Legal

Subscription Agreement

This agreement is between you, (“Subscriber”) and Aboundant, LLC. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to these terms and conditions, in which case, the terms “you” or “your” shall refer to that entity. If you do not have the aforementioned authority, you hereby agree that you are personally entering into this agreement as the Subscriber and as such, that you will be personally bound by these terms and conditions.

As part of this agreement, Aboundant will provide you with use of the Aboundant Web Hosting (“Service”). Your registration for, payment for, or use of the Service shall be deemed to be your agreement to abide by both this Agreement and any other terms of use concerning materials available on a Aboundant website incorporated by reference hereto, including but not limited to Aboundant’s privacy and security policies.

1.       The Service
For details of the features, please refer to the Aboundant Website for a detailed list which is incorporated hereto by reference.

2.       Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Aboundant represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform under normal use and circumstances substantially in accordance with its general description as posted on the Aboundant website. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

3.       License & Restrictions
Aboundant hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Aboundant and its licensors.

You may not access the Service if you are a direct competitor of Aboundant, except with Aboundant’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You hereby agree that you will not

a.      license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service;

b.      modify or make derivative works based upon the Service;

c.       reverse engineer or access the Service in order to

i.      build a competitive product or service,

ii.      build a product using similar ideas, features, functions or graphics of the Service, or,

iii.      copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not:

a.      send spam or unsolicited commercial email (UCE) messages, or, send email communications in violation of applicable laws;

b.      send email messages to persons who have no relationship with you, have not requested communications from you, and could not be construed to have provided their email address for the purposes of being contacted in relation to the subject matter in question;

c.      send or store infringing, obscene, threatening, libelous or unlawful material, including material harmful to children or violative of third party privacy rights;

d.     send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

e.      interfere with or disrupt the integrity or performance of the Service or the data contained therein; or

f.        attempt to gain unauthorized access to the Service or its related systems or networks.

4.       Data Ownership, Management, Storage & Use
Aboundant does not own any data or information that you submit to the Service in the course of using it (“Customer Content”). You, not Aboundant, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Content, and Aboundant shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Content.
5.       Data & Access Security

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You agree to notify Aboundant immediately of any unauthorized use of any password or account or any other breach of security known or suspected by you or your Users.

6.       Intellectual Property

Aboundant and its licensors shall own all right, title and interest, including all related Intellectual Property Rights, in and to the technology employed by the Aboundant Service, the Content thereof and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the technology employed therein or any Intellectual Property Rights owned by Aboundant.

7.       Third Party Relationships
Aboundant maintains a program that provides and encourages third parties to utilize Aboundant’s technology to develop add on services called “plug-ins” or “modules” to enhance and extend the functionality of the basic Service. If you use the products or service of these third parties, you enter into an arrangement with them directly and your use of plug-ins, modules or other products or services from a third party and your rights, obligations and terms and conditions surrounding your use thereof is solely between you and the applicable third-party and in no way is Aboundant a party to or responsible for any aspect of that independent relationship. Aboundant provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. Aboundant and its licensors shall have no liability, obligation or responsibility for any correspondence, purchase or promotion between you and any third-party.

Aboundant does not endorse any sites on the Internet that are linked through the Service. Aboundant provides these links to you only as a matter of convenience, and in no event shall Aboundant or its licensors be responsible for any content, products, or other materials on or available from such sites.

8.       Privacy, Communication & Use Of Your Information
Aboundant’s privacy policies may be viewed on our website. Aboundant reserves the right to modify its policies in its reasonable discretion from time to time. Users of the Service are given the opportunity to determine what type of communications they wish to receive from Aboundant and/or its partners. By using the Service, users expressly grant Aboundant the right to communicate by email and other means for the purposes of providing service-related notifications. Those users also grant Aboundant and its partners the right to communicate via email and other means for any other purpose for which they have not expressly requested to not be contacted. Users may opt out of receiving non-service related communications at any time by changing their preferences for such communications via their account page on our website.

As part of this agreement and in consideration of the fact that standard pricing of Subscriptions incorporates an allowance therefor, you hereby give Aboundant permission to display its “Powered by Aboundant” graphic and a link to a Aboundant website at the foot of pages on your website where such pages contain components provided by Aboundant. Furthermore, where you create or cause to be created your own web pages containing Aboundant components, you also agree to cause the “Powered by Aboundant” graphic and a link to the Aboundant website to be included at the foot of such pages. You also hereby agree that Aboundant may publicly disclose the fact that you are a customer by displaying the Subscriber’s name on the Aboundant website and/or in any other marketing materials.

9.       Fees
Subscription charges may be revised for any subsequent subscription period by providing 30 days prior notice to you, which notice may be provided by e-mail to the email address last provided by you or one of your representatives. All payment obligations are non-cancelable and all amounts paid are nonrefundable.

In addition to your basic subscription service installments, you shall pay all fees and charges to your account in accordance with the fees and billing terms in effect at the time a fee or charge is due and payable. Aboundant reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail to the email address last provided by you.

10.    Optional Services and Additional Usage.
Each edition of Aboundant’s Subscription defines certain limits that apply to aspects of your Service such as disk space, communications bandwidth, number of users, maximum number of monthly emails sent and various other limits. These limits are detailed in the description of the edition to which you have subscribed as detailed on the website on which the order is placed. If the quantity used or consumed of any of these aspects of your service meets or exceeds the allowable limit for a given period, you will either be notified of the fact that you have reached the limit, be restricted from further consumption for that limited item, or both. In some cases, you may be entitled to purchase additional units of the limited item. In other cases, if you require additional units of the limited item, you may be required to upgrade to an edition of the service that provides an increased quantity of the limited item. For additional information on limits and purchase of additional items, refer to the current schedule of service options described on our website.

Aboundant will use reasonable efforts to attempt to notify you when use of any particular resource reaches approximately 90% of the maximum allowed; however, any failure by Aboundant to so notify you shall not affect in any way any provisions of this agreement.

11.    Billing and Renewal
Aboundant charges and collects in advance for use of the Service. Aboundant will automatically renew and bill your credit card or, if you are paying annually, at your option, issue an invoice to you 30 days prior to the expiration of your current subscription period. Unless otherwise directed by you in advance of the renewal date, the initial charge for the renewed subscription will be on the same installment basis selected for the previous period. Aboundant is required to give you at least 30-days’ notice by email before changing the fee structure and/or rates applicable to the renewal of your Subscription. Fees for other services will be charged on an as-quoted basis. Aboundant’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.

You agree to provide Aboundant with complete and accurate billing and contact information. This information includes your legal entity name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. You agree to update this information within 15 days of any change to it. If the contact information you have provided is false or fraudulent, Aboundant reserves the right to terminate your access to the Service in addition to any other legal remedies.

Subscribers will be charged in U.S. dollars. If you believe a charge is incorrect, you must contact us in writing within 60 days of the date of the charge to be eligible to receive an adjustment or credit.

12.    Non-Payment and Suspension
In addition to any other rights granted to Aboundant herein, Aboundant reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices are subject to interest of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged during any period of suspension. If you or Aboundant initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Aboundant may charge unpaid fees to your credit card or otherwise bill you for such unpaid fees.

Aboundant reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Aboundant has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

13.    Term of Agreement and Termination
This Agreement commences on the Effective Date which shall be considered to be the earliest date of any of a) the date of your first payment for all or part of the Service, b) the date of a purchase order for the Service, or, c) if you have submitted a request for the Service, the date of submission of the request.

The Initial Term of this Agreement is as specified on an order for the service, or, if not specified thereon, shall be one year from the Effective Date and will automatically renew for successive terms equal in duration to the Initial Term at Aboundant’s then current fees. Either party may terminate this Agreement, effective only upon the expiration of the then current Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice or first billing for the following term. You agree and acknowledge that Aboundant has no obligation to retain the Customer Content, and may delete such Customer Content, after termination.

Any breach of your payment obligations or unauthorized use of the Aboundant Technology or Service will be deemed a material breach of this Agreement. Aboundant, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement.

14.    Mutual Indemnification
You shall indemnify and hold Aboundant, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:

a.       a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party;

b.       a claim, which if true, would constitute a violation by you of your representations and warranties; or

c.        a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Aboundant

i.      gives written notice of the claim promptly to you;

ii.      gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Aboundant of all liability and such settlement does not affect Aboundant’s business or Service);

iii.      provides to you all available information and assistance; and

iv.      has not compromised or settled such claim.

Aboundant shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:

a.       a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date hereof, or a trademark of a third party;

b.       a claim, which if true, would constitute a violation by Aboundant of its representations or warranties; or

c.        a claim arising from breach of this Agreement by Aboundant; provided that you

i.            promptly give written notice of the claim to Aboundant;

ii.            give Aboundant sole control of the defense and settlement of the claim (provided that Aboundant may not settle or defend any claim unless it unconditionally releases you of all liability);

iii.            provide to Aboundant all available information and assistance; and

iv.            have not compromised or settled such claim.

Aboundant shall have no indemnification obligation, and you shall indemnify Aboundant pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).

15.    Use Outside United States of America
Aboundant provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and Australian export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000

Aboundant and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.

16.    Internet Delays
ABOUNDANT’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ABOUNDANT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

17.    Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

18.    Legal Jurisdiction & Interpretation
This Agreement shall be governed by Iowa law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Jose, California.

No text or information set forth on any other document shall add to or vary the terms and conditions of this Agreement unless it expressly cites this agreement, and is signed by an authorized officer of both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of Aboundant to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Aboundant in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Aboundant and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

19.    Serving of Notice
Aboundant may give notice by written communication sent by first class mail or pre-paid post to your address on record with us. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting. Alternatively, Aboundant may give notice by email provided that you acknowledge receipt of said email within 48 hours after its initial transmission. You may give notice to Aboundant (such notice shall be deemed given when received by Aboundant) at any time by any of the formal contact methods specified on the Aboundant website.

20.    Modification to Terms & Assignment of Agreement
Aboundant reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service effective 30 days after serving notice of such modifications as hereinbefore provided. Upon receipt of a notice of modification pursuant to this paragraph, you may terminate this agreement by giving five (5) business days notice prior to the effective date of such modification.

This Agreement may not be assigned by you without the prior written approval of Aboundant but may be assigned without your consent by Aboundant to a parent or subsidiary, an acquirer of assets, or a successor by merger. Any purported assignment in violation of this section shall be void.

 

This agreement was based on the User Agreement for Gnosis for Non-Profits.