Terms of Use as of 03/03/16

! THIS IS AN ARCHIVED VERSION OF OUR TERMS OF USE. YOU CAN SEE THE CURRENT VERSION HERE.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. 

BY USING THE SERVICE OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.

This agreement is between between Actonia, Inc., an Illinois corporation, (Actonia), and the customer agreeing to these terms (Customer).

1. SEARCH ENGINE MARKETING SERVICE. This agreement provides Customer access to a proprietary online subscription service consisting of a consolidated web-based portal for tracking, reporting, managing and monitoring search engine optimization of Customer’s website. Actonia will provide this functionality through the http://www.seoclarity.net under an order (Service). This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement and will describe the Service ordered in more detail. Customer may allow its employees and contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and contractors.

2. USE OF SERVICE.

• Customer Information. All uploaded information under Customer’s account remains the sole property of Customer, as between Actonia and Customer (Customer Information). Customer grants Actonia a non-exclusive term license to use, modify, copy and prepare derivate works of the Customer Information solely for the purpose of Actonia performing under this agreement. Customer may at any time download its Customer Information as allowed by functionality within the Service.

• Actonia Support. Actonia will provide customer support for the Service at no additional charge, as further detailed at: http://www.seoclarity.net/support, which terms are incorporated into this agreement for all purposes.

• Customer Responsibilities. Customer (i) is solely responsible for Customer Information, (ii) must use commercially reasonable efforts to prevent unauthorized access to the Service, and notify Actonia promptly of any such unauthorized access, and (iii) may use the Service only in accordance with its user guide and applicable law.

• Customer Restrictions Customer may not (i) sell, resell, rent or lease the Service, (ii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (iii) interfere with or disrupt the integrity or performance of the Service, or (iv) attempt to gain unauthorized access to the Service or their related systems or networks.

3. Payment Terms. Customer must pay all fees (US$) due within 15 days of receiving an invoice. Customer is responsible for sales, use and other similar taxes.

4. WARRANTY/SERVICE LEVEL AGREEMENT and REMEDY.

• Actonia warrants to Customer (i) that it will maintain the online availability of the Service for a minimum of 90% in any given month (excluding scheduled outages, force majeure or third party or Customer technology issues), (ii) the functionality of the Service will not materially decrease, (iii) and the Customer support will not materially degrade.

• Limited Remedy and Disclaimer. Customer’s exclusive remedy and Actonia’s sole obligation for FAILURE TO MEET the warranty in (a)(i) above will be for Actonia to provide a credit for the applicable month as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies Actonia of such breach within 30 days of the end of that month.

• DISCLAIMER. ACTONIA DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS THAT SOME OF THE THIRD-PARTY WEBSITES, DATA SERVICE OR LINKED SITES THAT THE SERVICE USE MAY BE UNAVAILABLE TEMPORARILY OR PERMANENTLY, AND ACTONIA IS NOT RESPONSIBLE FOR ANY SUCH UNAVAILABILITY. HOWEVER CUSTOMER MAY TERMINATE THE ORDER AT THE END OF THAT MONTH (FOR ITS CONVENIENCE) UPON ANY SUCH UNAVAILABILITY ON A PERMANENT BASIS.

5. MUTUAL CONFIDENTIALITY.

• Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Actonia’s Confidential Information includes without limitation the Service (including without limitation the Service user interface, design and layout, and pricing information).

• Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

• Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.

6. PROPRIETARY RIGHTS.

• Reservation of Rights by Actonia. The software, web processes, visualizations, designs, and other technologies provided by Actonia as part of the Service are the proprietary property of Actonia and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Actonia. Actonia reserves all rights not expressly granted.

• Customer Restrictions. Customer may not (i) reverse engineer the Service, (ii) remove or modify any proprietary marking or restrictive legends in the Service; or (iii) access the Service to build a competitive product or service, or copy any feature, function or graphic of the Service for competitive purposes.

• Anonymized Data. Actonia may use during and after this agreement all aggregate anonymized data in the Service for purposes of enhancing the Service, technical support and other internal and external business purposes.

7. LIMITATION OF LIABILITY. EXCEPT FOR A VIOLATION OF ACTONIA’S INTELLECTUAL PROPERTY RIGHTS OR FOR BREACHES OF SECTION 5, NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, AND LOSS OF DATA OR INFORMATION) relating TO OR ARISING OUT OF this agreement. Actonia’s total liability relating TO OR ARISING OUT OF this agreement (WHETHER IN CONTRACT, TORT OR OTHERWISE) does not exceed the actual amount paid by CUSTOMER within the preceding 12 months UNDER THIS AGREEMENT.

8. TERM, TERMINATION AND SUSPENSION OF SERVICES.

• Term. This agreement continues until all orders have expired or are terminated.

• Mutual Termination for Material Breach. If either party is in breach of any material term of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

• Actions upon Termination. If Customer terminates this agreement for material breach on the part of Actonia, Actonia will refund to Customer any prepaid and used fees. Upon termination of this agreement for any reason, Customer must pay Actonia for any unpaid amounts, and destroy or return all property of Actonia. Upon Actonia’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

• RETURN OF CUSTOMER PROVIDED INFORMATION. Upon termination of this agreement for any reason, Customer may download its Customer Information and within 60 days after termination Customer may request that Actonia download and provide such information to Customer (to the extent Customer has not already deleted such information from the Service). After such 60-day period, Actonia has no obligation to maintain the Customer Information and may destroy it.

• SUSPENSION OF SERVICE FOR VIOLATIONS OF LAW. Actonia may immediately suspend the Service and remove applicable Customer Information if it in good faith believes that, as part of using the Service, Customer may have violated a law. Actonia may try to contact Customer in advance, but it is not required to do so.

9. INFRINGEMENT INDEMNITY. Actonia will defend or settle any third party claim against Customer to the extent that such claim alleges that the Actonia technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies Actonia of the claim in writing, cooperates with Actonia in the defense and allows Actonia to solely control the defense or settlement of the claim. Costs.Actonia will indemnify Customer from any infringement claim defense costs (incurred as part of Actonia’s obligations above), Actonia negotiated settlement amounts and court awarded damages. Process.  If such a claim appears likely, then Actonia may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Actonia determines that none of these are reasonably available, then Actonia may terminate the Service and refund any prepaid and unused fees. Exclusions.  Actonia has no obligation for any claim arising from: a combination of the Service with other items or aspects where the infringement would not occur but for the combination; use of Customer Information; or items or aspects not provided by Actonia. This section contains Customer’s exclusive remedies and Actonia’s sole liability for intellectual property infringement claims.

10. GOVERNING LAW. This agreement is governed by the State of Illinois, substantive laws, without regard to conflict of laws principles. The prevailing party in any litigation is entitled to recover its attorney’s fees and costs from the other party.

11. THIRD PARTY LINKS. The Service may contain links to third-party websites (Linked Site). The Linked Sites are not under Actonia’s control or owned by Actonia, and Actonia is not responsible for the content, images, software or other items on any Linked Site or site accessed through a Linked Site. The Linked Sites are provided only as a convenience, and the inclusion of any Linked Site does not imply any endorsement or approval of such site by Actonia.

12. OTHER TERMS. This agreement constitutes the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Neither party is relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding.  No modification or waiver of any term of this agreement is effective unless both parties sign it in writing or agree to it through an online process. Neither party may assign or transfer this agreement or an order to a third party, except that the agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party. The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Actonia rejects additional or conflicting terms of a form purchasing document. If there is an inconsistency between this agreement and an order, the order prevails. Any terms that by their nature survive termination or expiration of this agreement, will survive. Except for the payment of monies, neither party is liable for events beyond their reasonable control, including force majeure events. Actonia may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of Actonia, which use must be in accordance with Customer’s trademark guidelines and policies.