Updated November 15, 2016
Want To Contact Us About This Agreement? Legal and any other issues should be addressed to [email protected]
I. Overview and Important Definitions
RefreshWeb offers businesses and individuals access to a rich collection of resources related to search engine optimization, online marketing, and online local business listing management, search analytics, blogs, user-generated content, and personalized content. Collectively, we’ll refer to these resources as the “Services” in this Agreement.
RefreshWeb Services may be offered across a number of web domains, including, without limitation, RefreshWeb.com and RefreshWeb.net. We’ll refer to these domains as the “Sites” in this Agreement.
You may access the Sites or Services with a free account as a user (“User”). While access to certain portions of the Sites and selected features of the Services is free, RefreshWeb reserves the right to charge fees for features and benefits associated with the Sites or Services at any time.
A User who pays for any portion of the Sites or Services shall be referred to as either a “Subscriber” or “Customer” in this Agreement.
Now that we’ve gotten these definitions out of the way, let’s talk about terms specific to certain Services, followed by terms relevant to all Users, Subscribers and/or Customers.
II. Conditions Governing All Users of RefreshWeb Sites and Services
The Services are available only to Users:
- Who are human (not bots) and 13 years of age or older, and Users who are also Subscribers or Customers must be at least 18 years old.
- Who submit truthful and accurate information about themselves and maintain the accuracy of such information.
- Who do not impersonate any other person or entity or otherwise misrepresent their identity in a profile or elsewhere on the Sites.
- With a valid email address.
- Who do not to authorize others to use their account, profile, or messages.
- You agree to inform RefreshWeb immediately upon learning of a security breach that relates to your account or a third party’s improper use of the Services in connection with your account.
You agree that your rights in a subscription or use of any paid Services may be dependent upon demonstrating that you have paid for the subscription or Sites.
You acknowledge that if you sign up for any Services and pay via credit card, and RefreshWeb cannot charge your credit card at renewal, RefreshWeb may cancel your subscription and you may lose access to the Services and any data associated with your subscription.
While some Services may be paid for via invoice by mutual written agreement by you and RefreshWeb, RefreshWeb reserves the right to quote additional fees for invoiced accounts. If RefreshWeb has entered into an invoicing relationship with you, the following terms apply unless superseded by written agreement: you agree to pay all undisputed invoices within 30 days. You agree that RefreshWeb may charge interest of 1.5% per month for past due invoices, or the highest rate permitted by law, and you agree to be liable for reasonable attorney fees and collection costs arising from RefreshWeb’s efforts to collect on past due amounts; If you fail to pay an invoice, RefreshWeb reserves the right to cancel your subscription, access to any Services, and any data associated with your subscription or the Services.
You acknowledge that portions of the Sites and Services are publicly available or available to other Users and may be accessible by syndication programs (including data feed tools), search engines, metasearch tools, crawlers, metacrawlers, and other similar programs.
III. User Obligations Regarding User Generated Content
Any information, profiles, data, text, links, articles, software, photographs, graphics, video, music, sound, messages, or other materials that a User uploads, publishes or displays on the Sites or in connection with the Services, whether publicly posted or privately transmitted, shall be referred to herein as “User Generated Content.” Users assume the following obligations with User Generated Content:
- Users assume legal responsibility for all User Generated Content.
- Users agree that no copyright, trademark, trade secret, publicity or privacy rights, or other intellectual property rights are being violated by your posting, transmission or sharing of any User Generated Content via the Sites or Services.
- Users agree not to post, transmit, or share User Generated Content on the Sites or Services that User does not have permission to post, transmit or share.
IV. RefreshWeb Obligations Regarding User Generated Content
RefreshWeb assumes no obligations to screen and does not routinely pre-screen User Generated Content posted via the Sites or in connection with the Services. RefreshWeb does not guarantee the accuracy, integrity, appropriateness, quality, or validity of User Generated Content. User Generated Content does not necessarily represent the views or opinions of RefreshWeb and under no circumstances will RefreshWeb be liable in any way for any User Generated Content, including without limitation liability related to any loss or damage of any kind incurred as a result of the use of any User Generated Content posted, emailed, or otherwise transmitted via the Sites. As such, you are solely responsible (at your own expense) for creating backup copies and replacing any User Generated Content you post or store on the Sites or otherwise provide to RefreshWeb. Notwithstanding its lack of obligation, RefreshWeb may remove any User Generated Content at any time at its sole discretion, including User Generated Content that in the sole judgment of RefreshWeb violates this TOU or which may be offensive, illegal, or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. RefreshWeb assumes no obligation to maintain or store your content. RefreshWeb may delete, modify, or restrict the display of User Generated Content at any time for any reason, including but not limited to a change in Subscriber account level, Services cancellation, violation of the TOU, or violation of the RefreshWeb Community Etiquette; once deleted, User Generated Content may not be retrieved.
V. RefreshWeb’s Permitted Use of User Generated Content and User Data.
RefreshWeb does not claim ownership of User Generated Content. Subject to the rights granted to RefreshWeb in this TOU, you retain full ownership of all of User Generated Content to the extent you would otherwise have intellectual property rights or other proprietary rights associated with it.
When you post User Generated Content to the Sites, you authorize and direct RefreshWeb to make such copies as RefreshWeb deems necessary to facilitate the posting and storage of User Generated Content on the Sites and provide the Services to you.
You further authorize RefreshWeb to anonymize and aggregate User Generated Content and any data you share with us (“User Data”), including data associated with your google analytics and social media profiles. You authorize RefreshWeb to use such content and data, by way of example and not limitation, to enable RefreshWeb to provide current or future services and for benchmarking, research and development, data products, or other marketing purposes. By choosing to post, upload, or transmit data to the Sites (including authorization to access any third party account or profile), you grant RefreshWeb, its affiliates and partners an irrevocable, perpetual, worldwide, royalty free, non-exclusive license (with the right to sub-license) to use anonymized and aggregated User Generated Content and User Data, in all present and future media, and in any manner relating to the Sites or Services.
In addition, with respect to User Generated Content that you elect to post or transmit on the community portions of the Sites (“Interactive Content”), including without limitation the RefreshWeb Blog, and the Q&A service, and any other future RefreshWeb sites or services that are designed to be viewed by the public or other Subscribers, you grant to RefreshWeb, its affiliates and partners an irrevocable, perpetual, worldwide, royalty free, non-exclusive, transferable license (with the right to sublicense) to use, reproduce, translate, alter, publicly perform, publicly display, modify, adapt, publish, excerpt (in whole or in part) and distribute such Interactive Content, in whole or in part, in all present and future media and in any manner relating to the Sites or Services (including, without limitation, in connection with the appearance of such Interactive Content on RefreshWeb and on the sites of our affiliates, partners and others with whom RefreshWeb may have business relationships relating to the Sites) and the distribution and promotion of the Sites. You further agree that RefreshWeb is free to use any ideas, know-how, concepts, techniques or other materials implied by Interactive Content.
You may remove Interactive Content from the Sites at any time. If you choose to remove Interactive Content, any license granted above for the content shared by on you on the community portions of the Sites will remain in effect. You acknowledge that RefreshWeb may retain archived copies of such Interactive Content.
VI. Services Limitations.
RefreshWeb may establish limits concerning use of the Services at its discretion, including by way of example the frequency with which you may access the Services or your ability to post User Generated Content. RefreshWeb reserves the right to modify or discontinue the Services (including any part or feature thereof) at any time without notice. You agree that RefreshWeb shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
VII. Trademarks; Copyrights; Proprietary Rights
RefreshWeb owns the visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, and all other elements and components of the Sites (“RefreshWeb Content”). RefreshWeb Content specifically excludes User Generated Content.
RefreshWeb owns the copyrights, trademarks, service marks, trade names and other intellectual property and proprietary rights throughout the world associated with RefreshWeb Content, the Sites, and any Services which may be offered in the future.
Users may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the RefreshWeb Content in whole or in part except as expressly authorized in writing by RefreshWeb. RefreshWeb does not grant any express or implied rights in RefreshWeb Content to Users, and all rights in and to the Sites and to RefreshWeb’s Content are retained and reserved by RefreshWeb.
Moreover, the term RefreshWeb and anything on the Sites that identifies or distinguishes RefreshWeb from other goods are services are registered or unregistered trademarks of RefreshWeb (the “RefreshWeb Trademarks”). Except as otherwise permitted by law, you agree not to display or use in any manner the RefreshWeb Trademarks without RefreshWeb’s prior written consent.
VIII. Copyright Infringement
If you believe that your work has been used in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify RefreshWeb at [email protected]
You must provide all of the following in writing: identify the copyrighted work that you claim has been infringed (or if multiple copyrighted works, then a representative list of such works); identify the content on the Services that you claim is infringing with enough detail so that RefreshWeb may locate it; provide 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; provide a statement by you declaring that the notification is accurate, and, under penalty of perjury, that you are the exclusive owner of the copyright interest involved or that you are authorized to act on behalf of the exclusive owner; provide information reasonably sufficient to permit RefreshWeb to contact you, such as an address, telephone number, and email address; and your physical or electronic signature.
Upon receipt of notice as described above, RefreshWeb will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged use from the Services or termination of the posting account.
User Indemnification of RefreshWeb for Certain Actions
X. RefreshWeb Warranties and Limitations
RefreshWeb provides the Services “as-is”. RefreshWeb provides no express warranties, guarantees, or conditions related to the Sites or Services. To the extent permitted by law, RefreshWeb disclaims any implied warranties including those of merchantability, fitness for a particular purpose, workmanlike effort, and non-infringement, and including those arising by usage of trade, course of dealing, or course of performance. Without limiting the generality of the foregoing, RefreshWeb does not warrant that the Sites or Services will be accurate, error-free, virus-free, or uninterrupted or that it will meet any specific requirements of a User or Subscriber. Users may have additional rights as a consumer under local law that this Agreement cannot change.
XI. LIABILITY LIMITATION; EXCLUSIVE REMEDIES FOR USERS LIMITATION
COMPANY’S LIABILITY FOR ANY LOSSES, INJURY OR DAMAGES TO PERSONS OR PROPERTIES OR FOR ANY OTHER CLAIM RELATED TO THE SERVICES PROVIDED BY COMPANY TO CLIENT, SHALL BE LIMITED TO THE AMOUNT OF PAYMENT RECEIVED BY COMPANY FROM CLIENT FOR THE PARTICULAR SERVICE PROVIDED GIVING RISE TO THE CLAIM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, LOST PROFITS, OR PUNITIVE DAMAGES. THE LIMITATION OF LIABILITY SET FORTH HEREIN IS FOR ANY AND ALL MATTERS FOR WHICH COMPANY MAY OTHERWISE HAVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED BY COMPANY TO CLIENT, WHETHER THE CLAIM ARISES IN CONTRACT, TORT, STATUTE OR OTHERWISE.
Remedy. Client’s exclusive remedy for any claim arising out of or relating to this Agreement will be for Company, upon receipt of written notice, either (i) to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which Company is at fault, or (ii) return to Client the fees paid by Client to Company for the particular service provided that gives rise to the claim. Client agrees that it will not allege that this remedy fails its essential purpose.
Non-Solicitation. During any period in which Company is providing services to Client and a period of one (1) year after the completion of such services, Client will not, directly or indirectly, hire or solicit or in any manner attempt to influence or induce any employee of Company or its affiliates to leave the employment of Company or its affiliates.
Termination of Services by Company. Company may terminate any services being provided to Client in the event Client fails to make any payment due under the terms of this Agreement within fifteen (15) days after the due date therefore.
Governing Law and Construction. This Agreement and the services performed hereunder will be governed by and construed in accordance with the laws of Texas, without regard to the principles of conflicts of law.
Survival. The terms and conditions set forth above shall survive the termination of this Agreement and Company’s performance of the services for Client hereunder.
Entire Agreement. This Agreement states the entire Agreement between the parties and supersedes all previous contracts, proposals, oral or written, and all other communications between the parties respecting the subject matter hereof.
Counterparts. This Agreement may be executed (by original or telecopied signature) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.