ACCEPTANCE OF TERMS
IMPORTANT — READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE FECTIV SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
DESCRIPTION OF SERVICE
The Service includes, and is limited to, a service, web site, or mobile application that allows You access to and use of a single Fectiv Account. “Fectiv” referred to herein means the Fectiv, an online collaboration tool that organizes web presence development projects. The Service may contain information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Service (collectively, “Content”). Subject to these Terms of Service, Fectiv grants to You and each user of the Service a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Service. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Service is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. For the purposes of these Terms of Service, “Content” also includes all User Content (as defined below).
A “Fectiv Account” or “Account” referred to herein means a service, web site, or mobile application, provided by Fectiv, where You may use Fectiv to create, update, share, and publish information, data, text, messages or other materials (“User Content”).
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Agreement. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You also understand and agree that the service may include certain communications from Fectiv, such as service announcements, administrative messages, etc., and that these communications are considered part of the Service and You will not be able to opt out of receiving them. You agree not to access the Service by any means other than through the interfaces that are provided by Fectiv for use in accessing the Service. Fectiv will provide the Service in accordance with this Agreement. Fectiv may at its sole discretion modify the features of the Service from time to time without prior notice.
In order to use the Service, You must have a valid Account. To acquire an Account for the Service, You must provide Fectiv with an electronic mail address and other information (“Registration Data”). You are responsible for maintaining the confidentiality of the access data for Your Account, and are fully responsible for all activities that occur under Your Account. You agree to (a) immediately notify Fectiv of any unauthorized use of Your Account or any other breach of security, and (b) ensure that You exit from Your Account at the end of each session. Fectiv cannot and will not be liable for any loss or damage arising from Your failure to comply with this section. In consideration of use of the Service, You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the Service’s registration form, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Fectiv assumes no duty to verify such information as further detailed in the CONTENT OF THE SERVICE section of these Terms of Service. If You provide any information that is untrue, inaccurate, not current or incomplete, or Fectiv has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Fectiv has the right to suspend or terminate Your Account and refuse any and all current or future use of the Service (or any portion thereof). By using the Service (and registering an Account on the Service), You represent and warrant that are at least 18 years of age. No one under the age of 18 may use the Service. Fectiv may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Service is revoked where these Terms of Service or use of the Service is prohibited or to the extent offering, sale or provision of the Service conflicts with any applicable law, rule or regulation.
ASSIGNING A DOMAIN TO THE SERVICE
Assigning a domain to the service does not guarantee registration. If a third party registers your domain Fectiv PTY LTD does not hold any responsibility to that domains current or future status.
Additional groupings of features may be added to the Service and made available to You as a paid upgrade (“Paid Plan”). If You choose to subscribe to a Paid Plan, You shall pay fees (described below) to Fectiv. Upon selection of a Paid Plan, You will provide Fectiv with the necessary billing information (“Billing Data”).
Credit cards are the only payment mechanism Fectiv will accept for payment of a monthly or yearly subscription fee (“Subscription Fee”) for a Paid Plan. All currency references are in U.S. dollars. Paid Plans can be paid as either a monthly Subscription Fee or a yearly Subscription Fee.
If you select a Paid Plan, You must provide current, complete and accurate Billing Data. You must promptly update all Billing Data to keep Your Account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date) and You must promptly notify Fectiv if Your Payment Method is changed (for example, for loss or theft) or if You become aware of a potential breach of security, such as the unauthorized disclosure or use of Your name or password. If You fail to provide any of the foregoing information, You agree that Fectiv may continue charging You for any use of the Paid Plan under your Billing Data unless You have terminated Your Paid Plan as set forth herein.
If You select the Monthly Fee, the credit card that You provide as part of the Billing Data will be automatically and immediately billed starting from the initial transaction date. You agree that Fectiv may charge to Your credit card all amounts due and owing for Your Account on that monthly basis or upon cancellation (see “Termination, Breach, Suspension and Cancellation” and “Refund”). If You select the Yearly Fee, the credit card that You provide as part of the Billing Data will be automatically and immediately billed on the day You sign up. You agree that Fectiv may charge to Your credit card all amounts due and owing for Your Account on that yearly basis unless you cancel the account (see the “Termination, Breach, Suspension and Cancellation” and “Refund” sections of these Terms of Service). Fectiv may change prices at any time without prior notice, but will endeavor to provide reasonable advance notice via the Fectiv website and/or electronic mail. You agree that in the event Fectiv is unable to collect the fees owed to Fectiv for Your Account through Your Subscription Fee, Fectiv may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Fectiv in connection with such collection activity, including collection fees, court costs and attorneys’ fees.
As long as Your Account remains active and in good standing, You will be charged the Subscription Fee even if You never use the service. You may, however, cancel Your Paid Plan at any time.
TERMINATION, BREACH, SUSPENSION AND CANCELLATION
If Your Subscription Fee payment is overdue, Fectiv will disable Your access to the features provided by the Paid Plan. Fectiv may, at its sole discretion, at any time and for any reason, terminate the Service, terminate this Agreement, or suspend or terminate Your Account. In the event of suspension or termination, Your account will be disabled and You may not be granted access to Your Account or any files or other Content (including Your User Content) contained in Your Account, and Fectiv may delete Your User Content, although residual copies of information may remain in our system for some time for back-up purposes. In the event of termination, Fectiv may also withdraw and at its discretion reallocate the public web address of Your Account.
If You terminate Your Account, via means provided for cancellation on the Fectiv website, or via telephone call or electronic mail to Fectiv, and You request that Fectiv delete Your User Content and files contained in Your Account, Fectiv will make all reasonable efforts to do so.
Fectiv provides means and/or information for Account and Paid Plan cancellation on the Fectiv website.
PROPRIETARY/INTELLECTUAL PROPERTY RIGHTS
Fectiv and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Service and in all trade names, trademarks and service marks associated or displayed with the Service. You will not remove, deface or obscure any of Fectiv’s or its suppliers’ copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Service. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Service.
Fectiv is a Trademark of Fectiv, PTY LTD
You acknowledge that any use of the Service contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Service, may cause irreparable injury to Fectiv, its affiliates, suppliers and any other party authorized by Fectiv to resell, distribute, or promote the Service (“Resellers”), and under such circumstances Fectiv, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
Fectiv does not claim ownership over any User Content submitted on or through the Service. Your User Content belongs to You. However, by uploading any User Content to the Service, You agree that Fectiv may store and display (only to You, to the extent that You make such User Content private) Your User Content solely as necessary in connection with the Service. To the extent You choose to share any of Your User Content with other users of the Service, You agree to allow these users (i.e., only the users you specify) to view Your User Content and, to the extent applicable, collaborate with You and Your User Content.
You understand that all User Content is the sole responsibility of the person from which such User Content originated. This means that You, and not Fectiv, are entirely responsible for all User Content that You upload, post, transmit or otherwise make available via Your Account. Fectiv does not control the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such User Content.
You understand that by using the Service, You may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will Fectiv be liable in any way for any User Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that Fectiv does not pre-screen User Content, but that Fectiv and its designees shall have the right (but not the obligation) in their sole discretion to refuse, modify or move any Content that is available via the Service. Without limiting the foregoing, Fectiv and its designees shall have the right to remove any User Content that violates the Agreement or is otherwise objectionable. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not reasonably rely on any Content created by Fectiv or submitted to Fectiv. You acknowledge and agree that Fectiv may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
(a) comply with legal process;
(b) enforce the Agreement;
(c) respond to claims that any Content violates the rights of third-parties; or
(d) protect the rights, property, or personal safety of Fectiv, its users and the public.
If Fectiv discloses User Content to comply with legal process or respond to claims that any User Content violates the rights of third-parties, to the extent permitted by law, regulation or legal process, Fectiv agrees to provide You with prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
You understand that the technical processing and transmission of the Service, including Your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Should User Content be found or reported to be in violation with, but not limited to, the following terms, it will be in Fectiv’s sole discretion as to what action should be taken. You agree that You will not:
(a) upload, post, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a Fectiv official, forum leader, guide or host, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service;
(e) upload, post or otherwise transmit any User Content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, including but not limited to (a) sending mass email to recipients who haven’t requested email from You or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting Your site by posting multiple submissions in public forums that are identical;
(h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) “stalk” or otherwise harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices.
(m) offer for sale or sell any item, good or service that (i) violates any applicable federal, state, or local law or regulation, (ii) You do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (iii) Fectiv determines, in its sole discretion, is inappropriate for sale through the Service provided by Fectiv;
(n) use the Account website as a redirecting/forwarding service to another website;
(o) exceed the scope of the Service that You have signed up for; for example, accessing and using the tools that You do not have a right to use, or having humans share User logins, or deleting, adding to, or otherwise changing other people’s comments or User Content as an Account holder. If any user is reported to be in violation with the letter or spirit of these terms, Fectiv retains the right to terminate such account at any time without further warning.
GENERAL PRACTICES REGARDING USE AND STORAGE.
You agree that Fectiv has no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Content and other communications maintained by the Service. You acknowledge that Fectiv may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time. Fectiv retains the right to create limits on use and storage at our sole discretion at any time with or without notice. You acknowledge that we reserve the right to log off users who are inactive for an extended period of time.
You agree that You will not:
(a) upload, post, email, or otherwise transmit any computer routines, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
(d) copy, reproduce, alter, modify, or publicly display any information displayed on the Service (except for Your User Content), or create derivative works from our website (other than from Your User Content), to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of Fectiv or any other third party, except with the prior written consent of Fectiv or the appropriate third party.
CONTENT OF THE SERVICE
Fectiv takes no responsibility for any third-party Content or User Content (including, without limitation,any viruses or other disabling features), nor does Fectiv have any obligation to monitor such third-party Content. Fectiv reserves the right at all times to remove or refuse to distribute any Content on the Service, such as Content which violates these Terms of Service. Fectiv also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms of Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of Fectiv, its users and the public. Fectiv will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
If Fectiv discloses such information to satisfy any applicable law, regulation, legal process or governmental request or to respond to user support requests, to the extent permitted by law, regulation or legal process, Fectiv agrees to provide You with prompt notice of any such demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
Your Fectiv profile page is public. This includes your name and any activity that you have had on (including without limitation any User Content that you have submitted to).
Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct and acceptable User Content. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data exported from the country in which You reside.
NO RESALE OF THE SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express permission by Fectiv.
YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that (a) all of the information provided by You to Fectiv to participate in the Service is correct and current; and (b) You have all necessary right, power and authority to enter into these Terms of Service and to perform the acts required of You hereunder.
NO WARRANTIES OR REPRESENTATIONS BY Fectiv PTY LTD
You understand and agree that the Service is provided “as is” and Fectiv, its affiliates, suppliers and Resellers expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or bailment of your data on Fectiv’s servers. Fectiv, its affiliates, suppliers and Resellers make no warranty or representation regarding the results that may be obtained from the use of the Service, the security of the Service, or that the Service will meet any user’s requirements. Use of the Service is at Your sole risk. You will be solely responsible for any damage to You resulting from the use of the Service. The entire risk arising out of use, security or performance of the Service remains with You. No oral or written information or advice given by Fectiv or its authorized representatives shall create a warranty or in any way increase the scope of Fectiv’s obligations.
You agree to indemnify, defend and hold harmless Fectiv, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees as and when incurred) arising from Your use of the Service, Your use of Your Account, Your violation of these Terms of Service or the infringement or violation by You or any other User of Your Account, of any intellectual property relating to the Service (including without limitation Your User Content) or other right of any person or entity.
MODIFICATIONS TO SERVICE
Fectiv reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time. You agree that Fectiv shall not be liable to You or to any third party for any modification, suspension, termination or discontinuance of the Service.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between You and Fectiv Software is intended or created by these Terms of Service.
LIMITATION OF LIABILITY
In no event will Fectiv or its affiliates, suppliers or Resellers be liable for any special, incidental, indirect, exemplary or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss or damage) arising out of the use of or inability to use the Service, or the provision of or failure to provide technical or other support service, whether arising in tort (including negligence) contract or any other legal theory, even if Fectiv, its affiliates, suppliers or Resellers have been advised of the possibility of such damages. In any case, Fectiv’s, its affiliates’, suppliers’ and Resellers’ maximum cumulative liability and Your exclusive remedy for any claims arising out of or related to this Agreement will be limited to the amount actually paid by You for the Service.
WAIVER AND SEVERABILITY
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
STATUTE OF LIMITATIONS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of Fectiv services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
ENTIRE AGREEMENT/GENERAL PROVISIONS
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. Fectiv may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of Fectiv upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Fectiv, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. Notices to You may be made via either email or regular mail. The Service may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to You generally on the Service. All notices or other correspondence to Fectiv under this Agreement must be sent via the Fectiv Help Centre.