permitted successors will indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
c. We reserve the right to include the statement “Created by Decisive Sites” as a no-follow link in the footer of the Client Site.
- How to Request Changes to a Client Site
a. Once a month, you may request minor cosmetic changes be made to your site, such as a minor change to the layout or a content swap. The decision as to whether a request is “minor” or “cosmetic” will be made by Decisive Sites in its sole discretion, and considered final. As a general rule of thumb, changes requiring more than one (1) billable hour will not be considered minor cosmetic changes. Any changes outside of those that are minor and cosmetic will be billed at our current hourly rate. Users who have purchased an “Advanced Plan” will also have the option of making their own changes. Decisive Sites reserves the right to decline a request where it believes the request violates law, will expose Decisive Sites to liability or harm other users. Changes may only be requested by users who are current on payment.
Schedule B: Hosting Services Terms
Review these terms if we’ll be hosting a website for you.
We will provide you with the Website Hosting Services (“Hosting Services”) in accordance with the License and Service Agreement (“Agreement”) and these Hosting Services Terms (“Terms”). The initial term (“Service Period”) and fees for the Hosting Services are described in the Email Confirmation. Details of the Services are set forth in the applicable Service Descriptions on our website.
- Your Responsibility
In addition to the responsibilities listed in the Agreement, you are also responsible for the way in which you use the Hosting Services, including the policies and procedures you put in place to protect the security of your data, computer network; your choice of equipment, software and online content; and all other matters related to how you use the Hosting Services. You agree to provide us with the access and support required to allow us to implement, maintain and provide the Hosting Services. You understand you may not resell Hosting Services, or access to Hosting Services, directly or indirectly to third parties, except as authorized us in writing.
- Compliance with Laws
In addition to compliance requirement in the Agreement, you will not use or permit the Services to be used in ways that infringe the rights of others, or interfere with other users of our network or other networks. For example, you will not distribute chain letter or unsolicited bulk electronic mail (“spamming”); propagate computer worms or viruses; use a false identity; attempt to gain unauthorized entry to any site or network; distribute child pornography, obscenity or defamatory material over the Internet; or infringe copyrights, trademarks or other intellectual property rights. We reserve the right to suspend the Hosting Services (or any portion thereof) without notice in the event we believe your use (or any of your end user’s use) of the Hosting Services is in violation of this section. We reserve the right to terminate the Hosting Services in the event of chronic or uncured violations of this Section.
Notwithstanding anything to the contrary in the Agreement, with respect to the Hosting Services we will indemnify you for damages, costs and attorneys fees you incur from any claim that the Hosting Services as provided to you by us infringe any U.S. patent, copyright, trademark, trade secret or other intellectual property right existing as of the date of these Terms under U.S. law. You will indemnify us for damages, costs and attorneys fees we incur from any claim arising from use of the Hosting Services, your combination of the Hosting Services with other products or services not provided by us, or your modification of the Hosting Services. The indemnifying party will conduct the defense and have control of the litigation; the other party must give prompt notice of claims and must cooperate in defending against the claim. THE PARTIES DISCLAIM THE IMPLIED WARRANTY OF NON-INFRINGEMENT, RELYING INSTEAD ON THE TERMS OF THIS SECTION.
- IP Addresses and Domain Name Fees
Upon expiration, cancellation or termination of the applicable Hosting Services, you must relinquish any IP addresses or address blocks assigned to you by us. If we deem it necessary for technical reasons, you may be required to renumber the IP addresses assigned to you by us. All fees associated with domain name registration and periodic maintenance of domain names are your responsibility and will be billed directly to you.
- Update of Services
We reserve the right to make changes to service components if components are no longer supported by us. In the event such a change adversely impacts your use of the Hosting Services, and we cannot reasonably mitigate the impact, you may terminate the Services without further obligation.
- Limitation of Damages
OUR AGGREGATE LIABILITY TO YOU RELATING TO OR ARISING OUT OF YOUR USE OF HOSTING SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY YOU TO US FOR THE HOSTING SERVICE IN QUESTION DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO YOUR CLAIM.
II. HOSTING SERVICES The following additional terms apply to any Service that includes hosting:
By providing you with Hosting Services, we do not acquire any right, title and/or interest in the content material (including but not limited to text, software, scripts, multimedia images, graphics, audio, video, and other data) that you install or have installed on the server computer (collectively “Content”).
- Software Options
If you purchase an option in which you are responsible for acquiring a license, and we agree to install the third-party software for you, you are solely responsibility for obtaining a valid license from the software vendor. If we purchase any third-party software on your behalf, you agree to sign any required third-party license agreements prior to delivery or installation of the third-party software. If we install third-party software at your request and acceptance of license terms is effected electronically, you authorize us to accept the third-party license terms on your behalf.
- Network Access Availability
ACCESS TO THE NETWORK CANNOT BE GUARANTEED TO YOU OR YOUR END USERS. END USERS MAY BE UNABLE TO ACCESS THE SERVICE AT ANY GIVEN TIME, AND DISCONNECTIONS MAY OCCUR FROM TIME TO TIME. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES THAT YOU OR YOUR END USERS MAY INCUR ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE. You acknowledge that we have no control over or liability for the actions of local jurisdictions, which may restrict or block the Hosting Service.
- Responsibility for End Users
You agree to be responsible for all communications to and business relations with end users. Unless you have purchased optional help desk services from us, you shall be responsible for providing all technical support related to access for end users, including but not limited to responding to inquiries and questions, hot-line support, problem resolution, providing system configuration, installation and support, as applicable, and other such services and shall maintain an organization which is highly trained and qualified to provide such support. You are responsible for authenticating and authorizing access by your end users to Hosting Services.
EFFECTIVE DATE: 12/1/2017 – PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.