March 6, 2012
1.1. Accumulus hereby grants you a non-exclusive, non-transferable, worldwide right to use the Services, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Accumulus and its licensors.
1.2. You may not access the Services if you are a direct competitor of Accumulus, except with Accumulus' prior written consent. In addition, you may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
1.3. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way; (ii) modify or make derivative works based upon the Services; (iii) create Internet "links" to the Services or "frame" or "mirror" any content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services.
2. Customer Account
2.1. Password Confidentiality
When registering for a new Account with us, you enter a confidential password to your Account via a web interface. Other users under your Account also receive their own confidential passwords. All users shall maintain the security and confidentiality of their passwords and shall not share their password with others.
You agree to notify us immediately if you have reason to suspect unauthorized use of your Account.
2.2 Identity Authentication
You authorize Accumulus, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report and verifying your information against third party databases or through other sources.
2.3 Credit Report Authorization
When you open an account, you are providing Accumulus with your written instructions to obtain your personal and/or business credit report from a credit bureau. Accumulus may obtain your credit report when you open an Account, or any time thereafter if Accumulus reasonably believes there may be an increased level of risk associated with your Account. An increased level of risk includes, but is not limited to, a high number of chargebacks or reversals, or suspicious activity associated with your Account.
2.4 Your Privacy
2.5.1 Termination by Us
You agree and acknowledge that we may at our sole option cancel the Services and terminate this Agreement for any cause at any time and without notice. Any notice we choose to give may be provided in written, e-mail, or other electronic form. Notwithstanding the above, we may terminate this Agreement immediately for cause. You agree that for purposes of this Agreement the actions or failure to act of any User in your account will be attributed to you. Good cause shall include but not be limited to:
Your behavior towards our employees or other customers is offensive, abusive, violent, threatening or disruptive;
You fail to provide or we are unable to validate correct and accurate contact information that we require of all customers;
You fail to cooperate or provide information in connection with any investigation undertaken by a local, state, or federal authorities, or equivalent governmental agency;
We determine that the payment mechanism provided by you is likely being or will likely be used in a fraudulent manner; or
You violate any provision of this Agreement or any other terms and conditions posted by us, or breach any representations or warranties made hereunder.
2.5.2 Termination by You
You may close your Account at any time by emailing email@example.com.
Upon Account closure, we cancel any pending transactions. You remain liable for all obligations related to your Account even after the Account is closed.
2.6.1 Subscription Fees
Subscription fees are prepaid. When you terminate your account, unused prepaid subscription period fees are refunded, pro-rated on a daily basis.
2.6.2 Transaction Fees
Transaction fees are not prepaid and are, therefore, not refundable at account termination.
You may not transfer or assign any rights or obligations you have under this Agreement without Accumulus' prior written consent. Accumulus reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
4. Hold Harmless
You agree to protect, defend, indemnify and hold us harmless from and against any and all claims, causes of action, liabilities, judgments, penalties, losses, costs, damages and expenses (including attorneys' fees and all related costs and expenses of litigation at arbitration, or at trial or on appeal, if any, whether or not litigation or arbitration is instituted) suffered or incurred by us, including, without limitation, any claim for personal injury or property damage, arising from: (i) this Agreement; (ii) the Services provided to you by us; (iii) your use of the Services; and (iv) any violation by you of any federal, state or local laws, statutes, rules or regulations. For purposes of this Agreement, the indemnified parties shall include Accumulus Corporation and its owners, affiliates, subsidiaries, parents, shareholders, members, successors, assigns, representatives, franchisees, officers, directors, agents, attorneys and employees.
5. Disclaimer of Warranties and Limitation of Liability
YOU AGREE THAT THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES, WHETHER EXPRESSED OR IMPLIED. ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF FITNESS, MERCHANTABILITY, CORRECTNESS, COMPLETENESS, CURRENCY, OR OTHERWISE ARE DISCLAIMED. ALL SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT OR THE SERVICES ARE HEREBY EXCLUDED, TO THE FULL EXTENT PERMITTED BY LAW. WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT OR ANY OTHER CAUSE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ANY OF YOUR EXPECTATIONS OR REQUIREMENTS NOR THAT THE SERVICES ARE PROVIDED SECURELY OR WITHOUT ERRORS. THE SERVICES ARE PROVIDED ON AN "AS AVAILABLE" BASIS AND WE MAKE NO WARRANTIES THAT THE SERVICES WILL BE TIMELY, AVAILABLE AT ALL TIMES, OR FOR A PARTICULAR PERIOD OF TIME WITHOUT INTERRUPTIONS. CUSTOMER USE AND OPERATION OF THE SERVICES OR THE WEBSITE OWNED OR CONTROLLED BY US IS AT CUSTOMER'S SOLE DISCRETION AND RISK. WE WILL NOT BE RESPONSIBLE FOR ANY DAMAGE RESULTING TO CUSTOMER OR ITS COMPUTER SYSTEMS THAT RESULTS FROM THE USE OF THE WEBSITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
6. Service Revisions and Errata
Accumulus' Services could include technical, typographical, or photographic errors. Accumulus does not warrant that its Services are accurate, complete, or current. Accumulus may make changes its Services at any time without notice. Accumulus does not, however, make any commitment to update its Services.
7. Third Party Programs, Services or Web Sites
Accumulus is not responsible for the content of any third party web site containing links to Accumulus' Web Sites. A third party web site's inclusion of a link to an Accumulus Web Site does not imply endorsement by Accumulus of the third party web site. Further, Accumulus does not warrant or make any representations concerning the accuracy, likely results, or reliability of third party web sites linked to Accumulus' Web Sites. Use of any such third party web sites is at the user's own risk.
Accumulus is not responsible for the content of any third party program consuming Accumulus' Web Services. A third party program's use of Accumulus Web Services does not imply endorsement by Accumulus of the third party program. Further, Accumulus does not warrant or make any representations concerning the accuracy, likely results, or reliability of third party programs consuming Accumulus' Web Services. Use of any such third party programs is at the user's own risk.
8. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Accumulus represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with the online Accumulus documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Services and that your billing information is correct, and that you are not accessing and have not accessed the Services to commit illegal acts or violate Sections 1.2 and 1.3 of this agreement. You acknowledge that your breach of these representations and warranties shall entitle us to injunctive relief (monetary damages not being sufficient remedy), as well as available monetary damages and our attorneys' fees and costs.
10. Governing Law
Any claim relating to Accumulus Corporation's web site shall be governed by the laws of the State of Oregon without regard to its conflict of law provisions.
In the event that any provision or modification of this Agreement shall be deemed to be illegal, invalid or otherwise unenforceable, such provision shall be considered deleted from this Agreement, but all other provisions of this Agreement and the remaining portion of any provision which is deemed to be illegal, invalid or unenforceable in part shall continue in full force and effect.
If any party to this Agreement fails to enforce any provision of this Agreement, or fails to exercise any right at any time, such failure shall not operate as a waiver thereof.
You may not assign this Agreement without our prior written approval. This Agreement may be assigned by us without your consent.
14. Entire Agreement
This Agreement and the pages referred to herein contain the entire agreement relative to the protection of information to be exchanged hereunder, and supersede all prior or contemporaneous oral or written understandings or agreements regarding this issue. This Agreement shall not be modified or amended, except as expressly provided herein or in a written instrument executed by the parties.