Your brand. Your clients. The best fitness tools.

FitClick Biz Terms of Service.

The use of the products, software, services and Web sites described herein (collectively the “Service”) by you (“You” or “Your”) and any individuals that obtain access to use the Service through the means explained herein (“Users”) is subject to the terms of a legal agreement between You and Genesant Technologies, Inc. (“GTI”). Your agreement (the “Agreement”) with GTI includes: (i) the terms and conditions of this document (the “Core Terms”); (ii) the Service purchase terms, the most recent version of which can be viewed at http://www.fitclickbiz.com/www/xnt/fcb/pages/Details.aspx (the “Purchase Terms”); (iii) the FitClick Biz Privacy Policy, the most recent version of which can be viewed at http://www.fitclickbiz.com/www/xnt/fcb/pages/Privacy.aspx (the “Privacy Policy”); and (iv) the terms of any legal notices (each a “Legal Notice”) provided for You to read either within or through use of Service, which provision may be in the form of email. In the event that a Legal Notice contradicts the Core Terms, then such Legal Notice shall take precedence.

  1. 1.    Acceptance of Terms

    1. BY COMPLETING THE REGISTRATION FORM AND CLICKING THE “CREATE ACCOUNT” BUTTON, YOU: (a) agree to be bound by these terms of the Agreement; (b) represent and warrant that, if You are an individual, You are 18 years old or older or, if You are an entity, that You are a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to enter the Agreement; (c) agree to provide true, accurate, current, and complete information in the Service registration form, including billing and payment-related information and other account information (all together, the “Account Information”), and agree to maintain and update this information to keep it true, accurate, current, and complete; and (e) represent and warrant that You have the power and authority to enter into and perform under the Agreement. If You are a third party accessing an account(s) on behalf of an account owner (e.g., as an administrator, consultant, analyst, etc.), You agree that the Agreement applies, mutatis mutandis, to Your activities on behalf of such account owner. If the Agreement or any future changes to the Agreement are unacceptable to You, Your sole remedy is to cancel Your Service. IF YOU DO NOT ACCEPT AND AGREE TO THE AGREEMENT, DO NOT COMPLETE THE REGISTRATION PROCESS.

    2. GTI reserves the right, in its sole discretion, to change, modify, add, or remove all or part of these Core Terms, including but not limited to any term, applicable fee, policy, or guideline, at any time without notice or acceptance by You, except that GTI shall make the most recent version of the Core Terms available at all times at http://www.fitclickbiz.com/www/xnt/fcb/pages/Terms.aspx. Regardless of whether GTI has provided You individual notice, Your continued use of the Service following GTI’s notice or posting of changed Core Terms will constitute Your acceptance of such changes. It is Your responsibility to check regularly for changes to the Core Terms and ensure that any contact information You provide to GTI is updated and correct.

  2. 2.    The Service

    1. The Service includes two (2) Web sites: (i) a Web site that Users use to manage personal diet and workout programs (the “User Site”); and (ii) a Web site through which You complete the Registration Process, submit Account Information, configure the User Site and control User access to the User Site (the “Admin Site”). Both the User Site and Admin Site are owned and operated by GTI.

    2. Using functionality provided through the Admin Site, You may choose to either enable or disable GTI’s User billing system (the “User Billing System”). If You choose to enable the User Billing System, an individual that accesses the User Site may only become a User by purchasing access through the User Billing System. You may configure the duration and cost of access to the Service offered through the User Billing System using functionality provided through the Admin Site.

    3. If You choose to disable the User Billing System, whether or not an individual shall have access to the User Site and thereby become a User shall be determined solely by You, and effectuated by You through Your use of functionality provided through the Admin Site. For any such Users, You may add or remove Users through the Admin Site and thereby allow or disallow access by individuals to the User Site at any time.

    4. The total number of access entitlements for individuals to become Users and use the User Site (“User Accounts”) at any given time shall be determined by Your purchase of User Accounts in denominations offered by GTI in accordance with Section 3 below, regardless of whether You have enabled the User Billing System or not.

    5. Each page of the User Site shall display “Powered by Genesant Technologies, Inc. Copyright © 2017” at the bottom of such page. Each page of the User Site shall also include a statement disclaiming any endorsement by GTI of You. Each page of the Admin Site shall display “Powered by Genesant Technologies, Inc. Copyright © 2017” at the bottom of such page. GTI shall be responsible for hosting, operating, and maintaining the Service. This includes providing and maintaining all facilities, equipment, software, data communications facilities and Internet connections required to serve the User Site and Admin Site in the manner set forth in the Agreement. GTI shall use security measures standard in the industry with respect to maintaining the integrity of the Service.

    6. You acknowledge that Users must agree to the terms of User terms and conditions and User privacy policy (together, the “User Terms”) in order to use the User Site. The User Terms shall be accessible through links displayed on every page of the User Site. GTI in its sole discretion may modify the User Terms without providing notice to You. If any future changes to the User Terms are unacceptable to You, Your sole remedy is to cancel Your Service. You and Users may obtain technical and product use support by submitting support requests through the Service. Upon receiving each support request, GTI shall send an automated or manual response to the sender within two (2) business days of receipt.

    7. THE SERVICE IS DESIGNED TO SERVE CERTAIN NEEDS OF SMALL, INDEPENDENTLY OWNED AND OPERATED BUSINESSES IN THE UNITED STATES AND THEIR CUSTOMERS. THE SERVICE IS NOT INTENDED TO SUPPORT THE NEEDS OF LARGE ENTERPRISES OR INTERNATIONALLY BASED BUSINESSES.

  3. 3.    Financial

    1. Unless modified in accordance with Section 3.C of these Core Terms, You will pay all fees due under the Agreement. GTI, or its third party service provider, shall process all credit card information provided by You. GTI shall provide You with access to all features of the Service (“Access”) for a fixed number of days free of charge (the “Free Trial”), cancelable at any time during such Free Trial without charge. At the end of the Free Trial, GTI, or its third party service provider, shall charge Your credit card account: (i) a non-refundable one-time set-up fee as set forth in the Purchase Terms (the "Set-up Fee"); and (ii) a non-refundable service fee as set forth in the Purchase Terms (a “Monthly Base Service Fee”) for Your first month of Access, and the billing period for such month shall begin on the date that Your Free Trial began. These charges shall automatically occur unless You cancel Your Access prior to the end of the Free Trial. Following the end of Your first month of Access, provided that You have not cancelled Your Access, GTI shall charge You a Monthly Base Service Fee until You cancel Your Access. Each Monthly Base Service Fee shall pay for, and entitle You to the designation for the benefit of Users, of a fixed number of User Accounts as set forth in the Purchase Terms. You may purchase additional User Accounts from GTI at any time and as needed in groups of User Accounts then offered by GTI at then current prices. There shall be no limit to the number of User Accounts that You may purchase.

    2. If Your selected payment method is invalid or You are otherwise past due in Your payments for any reason, Access may be terminated and Your Account Information may be removed from GTI’s servers by GTI with or without notice, and all the information entered by Users contained within the Service may be deleted permanently. GTI accepts no liability for information or content that is deleted due to an invalid payment method or where Your payments are past due. Reactivation of the Service after termination or cancellation for any reason shall require the payment of additional setup fees. In the event You fail to pay charges, GTI may assign unpaid late balances to a collection agency for appropriate action. In the event legal action is necessary to collect on balances due, You agree to reimburse GTI for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. You also agree to pay all current charges for the Service as well as taxes and fees assessed against You or GTI on the charges and all late payment, interest or other fees as stated on Your bill.

    3. The duration of the Free Trial, the Set-up Fee, the Monthly Base Service Fee and the purchasable denominations of User Accounts are each identified in the Purchase Terms. GTI may modify the Purchase Terms at any time, with or without notice; provided however, that GTI shall update the Purchase Terms upon any such modification at the time such modification is effectuated.

    4. GTI may modify its billing practices or late payment charges by providing You with prior written notice of the modification.

    5. GTI in its discretion may offer discounts or special offers from time to time.

    6. GTI may, upon notice required by applicable laws, at any time change the amount of or basis for determining any fee or charge or institute new fees or charges with respect to the Service. Upon renewal of Your Access each month, the price charged may be changed without notice to the then prevailing price for the Service.

    7. You shall pay or otherwise be responsible for all federal, state, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges imposed on, or with respect to, the Service under the Agreement.

    8. You are responsible for charging and collecting from Users any and all applicable taxes. If You fail to impose and/or collect any applicable tax from Users as required herein, then, as between GTI and You, You shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that You have agreed to pay or impose on and/or collect from Users, You agree to indemnify and hold harmless GTI for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from GTI due to Your failure to pay or collect and remit such tax to such authority.

    9. If You choose to enable the User Billing System, GTI will collect fees for access to the Service from Users of the User Site (the “Gross Revenue”) and pay to You, subject to the Minimum Net Revenue Balance, as defined below, within thirty (30) days of the end of the month in which the Gross Revenue was collected, the Net Revenue, as defined below, amount collected from such Users in each such month. For use of the User Billing System GTI shall charge You a fee each month (the “Billing Service Fee”) equal to the Gross Revenue collected in such month multiplied by the current Billing Service Fee percentage listed on the Admin Site. “Net Revenue” shall equal Gross Revenue minus refunds, chargebacks, applicable taxes due, and the Billing Service Fee for such month.

    10. If You choose to enable the User Billing System, Your access to and use of the User Billing System may be canceled at any time for excessive chargebacks or any other activity that GTI, at its sole discretion, determines to be detrimental to GTI or its businesses.

    11. If You choose to enable the User Billing System, the “Minimum Net Revenue Balance” shall mean the minimum amount of Net Revenue that must be collected by GTI in order for GTI to send You a payment of the Net Revenue earned on Your User Site and is the amount currently listed on the Admin Site. Net Revenue earned on Your User Site shall be held by GTI until such Minimum Net Revenue Balance is met.

    12. If You choose to enable the User Billing System, You may not use affiliate marketing programs to sell subscriptions handled by the User Billing System without GTI’s prior written approval.

    13. If You choose to enable the User Billing System, You agree to use best efforts to prevent any credit card chargebacks on the User Billing System by Users of Your User Site.

  4. 4.    System Availability; Changes

    1. You acknowledge that You are responsible for acquiring access to the Internet in order to use the Admin Site and the User Site and that problems with the Internet, including equipment, software or network failures, impairments or congestion, may prevent, interrupt or delay Your access to the Admin Site or the User Site. Furthermore, You acknowledge that unforeseen downtime and unscheduled remedial maintenance of GTI’s equipment, software and Internet access may interrupt Your access to the Admin Site and the User Site.

    2. You acknowledge that Users are responsible for acquiring access to the Internet in order to use the User Site and that problems with the Internet, including equipment, software or network failures, impairments or congestion, may prevent, interrupt or delay User access to the User Site. Furthermore, You acknowledge that unforeseen downtime and unscheduled remedial maintenance of GTI’s equipment, software and Internet access may interrupt User access to the User Site.

    3. GTI may make any changes in the operation of the computer system and facilities used by GTI to run the Service that GTI determines in its sole discretion to be necessary and/or appropriate, including changes in computer hardware, systems and/or applications software, programming languages, data communications, location of systems and service equipment, customer identification procedures, type of terminal equipment, features and functions of the Service, and operational policies and procedures.

    4. GTI 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. You agree that GTI shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the Service. Furthermore, GTI reserves the right at any time to revise and modify the diet and workout program creation software and online community support software that it has created to provide the Service (collectively, the “Software”), release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to You. If any revision or modification to the Software or Service materially changes Your ability to conduct business, Your sole remedy is to cancel Your Service.

    5. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Service resources, shall be subject to the Agreement.

  5. 5.    Privacy And Acceptable Use

    1. You agree that You have received, read and understand the Privacy Policy. The Privacy Policy contains restrictions on Your online conduct (including prohibitions against unsolicited commercial email). The current version of the Privacy Policy is posted online as set forth herein. GTI may change the Privacy Policy upon notice to You, which notice may be provided by posting such new Privacy Policy on the Admin Site.

    2. As part of Your Registration Process, You agree that some communications are required, such as, by way of example and not limitation, customer service messages regarding Your Service, and updates to the Service. In order to opt out of receiving such communications, You must cancel the Service. You also understand and agree that the Service may include certain communications from GTI, such as service announcements and administrative messages, that these communications are considered part of the Service, and that You will not be able to opt out of receiving them.

    3. In addition to those matters set forth in the Privacy Policy, You shall not post, transmit,retransmit, or store material on or through the Service which, in the sole judgment of GTI:(i) is in violation of any local, state, federal, or foreign law or regulation, including U.S. laws and regulations respecting data privacy, international communications and the exporting and importing of data; (ii) is threatening, obscene, indecent, defamatory, or that otherwise could adversely affect any individual, group, or entity (collectively, “Persons”); (iii) violates the rights of any Person, including rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations (“Intellectual Property Rights”) including,but not limited to, the installation or distribution of “pirated” or other software products that are not appropriately licensed for Your use; (iv)contains any viruses, Trojan horses, worms, timebombs, cancelbots or other computer programming routines that are intended to damage,detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (v) is materially false, inaccurate or misleading; (vii) promotes or sells products or services related to firearms, gambling, alcoholic beverages, tobacco products or pornography or (viii) is of an otherwise inappropriate nature or harmful to GTI’s reputation or trademarks, service marks, trade names, trade dress, symbols, logos, designs, domain names,slogans and other source identifiers (collectively, “Marks”).

    4. You agree to indemnify and hold harmless GTI from any claims resulting from the use of theService which damages You, a User or any other party. GTI reserves the right to investigate You,Your business, and/or Your owners, officers, directors, managers, and other principals, Your sites, and the materials comprising the sites at any time. These investigations will be conducted solely for GTI’s benefit, and not for Your benefit or that of any third party. If the investigation reveals any information, act, or omission, which in GTI’s sole opinion, constitutes a violation of any local, state, federal, or foreign law or regulation, or the Privacy Policy, GTI may immediately shut down the User Site, and notify You of the action. You agree to waive any cause of action or claim You may have against GTI for such action. Furthermore, in the event of any breach byYou of the provisions set forth in Section 5.C of these Core Terms, GTI has the right, in its sole discretion, to suspend immediately operation of the Service, or any part thereof, if deemed reasonably necessary by GTI to prevent harm to GTI’s business.

    5. Neither You, nor Your employees, shall attempt to gain or allow access to any data, files or programs to which You are not authorized under the Agreement. If such access is obtained, You shall immediately return such materials to GTI and shall safeguard the same as the confidential information of GTI.

    6. You agree that You will not engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).

    7. GTI grants to You a personal, nontransferable and nonexclusive right and license to use the Software only on a server controlled by GTI for the sole purpose of using the Service; provided that You do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided or authorized by GTI for use in accessing the Service. You specifically agree not to access (or attempt to access) any part of the Service through any automated means (including use of scripts or Web crawlers) and shall ensure that You comply with the instructions set out in any robots.txt file present on the Service. Unless You have been specifically permitted to do so in a separate agreement with GTI, You agree that You will not reproduce, duplicate, copy, sell, trade or resell the Service for any purpose.

    8. You also acknowledge and agree that the Service is intended for access and use by means of Web browsing software, and that GTI does not commit to support any particular browsing platform.

  6. 6.    Additional Resonsibilities

    1. 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 fees associated with such access. You are responsible for obtaining and maintaining all telephone, computer hardware, and other equipment needed for Your access to and use of the Service and any Software, and for all related fees.

    2. You agree to keep Your password confidential. You are entirely responsible for maintaining the security of Your Service, and You are fully responsible for all activities that occur under Your Service and password, and any other actions taken in connection with the Service. You agree to immediately notify GTI of any unauthorized uses of the Service or any other breaches of security. GTI cannot and will not be liable for any loss or damage from Your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will GTI be liable, in any way, for any acts or omissions of You or any user of Your Service to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services, links to other World Wide Web sites or resources, and other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the Person from which such Content originated. This means that You and Users, and not GTI, are entirely responsible for all Content that You and Users upload, post, transmit, or otherwise make available via the Service. The Content must comply with the Agreement, including the Privacy Policy and User Terms, and any applicable law or regulation. You agree that You are solely responsible for (and that GTI has no responsibility to You or to any third party for) any breach of Your obligations under the Agreement and for the consequences (including any loss or damage which GTI may suffer) of any such breach. GTI reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Service.

    3. You understand that by using the Service You may be exposed to Content that You may find offensive, indecent or objectionable and that, in this respect, You use the Service at Your own risk.

  7. 7.    Proprietary Rights

    1. You shall continue to own all Intellectual Property Rights in Your Content and Your Marks that You provide, or make available, to GTI in connection with the Agreement, including derivative works thereof (“Your Material”). You hereby grant GTI a nonexclusive, no-charge license for as long as the Agreement remains in effect to operate, maintain, modify, prepare derivative works of, and otherwise use Your Material in accordance with the Agreement. You also explicitly grant GTI the right to maintain Your Material on GTI’s servers during the term of the Agreement and to authorize the downloading and printing of Your Material, or any portion thereof, by Users for their personal use. This license exists only for as long as You continue to be a Service customer and terminates when Your Service is terminated.

    2. You acknowledge and agree that the Service and the Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content available from GTI for the Service is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by GTI, You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the such Content, the Service, or the Software, in whole or in part. GTI shall continue to own all Intellectual Property Rights in all software, tools, designs, documentation, data, GTI Content, GTI Marks and other material that are utilized in connection with the Agreement, except for Your Materials.

    3. “Identification Data” shall mean User account names, passwords, contact information, credit card information, if any, and email addresses. You shall own the rights to Identification Data and You hereby grant GTI the right to use Identification Data to the extent necessary for GTI to provide the Service. “User Data” shall mean the information and data, excluding Application Data and Identification Data, provided by or collected from Users to the extent that such information or data is personally identifiable or individual specific information or specifically relates to Your User Site(s). You and GTI shall mutually own the rights to User Data. “Application Data” shall mean the information and data provided by or collected from Users, or the results of mathematical functions performed on that data, that is necessary for the performance of the Services’ functionality. You acknowledge that Application Data constitutes an important trade secret of GTI and as such GTI shall own exclusive rights to the Application Data.

    4. You acknowledge that GTI develops or licenses software applications for a variety of platforms and environments. Nothing in the Agreement or any other writing relating to or made a part of the Agreement, shall transfer ownership of such applications or other Intellectual Property Rights or limit in any way GTI’s ownership or right to use the methodologies or design concepts, techniques, knowledge or know-how resulting from GTI’s performance of the work contemplated by, or employed or produced under, the Agreement. Further, GTI hereby retains all right, title and interest in and to, all systems software, middleware and applications software, telecommunications and computer equipment and hardware and other technology used in connection with the provision of the Service to You and all inventions, copyrights, trade secrets, know-how, tools, utilities, methodologies, trademarks and other intellectual property or proprietary rights and interests developed by or on behalf of GTI pursuant to the Agreement, regardless of whether You have provided any recommendations, contributions, improvements, additions, enhancements, edits or specifications; provided however, that You shall retain all Intellectual Property Rights in Your Materials as set forth in Section 7.A above. In the event that any work product resulting from the Agreement is deemed a “work for hire,” You shall take all necessary steps to transfer any and all of its rights in such work product to GTI without charging GTI for such rights.

    5. You acknowledge and agree that GTI may perform for third parties services similar to those provided to You under the Agreement and in doing so GTI may use the same personnel and intellectual property used in providing the Service to You, except for Your Materials. GTI may identify You in GTI’s customer listings and may, after the User Site becomes publicly available, disclose GTI’s role in developing and operating the User Site. Except as specifically provided in the Agreement, neither party may, however, use the other’s Marks without prior approval.

    6. GTI may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act, and You expressly authorize GTI to comply with any and all lawful notices, subpoenas, court orders, or warrants without prior notice to You.

  8. 8.    Representations And Warranties; Disclaimer of Warranties

    1. You represent and warrant that You are not a resident of any country or affiliated with any organization prohibited to do business within the United States as defined and set forth at: http://www.export.gov and http://www.treas.gov/ofac. You further represent and warrant that You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with the Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction You operate or do business. You agree to comply with all applicable U.S. and non-U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations. You shall be responsible for determining what laws or regulations are applicable to Your use of the Service. You shall, upon the request of GTI, provide GTI assurance of Your compliance with those laws. You acknowledge that GTI exercises no control whatsoever over the content of the information passing through the User Site and that it is Your sole responsibility to ensure that the information You and Users transmit and receive complies with all applicable laws and regulations and the Privacy Policy.

    2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

    3. THE SERVICE AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GTI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. YOUR USE OF THE SERVICE, THE SOFTWARE, AND ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

    4. NEITHER THE AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT: (i) THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL, WRITTEN OR UN-WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

    5. GTI ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. THE SERVICE IS DESIGNED TO SERVE CERTAIN NEEDS OF SMALL, INDEPENDENTLY OWNED AND OPERATED BUSINESSES IN THE UNITED STATES. THE SERVICE IS NOT INTENDED TO SUPPORT THE NEEDS OF LARGE ENTERPRISES OR INTERNATIONALLY BASED BUSINESSES. WITHOUT LIMITATION OF ANY OF THE FOREGOING PROVISIONS OF THIS SECTION, GTI PROVIDES NO WARRANTIES WITH RESPECT TO USE OF THE SERVICE OUTSIDE OF ITS INTENDED PURPOSES OR ITS INTENDED CUSTOMERS.

  9. 9.    Limitation of Liability

    1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT GTI AND ITS AFFILIATES, COBRANDERS, OR OTHER PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, BUSINESS REPUTATION, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICE OR THE SOFTWARE; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH, OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (vi) ANY GOOD OR SERVICE OFFERED OR SOLD THROUGH THE SERVICE; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE OR SOFTWARE.

    2. GTI’S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE LESSER OF: (i) ONE THOUSAND DOLLARS ($1,000.00); AND (ii) THE AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO GTI OVER THE COURSE OF THE EXISTING TERM. YOU ACKNOWLEDGE THAT GTI HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THE AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

  10. 10.    Indemnification

    1. You agree to indemnify, defend and hold harmless GTI, and its affiliates, officers, directors, employees, agents, successors, and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations of, any of the following: (a) Your Content, Your conduct, Your use of the Service, the goods or services offered or sold through Your Service, any alleged violation of the Agreement, law, or regulation, or; (b) the death or bodily injury of any agent, employee, customer, User, business invitee, or business visitor or other person caused by Your tortious conduct; (b) the damage, loss or destruction of any real or tangible personal property caused by Your tortious conduct; (c) failure to comply with federal or state regulations, including notice requirements; (d) claims for which You are insured; and (e) any alleged violation of any rights of another, including but not limited to Your use of any Content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Your Service.

    2. GTI reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse Your indemnity obligations.

  11. 11.    Terms And Termination

    1. The initial term of the Agreement will commence on the date that You click the "Create Account" button to acknowledge that You have read, understood, and agree to the Agreement, and will remain in effect for one (1) month (the “Initial Term”). If You wish to terminate the Service at the end of the Initial Term or any subsequent term to which You have agreed (each, a “Renewal Term”), You must sign in to Your account on the Admin Site and cancel Your account there. Neither U.S. mail nor phone notification shall be acceptable for cancellation of Your Service. If You send an email requesting cancellation of Your Service, Your Service shall not have been cancelled unless and until You receive a confirmation email from GTI confirming that Your Service has been cancelled. If You fail to notify GTI of Your intent not to renew prior to the end of the Initial Term or the then-current Renewal Term, the Agreement will be automatically renewed for an additional month and will continue to so renew in the absence of Your cancellation on a month-to-month basis. If You agree to a Renewal Term, or fail to cancel the Service as set forth herein, the Agreement will be renewed at the then-current rates and fees. Except as set forth in the Agreement, neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms. You may cancel Your Service at any time. If You cancel the Service before the end of the Initial or Renewal Term, Your Service and Access will be discontinued and the Agreement will be terminated upon expiration of the Initial Term or then-current Renewal Term, as applicable, and no refund will be provided for any payments You have made.

    2. After expiration or termination of the Agreement, You will no longer have access to Your Admin Site or User Site and all information contained therein may be deleted by GTI.

    3. GTI may terminate the Agreement immediately at any time upon notice to You. Notwithstanding anything to the contrary herein, GTI may also, but has no duty to, immediately suspend or terminate Your Service, terminate Your Access and password, remove Your Service from GTI’s servers, or remove any Content within the User Site, if GTI concludes, in its sole discretion, that You: (i) have breached, violated, or acted inconsistently with the letter or spirit of the Agreement, including the Privacy Policy or any applicable law or regulation; (ii) have provided false information as part of Your Account Information; (iii) have failed to keep Your Account Information complete, true, and accurate; (iv) failed to respond to any email communication sent to the email address listed in Your Account Information; (v) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (vi) are engaged in activities or sales that may damage the rights or reputation of GTI or others (each “Termination for Cause”). Any Termination for Cause will take effect immediately, and You expressly agree that You will not have any opportunity to cure.

    4. In the event a ruling, regulation, or order issued by a judicial, legislative, or regulatory body causes GTI to believe that the Agreement and/or the Service provided hereunder may be in conflict with such rules, regulations, and/or orders, GTI may suspend or terminate the Service, or terminate the Agreement without liability.

    5. Upon any termination of the Service, GTI reserves the right to permanently delete from its servers any and all information and content contained in Your account or Service, including but not limited to order processing information, data, mailing lists, files, email, and any Web pages generated by You, Users or the Service. GTI accepts no liability for such deleted information or content.

    6. Should GTI suspend a portion, but not all, of Your Service due to a violation by You of any law, regulation, or policy, You shall remain liable for all fees applicable to the Service as a whole. Should GTI terminate Your Service, You are liable for the payment of all fees applicable to the Service up to the date of termination, in addition to any early termination fees (if any). You expressly waive any statutory or other legal protection in conflict with the provisions of this Section 11.

  12. 12.    Law And Disputes

    1. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to any principle of conflicts of law that would require or permit the application of the substantive law of any other jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.

    2. Both GTI and You agree to comply fully with all relevant export laws and regulations of the United States to ensure that no information or technical data provided pursuant to the Agreement is exported or re-exported directly or indirectly in violation of law.

    3. At the written request of either party, the parties shall attempt to resolve any dispute arising under or relating to the Agreement through the informal means described in this Section 12.C. Each party shall appoint a senior management representative who does not devote substantially all of his or her time to performance under the Agreement. The representatives shall furnish to each other all non-privileged information with respect to the dispute that the parties believe to be appropriate and germane. The representatives shall negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until: (i) the designated representatives conclude that resolution through continued negotiation does not appear likely; or (ii) thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief.

    4. If disputes between the parties arising from or concerning in any manner the subject matter of the Agreement cannot be resolved through good faith negotiation as provided in Section 12.C, above, either party shall have the right to refer the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association’s rules applicable to commercial disputes. The parties agree that this shall be the sole forum for resolution of the dispute. The arbitration shall be held in Arlington, Virginia. The arbitrator will have no authority to award any damages that are excluded by the provisions of this Agreement. Either party will have the right to apply at any time to a judicial authority for appropriate injunctive or other interim or provisional relief, and will not by doing so be deemed to have breached its agreement to arbitrate or to have affected the powers reserved to the arbitrator.

    5. No proceeding, regardless of form, arising out of or related to the Agreement may be brought by either party more than two (2) years after the accrual of the cause of action, except that: (i) proceedings related to violation of a party’s Intellectual Property Rights or any duty to protect confidential information may be brought at any time within the applicable statute of limitations; and (ii) proceedings for non-payment may be brought up to five (5) years after the date the last payment was due.

  13. 13.    Force Majeure

    1. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet (not resulting from the actions or inactions of GTI), provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If GTI is unable to provide the Service for a period of sixty (60) consecutive days as a result of a continuing force majeure event, You may cancel the Service, but there shall be no liability on the part of GTI.

  14. 14.    Copyright And Trademark Policies

    1. GTI respects the intellectual property of others, and we ask that You do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, or Your Intellectual Property Rights have been otherwise violated, please provide our copyright agent (“Copyright Agent”) for notice the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual- property interest; (ii) a description of the copyrighted work or other intellectual property that You claim has been infringed; (iii) a description of where the material that You claim is infringing is located on the site; (iv) Your address, telephone number, and email address; (v) a statement by You that You have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright or intellectual-property owner or authorized to act on the copyright or intellectual-property owner’s behalf.

    2. The Copyright Agent for notice of claims of copyright or other intellectual-property infringement can be reached by email at customerservice@genesant.com.

  15. 15.    General

    1. Notices under the Agreement shall be by electronic mail or in writing and shall be deemed delivered upon receipt by the party to whom such communication is directed. Any notice to GTI must include Your name and, if sent by electronic mail, must originate from the electronic mail address provided by You with Your Account Information. Notices sent by You to GTI in writing should be addressed to 8150 Leesburg Pike, Suite 400, Vienna, VA 22182, USA. Notwithstanding the foregoing, GTI may provide notices of changes to the Agreement by displaying notices or links to notices to You generally on the Admin Site.

    2. Neither party may assign or otherwise transfer any right or obligation set forth in this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld, except that either party may assign its rights and obligations under this Agreement without the approval of the other party to an entity which acquires all or substantially all of the assets of the assigning party or to any subsidiary or Affiliate or successor in a merger or acquisition of the assigning party; provided that in no event shall such assignment relieve the assigning party of its obligations under this Agreement. Any purported assignment in violation of the preceding sentence shall be void and of no effect. This Agreement shall be binding upon the parties’ respective successors and permitted assigns. This Agreement constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of the Agreement.

    3. The provisions of the Agreement shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the parties shall substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the parties. Each party shall act in good faith in the performance of its respective responsibilities under the Agreement and shall not unreasonably delay, condition or withhold the giving of any consent, decision or approval that is either requested or reasonably required by the other party in order to perform its responsibilities. Each party to the Agreement shall be deemed to be an independent contractor of the other party. Nothing contained herein shall imply any partnership, joint venture, agency or master/servant relationship between the parties and neither party shall have the power to obligate or bind the other in any manner whatsoever. Furthermore, nothing contained herein shall imply or be construed as an endorsement by GTI of Your products, services, business or business practices.

    4. The headings of the various Sections of the Agreement have been inserted for convenience of reference only.

    5. No failure or delay by either party in exercising any right, power or remedy shall operate as a waiver of such right, power or remedy, and no waiver shall be effective unless it is in writing and signed by the waiving party. If either party waives any right, power or remedy, such waiver shall not waive any successive or other right, power or remedy the party may have under the Agreement.

  16. 16.    Survival

    1. Any provision of the Agreement that imposes or contemplates continuing obligations on a party shall survive the expiration or termination of the Agreement, including Sections 3.H, 3.I, 5, 6.B, 6.C, 6.D, 7, 8, 9, 10, 11.F, 11.G, 11.H and 12 through this Section 16 of these Core Terms.