Terms of Services Agreement 1. INTRODUCTION This document (the "Agreement") sets forth the principles, guidelines and requirements of the Terms of Service of iTrends, inc. a Florida based corporation, herein known as the "Company" doing business as brokerexec.com governing the use by the customer ("Customer") of Company's services and products ("Services and Products"). These Terms of Service have been created to promote the integrity, security, reliability and privacy of Company's facilities, network, and Customer data contained within. The Company believes it provides the best services in the industry, and provides the following policies in the best interests of the Company and the Company's clients. The Company retains the right to modify these Terms of Service at any time and from time to time and any such modification shall be automatically effective as to all customers when adopted by Company and published at http://www.brokerexec.com/terms.php. Company shall be the sole and final arbiter as the interpretation of the following. By utilizing the Company's services and products, the Customer agrees to be bound by the terms herein outlined. 2. COMPLIANCE WITH THE LAW 3. PROHIBITED USES OF SERVICES AND PRODUCTS 3.1. General 3.1.1. Pornography and pornographic related material or merchandising are prohibited under all the Company's services. This includes customer sites that include links to pornographic content elsewhere. Further examples of unacceptable content or links include pirated software, "hacker" programs, archives of "Warez Sites", game rooms or MUDs, IRC Bots, Egg Drop programs, any kind of illegal software or shareware. In addition, sites offering any other not related to real estate or the marketing of real estate property is prohibited. 3.1.2. Violations of the rights of any Person protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by Customer. 3.1.3. Actions that restrict or inhibit any Person, whether a customer of Company or otherwise, in its use or enjoyment of any of the Company's Services or Products. 3.2. System and Network 3.2.1. Introduction of malicious programs into the Company's network or server (e.g., viruses and worms). 3.2.2. Effecting security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which Customer is not an intended recipient or logging into a server or account that Customer is not expressly authorized to access. For purposes of this Section 3.2.2., "disruption" includes, but is not limited to, port scans, flood pings, packet spoofing and forged routing information. 3.2.3. Executing any form of network monitoring which will intercept data not intended for the Customer's server. 3.2.4. Circumventing user authentication or security of any host, network or account. 3.2.5. Interfering with or denying service to any user other than Customer's host (for example, denial of service attack). 3.2.6. Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable, a user's terminal session, via any means, locally or via the Internet. 3.2.7. Creating an "active" full time connection on a Company-provided account by using artificial means involving software, programming or any other method. 3.2.8. Any attempt to circumvent or alter monitoring, bandwidth tracking or utilization reporting, or other actions which have the effect of complicating the normal operational procedures of the Company, including but not limited to altering, removing or in any way modifying or tampering with Company created log files. 3.2.9. Any action which the Company determines, in its own judgment, will reflect poorly on the Company or negatively impact its operations. 3.2.10. Any action which the Company deems to be an unacceptable use of resources, business practice or otherwise unacceptable to the Company. 3.3. Billing 3.3.1. Furnishing false or incorrect data on the order form, contract or online application, including fraudulent use of credit card numbers. 3.3.2. Attempting to circumvent or alter the processes any billing procedures or procedures to measure time, bandwidth utilization, or other methods to document "use" of the Company's Services and Products. 3.4. Mail 3.4.1. Sending unsolicited commercial email messages (UCE), including the sending of "junk mail" or other advertising material to individuals who did not specifically request such material, who were not previous customers of Customer or with whom Customer does not have an existing business relationship ("email spam"). 3.4.2. Sending UCE referencing an email address for any domain hosted by the Company; 3.4.3. Sending UCE referencing a domain hosted by the Company; 3.4.4. Sending UCE referencing an IP address hosted by the Company; 3.4.5. Posting advertisements on IRC, ICQ, or any other public chat system containing an email address hosted by the Company, a domain hosted by the Company, an IP address belonging to the Company; 3.4.6. The Company will be the sole arbiter as to what constitutes a violation of these provisions. 3.4.7. Harassment, whether through language, frequency or size of messages. 3.4.8. Unauthorized use, or forging, of mail header information. 3.4.9. Solicitations of mail for any other E-mail address other than that of the poster's account or service with the intent to harass or to collect replies. 3.4.10. Creating or forwarding "chain letters" or other "pyramid schemes" of any type. 3.4.11. Use of unsolicited email originating from within the Company's network or networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by the Company, or connected via the Company's network. 3.4.12. Activities deemed to be unsolicited marketing efforts or otherwise harassing in any way. 3.4.13. Customer will be charged a minimum $300.00 service charge for each instance of a verifiable UCE that is reported to the Company and faces immediate account suspension and/or termination, as well as further penalties. 3.4.14. Email messages received by our mail servers are only guaranteed retention for a maximum of 90 days. Emails older than 90 days are subject to removal. 3.5. Customer Support 3.5.1. The Company promotes a mutually-professional relationship with its customers. Abusive, threatening, obscene or otherwise harassing communications with agents of the Company, via telephone, email, online chat or other means will result in immediate account termination not withstanding any other terms of this agreement. Violation of this or any section of this Agreement will result in refund ineligibility. 4. BANDWIDTH & UTILIZATION In addition to the other terms of this agreement, which apply to all plans, bandwidth and utilization, by its nature, is subject to a number of differing and/or additional terms. 4.1 The Company provides the space and unlimited transfer in good faith to our Customers so that they may create their Web Sites without the fear of running over their Web traffic allocation. While most Customers will use the space and traffic for their legitimate Web Site needs, we recognize that others may try to take advantage of our offer and use the space and traffic in ways for which it is not intended. In the best interests of our Customers and in an effort to maintain the integrity of our service, the following common sense rules will apply: 4.1.1. Customer's site must use and store only the information and data that relates to the Web Site, at the IP address provided by the Company. 4.1.2. Customer may not resell or give away the software, service or web design to another agent, brokerage company or other entity, nor may Customer build Web Sites for the intent of copying content believed to be optimized for the search engine.; 4.1.3. Customer may not use Customer's Web Site to store Web pages, files or data for other IP addresses or domain names, nor may Customer use its Web Site as a repository for file, data or "Warez group" download transfers. The Company reserves the right to make this determination, in its sole and absolute discretion; 4.1.4. The storage and distribution of MP3 format files via the Company network is prohibited. 4.1.5. The Company does not permit sites where 5% or more of the monthly traffic is from file downloads, or sites that use more than 10% of system resources, or sites which in the Company's view are detrimental to the enjoyment of the Company services by the Company's other clients, or are in the sole and final judgment of the Company, detrimental to network or business operations. The Company may take whatever steps necessary to provide its services, and to provide for the enjoyment of such services by all of the Company clients, and to ensure that certain clients do not utilize services to the detriment of other clients. Customers with Web Sites that do not comply with these simple rules, or who seek to take advantage of the Company unlimited storage or traffic plan in any other way, will, at the discretion of the Company , have their sites canceled and/or removed from the servers and have service charges assessed at the discretion of the Company .The Company will be the sole and final arbiter as to Web Sites or usages of resources that constitute violation or intent to violate our policies. Those Customers found in violation of these policies are subject to a $300.00 service charge for each instance of violation, exclusive of charges for the bandwidth and/or other resources utilized. Web Sites which the Company must suspend or cancel due to violation of these rules are not eligible to receive a refund for unused service, and are subject to charges for bandwidth and usage of resources at twice the standard rate for such resources. Acceptance of these Terms of Services, and/or use of Company's services constitutes an acceptance of any fines, penalties or service charges which might arise out of violation of these policies. 5. TERMS AND TERMINATION For the purposes of Section 5 of this agreement, the term "Thirty Day Guarantee Period" shall be defined as the period extending from the date a Customer signs up his or her first membership with the Company through the thirtieth (30) day following the initial signup of the first domain enrolled. 5.1. All cancellations must be received by the Company a minimum of five (5) days prior to the next billing date of the membership being cancelled. 5.1.1. If the Customer notifies the Company less than five (5) days before the next billing date of the membership being cancelled, the charges incurred as a result of that renewal will not be refunded. 5.1.2. Cancellations requested within the Thirty Day Guarantee Period are eligible for a full refund, less setup fees, registration fees and add-on-service fees which are non-refundable. Cancellations requested outside the Thirty Day Guarantee Period are not eligible for a refund in part or in full. 5.1.3. Cancellation requests will only be accepted via e-mail sent to the billing department at billing@brokerexec.com. Any other form of cancellation request is not acceptable. Client will receive an email evidencing cancellation immediately after contacting Company's representatives. 5.2. Customer will not receive a refund for any other reason, including but not limited to: late cancellation, slow connection caused by Customer's ISP/network, Customer's ignorance, InterNIC delays, account termination for violation of policies 5.3. By submitting a credit card or ACH information on the order form, Customer agrees to authorize all recurring charges to the account and any other balances incurred due to overages of limits, additions of extras to the account, service charges and/or any other fees, and to be bound to the terms of this Agreement. 5.4. Customer will not receive a refund for any setup fees or any fees other than the monthly recurring membership fees. 5.5. Customer will be charged a $35 domain reactivation fee for each site suspended due to a billing-related issue. 5.6. Customer shall pay the fees and other charges for Products and Services ordered from Company as published on the Sign Up Chart at time of order. Company reserves the right to change rates without notice; any changes in price will take effect upon renewal of the existing membership account, immediately for new purchases. 5.6.1. Customer agrees that the Company reserves the right to change its fees, features, and discount offerings and the Customer agrees to be bound by any changes of fee, feature, and/or discount. 5.7. The Company reserves the right to terminate this agreement, and to delete the Web Site from its hardware, immediately upon the occurrence of any of the following events: 5.7.1. Non payment of any charges due from Customer; 5.7.2. Breach of any term or condition of this agreement by Customer; 5.7.3. Commencement of any lawsuit or proceeding against Customer arising from or relating to its use of the Web Site, whether or not such suit names the Company as a party or seeks any recovery from the Company. 5.7.4. Payment for any charges is due at the time of signup and renewal respectively. All payments must be in U.S. Dollars. Accounts which have balances outstanding shall be deemed to be in default and subject to termination of service. Customer shall be responsible for all costs of collection, including reasonable attorney's fees and court costs, in event of a default for nonpayment of any amounts due the Company. 6. INDEMNIFICATION OF PROVIDER/RELATIONSHIP OF PARTIES 6.1. Customer agrees to indemnify and hold the Company harmless from any lawsuit, claim, charge, or expense, including reasonable attorney fees and costs of defense, for any matter arising from or relating to Customer's Web Site provided hereunder. 6.2. Nothing contained herein shall be deemed to create a relationship between the Company and Customer in the nature of a partnership, joint venture, editor/publisher or otherwise. Both parties acknowledge and agree that the Company has no interaction with the data or substance of Customer's Web Site, except as necessary to maintain the Web Site. 7. SECURITY/SOFTWARE 7.1. Customer agrees to take all steps reasonable, necessary, and prudent to protect Customer's login ID and password. 7.2. Customer agrees not to attempt to undermine or cause harm to any server, software, system or customer of the Company. 7.3. Customer agrees to maintain Customers' computing equipment responsibly, including running virus software. 7.4. Uploading a virus to a Company server will result in account termination, service charges and/or prosecution. 7.5. Customer acknowledges that the Company cannot provide technical support for any software and/or script that the Customer installs, other than variable name changes. Customer also acknowledges that the Company does not supply technical support for any software package or system, other than initial configuration. The Company supplies technical support for the BrokerExec software issues only. The Company shall be the sole arbiter as to what constitutes a "software or web site design" issue. 8. VIOLATION Any attempt to undermine or cause harm to the Company server or another customer's Web presence is strictly prohibited. Any violation of the above Terms of Service will result in grounds for account termination, with no refunds given; the Company reserves the right to remove any account without prior notice. Violation of these Terms of Service may result in legal action, service charges or a combination thereof. 9. CONFIDENTIALITY Customer acknowledges that by reason of their relationship, both the Customer and the Company may have access to certain products, information and materials relating to the other part's business, which may include business plans, customers, software technology, and marketing plans that are confidential and of substantial value to either party, respectively, and which value would be impaired if such information were disclosed to third parties. Consequently, both the Company and the Customer agree that it will not use in any way for its own account or for the account of any third part, nor disclose to any third part, any such information revealed to it by either part, as the case may be. The Customer and the Company further agrees that each will take every appropriate precaution to protect the confidentiality of such information. In the vent of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential documents shall be returned to the rightful owner, or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will not be contested by the Customer or the Company. 10. REFUSAL OF SERVICE 10.1. The Company reserves the right to refuse or cancel service in its sole discretion with no refunds. 10.2. If any of these Terms of Service are failed to be followed it will result in grounds for immediate account deactivation. 11. DISCLAIMER 11.1. USE OF THE COMPANY'S SERVICES AND PRODUCTS IS AT CUSTOMER'S SOLE RISK. NEITHER THE COMPANY NOR ITS EMPLOYEES, AGENTS, RESELLERS THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, MAKE ANY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE COMPANY'S SERVICES AND PRODUCTS WILL NOT BE INTERRUPTED OR BE ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE COMPANY'S SERVICES AND PRODUCTS OR AS TO THE ACCURACY, OR RELIABILITY OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED OR PROVIDED THROUGH THE COMPANY'S SERVICE, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. THIS INCLUDES LOSS OF DATA, WHETHER RESULTING FROM DELAYS, ON DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY THE COMPANY AND ITS EMPLOYEES OR OTHER CAUSES. 11.2. THE SOLE CUMULATIVE LIABILITY OF THE COMPANY FOR ALL CLAIMS MADE BY THE CUSTOMER, OR ANY OTHER PARTY, REGARDLESS OF FORM, INCLUDING ANY CAUSE OF ACTION BASED ON CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES AND CHARGES PAID TO THE COMPANY BY THE CUSTOMER. 11.3. The Company reserves the right to revise or change these Terms of Service at any time. 11.4. This Agreement shall be governed in all respects under the laws of the Commonwealth of Kentucky applicable to contracts made, accepted and performed wholly in Kentucky, without application to principles of conflict of laws, and the Customer and the Company agree that the sole venue and jurisdiction for any disputes arising from this Agreement shall be the appropriate federal or state court located in Florida. Powerful real estate tools
|
|
