Agenta (the "Service") is a sub-brand of Rudder Creative LLC., a Tennessee company located at 401 Commerce St #1250, Nashville, TN 37219. The entity providing the Service is Rudder Creative LLC. All references to "Agenta" in these terms means Rudder Creative LLC., including all of its divisions and subsidiaries.
Acceptance of Terms: Binding Contract
The TOS constitute a binding agreement between Agenta and you ("Customer"). The TOS apply to all services and products, and related support and consulting services and products (each a "Service" and collectively "Services"), made available by Agenta to Customer pursuant to the specifications of a Customer agreement with Agenta ("Customer Agreement"), or a Customer purchase order submitted by Customer in connection with this Agreement ("Purchase Order") for the term specified in such Purchase Order ("Initial Term"), and all renewals and/or extensions as set forth in this Agreement (collectively, the "Term"). Agenta’s acceptance of any Purchase Order is expressly conditioned upon Customer’s assent to this Agreement. By accepting the terms of this Agreement, electronically or in writing, or by otherwise using the Service or the Services, including, but not limited to, the submission of materials, information and/or content to Agenta for Agenta’s performance or rendering of Services, or making payment and/or authorizing payment to Agenta, Customer agrees to be bound by the TOS set forth in this Agreement. Customer also agrees that Customer’s electronic acceptance of this Agreement shall have the same force and effect as if Customer had agreed to the TOS set forth in this Agreement in writing. No terms or conditions set forth in Customer’s Purchase Order, to which notice of objection is hereby given, or in any further correspondence between Customer and Agenta, shall alter or supplement this Agreement unless both Agenta and Customer have expressly agreed in writing to modify this Agreement. Neither Agenta’s commencement of performance nor completion of Services shall be deemed or construed as acceptance of Customer’s additional or different terms and conditions. Agenta reserves the right to reject any Purchase Order or to cancel any Purchase Order previously accepted if Agenta determines that Customer is in breach of any term or condition set forth in this Agreement.
Agenta provides its services to Customer subject to this Agreement, which may be updated from time to time without notice. Customer may review the most current version of the TOS at https://agentawebsites.com/terms.php. By using Agenta’s Service or Services, Customer agrees to (and hereby signs) the most current version of the TOS. If Customer does not expressly reject the TOS at the point of sale, Customer agrees to (and hereby signs) the TOS and Agenta is instructed to commence work on Customer’s website as if Customer had expressly accepted the TOS. If Customer expressly rejects the TOS set forth in this Agreement at the point of sale, Agenta has no obligation to enter into a Customer Agreement or Purchase Order and may refuse to enter into a Customer Agreement or Purchase Order.
Description of Services
Agenta designs and hosts websites, provides Internet-based marketing services, and provides other website-related services, including, but not limited to, support and modification of websites, e-commerce, web-traffic reporting, database development, easy interface for updating the website, IDX, as well as, additional website-related and graphic design services. Customer understands that Agenta’s Services may include certain communications from Agenta such as advertisements, notices, service announcements and newsletters. Customer is responsible for obtaining access to Agenta’s Services that may involve third-party fees (including but not limited to, ISP, merchant accounts and gateways). Customer also is responsible for all equipment and software necessary to access Agenta’s Services.
Electronic Delivery Policy
Agenta is a website-related business and communicates with its Customers electronically. When a Customer accepts the TOS, Customer consents to receive electronically any notices, progress reports, agreements, disclosures, or other communications ("Notices") from Agenta. Customer agrees that Agenta may send Notices in any of the following ways: (1) to the email address provided by Customer to Agenta at the time of sale; or (2) to the new email address account Customer establishes through Agenta. Customer agrees to check the designated email addresses regularly for Notices. All Notices from Agenta are effective at the time they are sent by Agenta, regardless of whether the Notice is read or received by Customer.
Customer hereby gives permission to Agenta to use samples or links to Customer’s website designed or marketed by Agenta for marketing and advertising purposes, including but not limited to, use in Agenta’s online portfolio and social media websites.
Call Monitoring and Recording Privacy Statement
As part of Agenta’s commitment to providing its Customers with the best possible service, Agenta may monitor and record telephone calls to and from Agenta. Agenta also may archive recorded voice mail messages. Agenta records telephone calls for training purposes, to improve customer service, and to ensure an accurate record of Customer calls, which may be needed to support transactions that take place over the telephone. Agenta undertakes such actions in order to enable it to identify how to better serve its Customers.
As Agenta strives to offer the very best Services, there are certain guidelines and policies that must govern Agenta’s efforts and relationships with its Customers. Practices that are in violation of these guidelines and policies are forbidden and will result in the immediate termination of Agenta’s Services. Customer acknowledges and agrees that Agenta has sole discretion over decisions regarding compliance with these guidelines and policies. Unacceptable practices include, but are not limited to:
- Adult or pornographic material including, but not limited to, sexually explicit or suggestive material
- Sexually oriented products or material
- Nudity, including airbrushing (exceptions granted on a case-by-case basis if for medical or artistic purposes)
- Offensive or otherwise distasteful material
- Bulk emailing tools
- Distribution of internet viruses or other harmful or destructive activities
- Gambling, gaming, lotteries, and similar activities
- Harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racial, chauvinistic, ethnically offensive or otherwise objectionable content or language
- Defamatory, hateful or revenge content or language.
- Content or language that is harmful to minors in any way
- Illegal activities such as Ponzi schemes, fraudulent charging of credit cards, copyright violations, plagiarism, software piracy, and all unauthorized use of materials or content that infringes on third parties’ intellectual properties
- Intentional or unintentional violations of any applicable local, state, national or international law.
- Reselling email accounts or hosting accounts to third parties
- Reselling of any Agenta services including, but not limited to, design services and updates to third parties without a written re-seller agreement.
- Spamming and all other forms of unsolicited messages including, but not limited to, spam, pyramid schemes, chain letters, and junk email
- Links to other sites that are in violation of Agenta’s policies and guidelines
- Other activities, whether lawful or unlawful, that Agenta deems to be in poor taste or that reflect adversely on Agenta or Agenta’s other Customers
- Agenta reserves the right to refuse to design or host an account at its sole discretion at any time.
As an Agenta Customer, you agree to conduct your business in a legal and professional manner. As an Agenta Customer, you acknowledge and agree that all information, data, text, software, music, sound, photographs, video, messages and other material (Content) on Customer’s website is the sole responsibility of Customer. Customer is fully responsible for all website content and agrees to hold Agenta harmless in the event of third parties’ legal issues brought against Customer for Customer’s business practices. Agenta retains the right to terminate any accounts that are in violation of the letter or spirit of this TOS. At its sole discretion and at any time, Agenta may discontinue providing Services, or any part thereof, with or without notice. If an account is terminated by Agenta for a TOS violation, Customer is not eligible for a full refund and any refund is subject to the Termination/Cancellation of Services Policy. (See Termination/Cancellation of Services at Section 19)
As an Agenta Customer you may have access to editing tools for your website. Customer may edit, add, or delete content to or from the website at any time. Accordingly, Agenta may or may not pre-screen content. Agenta shall have the right, but not the obligation, to pre-screen and refuse or remove any content at its sole discretion. Customer agrees that Customer bears all risks associated with the use of all content, whether edited or written by Agenta, including any reliance upon accuracy, usefulness or completeness.
Customer acknowledges that Agenta may access, preserve, and disclose Customer’s account information and content if required to do so by law or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce the TOS, provide customer service or protect the rights, property, or safety of Agenta and the public.
ACCEPTABLE USE POLICY
This AUP is incorporated by reference in your hosting services agreement with Agenta. Your services may be suspended or terminated for violation of this Acceptable Use Policy ("AUP") in accordance with the TOS. Inquiries regarding the AUP should be directed to firstname.lastname@example.org.
You may not attempt to probe, scan, penetrate or test the vulnerability of a Agenta system or network, or to breach Agenta’s security or authentication measures, whether by passive or intrusive techniques, without Agenta’s express written consent.
Newsgroup, Chat Forums, Other Networks
You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums. You must comply with the rules of any other network you access or participate in using your Agenta services.
You may not publish, transmit or store on or via Agenta’s network and equipment any content or links to any content that Agenta reasonably believes:
- Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
- is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
- is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- is defamatory or violates a person’s privacy;
- creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement;
- improperly exposes trade secrets or other confidential or proprietary information of another person;
- is intended to assist others in defeating technical copyright protections;
- infringes on another person’s copyright, trade or service mark, patent, or other property right;
- promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
- is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Agenta; or
- is otherwise malicious, fraudulent, or may result in retaliation against Agenta by offended viewers or recipients, or is intended to harass or threaten;
- Content "published or transmitted" via Agenta’s network or equipment includes Web content, email, bulletin board postings, chat, tweets, and any other type of posting or transmission that relies on the Internet.
Customer may not use Agenta’s network or services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law unless Customer has been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or Customer is otherwise permitted by established copyright law to copy the work in that manner. It is Agenta’s policy to terminate in appropriate circumstances the services of customers who are repeat infringers.
Customer guarantees that they have the legal right to all elements of text, photographs, trademarks, products or any other assets or content provided to Agenta, and agree that Agenta will not be held responsible for third-party claims of any kind, nor shall Agenta be required to indemnify any party for any loss, damage or harm caused by the illegal use of any copyrighted material supplied to Agenta.
You must have valid and current information on file with your domain name registrar for any domain hosted on the Agenta network. You may only use IP addresses assigned to you by Agenta in connection with your Agenta services. You agree that if the Agenta IP numbers assigned to your account are listed on an abuse database (like, for example, Spamhaus), you will be in violation of this AUP, and Agenta may take reasonable action to protect its IP numbers, including suspension and/or termination of your service, regardless of whether the IP numbers were listed as a result of your actions.
No credit will be available under a Agenta service level agreement for interruptions of service resulting from violations of the AUP.
Intellectual Property Policy
Agenta respects copyright laws and the intellectual property of others. Agenta may terminate Services and/or accounts for copyright infringement. Agenta will not use copyrighted or trademarked materials on any Customer’s website without the express written consent of the copyright or trademark owner. It is Customer’s responsibility to ensure that all content submitted to Agenta is original content and free from third-party copyright or trademark protection, or to obtain permission to use copyrighted or trademarked materials from the copyright or trademark owner. Customer assumes full liability for any infringement of any third-party’s copyright or trademark rights as a result of the use of protected materials on Customer’s website, including, but not limited to, any infringement due to website content, website design or the look and feel of Customer’s website.
Original content provided to Agenta by the Customer will remain the intellectual property of Customer, including text, imagery, video or other media. Agenta does not return original content to Customer. Unless a request to return the original content to Customer is made in writing upon submission of the content, the content may be destroyed at any time, including during an active subscription held by the Customer. At it's discretion, Agenta may attempt to honor requests to return original content. However, Agenta has no liability and does not guarantee the return of any content to the Customer.
Content provided to the Customer by Agenta remains the intellectual property of Agenta, including text, imagery, video or other media used in the construction of websites. All content provided to the Customer by Agenta is considered proprietary, and is non-transferrable.
The designs and database technology for all Agenta website products are proprietary.
Domain names purchased by Agenta and website designs, databases, stores, or programs created by Agenta, are the property of Agenta until Customer has paid all fees including one full year of monthly hosting. (See Domain Names Purchase/Hosting Agreement)
Recognizing the global nature of the Internet, Customer agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Customer agrees to comply with all laws regarding the transmission of technical data exported from the United States, or the country in which Customer resides and/or transacts business.
Customer acknowledges that by using Agenta’s Services Customer will be causing communications to be sent through Agenta’s computer networks, which may be located throughout the United States. Due to the nature of electronic communications, even communications that seem to be intrastate can result in the transmission of interstate communications. Customer acknowledges that use of Agenta’s services results in interstate data transmissions.
Website Construction Procedure
Where applicable, with help and input from Customer, Agenta will prepare the appropriate design and work with the content provided by Customer for development of the website. Customer must submit content to the design department before construction begins on the website.
Prior to the website being taken live, Customer will receive a missing information notification if content is incomplete. Customer will then have five (5) business days to submit missing or incomplete content. If complete content is not received, the website will be taken live "as-is". If the website is taken live without all of the pages completed due to incomplete content, those pages may be banked and developed in the future using Customer’s Monthly Maintenance time (as available for Standard and Pro packages).
In submitting content, links to sample websites Customer likes are for general information purposes only and assist Agenta with the design of Customer’s website. The functionality and detail of the sample sites will not be duplicated unless such functionality and detail are specifically included and itemized in a separate proposal. Direct duplications of sample sites will not be permitted.
The design and content layout are completed by the designer and presented to Customer for approval. After Customer approves the website, the website will go live. Agenta may review the text before the website goes live to correct any possible errors. Agenta is not liable for the accuracy of information, typing or spelling errors in any of the content approved by Customer and published on the website. Customer will be notified by email that the website is live.
Customer understands, agrees, and acknowledges that Agenta does not guarantee a time frame for completion of ANY website. A website cannot be completed without submission of complete content, design approvals, and participation from Customer. If Customer continues submitting additional content throughout the design process, the design time frame is increased. If Customer does not submit complete content and Agenta is not able to start or complete the custom website design, Customer still is responsible for and agrees to pay all fees incurred, including, but not limited to, set-up, enhancement, and monthly hosting charges that begin accruing from date of sale. If Customer’s website requires custom programming, functionality, e-commerce, IDX, or the use of a database, the overall development time will be extended.
For applicable products, Agenta may be required to submit information about the customer to relevant MLS board(s) for the purpose of data license approval. By accepting the TOS the Customer acknowledges that personal information, including but not limited to, the Customers name, address, telephone number(s), real estate license number and other personal information, may be submitted to applicable MLS Board(s) without further consent of the Customer.
By accepting the TOS, the Customer hereby attests that all information submitted is accurate, and that Agenta is in no way responsible for any inaccurate or false information submitted to applicable MLS board(S) or other industry related persons or entities.
In order to access MLS data via IDX, Customer acknowledges that the Customer must receive advanced approval from associated MLS board(s). Agenta shall not be held responsible for any data license request being declined by MLS board(s), and is not required to provide a refund of any kind should a data license request be declined. In the event a data license request is denied, Agenta will not refund any payments made by the Customer up to the date a notification of decline is received. This includes any setup, hosting, domain registration, design, development, consulting or other costs that may have been accrued.
Agenta is also not responsible for any sudden discontinuation, deprecation, down time, or other interference of MLS data. Customer acknowledges that all MLS data is provided by a third-party provider, and that Agenta, as a reseller of the data, is not responsible for the efficacy of any third-party products as they relate to MLS or IDX data.
Agenta shall contact or meet with Customer on a mutually acceptable schedule to report all tasks completed, problems encountered, and recommended changes relating to the development and testing of the website. Agenta shall inform Customer promptly by telephone or e-mail upon discovery of any event or problem that may delay significantly the development of the design work.
Agenta agrees to provide any and all Services, including but not limited to, the design and construction of a website or marketing services, pursuant to the specifications contained in the original terms of sale. Any additions or changes to Services requested by Customer that are outside of or beyond the scope of the original terms of sale will be billed to Customer at Agenta’s standard hourly rate ($125/hour), and Customer agrees to pay all charges billed for such additions or changes. Agenta is not obligated to complete any additions or changes to Services requested by Customer that are outside of the scope of work contained in the original terms of sale. If Agenta does not agree to the Customer’s requests for additions or changes to Services, Customer still is obligated to pay all fees incurred and due. With respect to the design and construction of a website, Customer will be provided two (2) opportunities to alter the proposed web design after delivery of the concept designs by Agenta to the Customer for review.
Agenta agrees to provide content-related updates to customers subscribed to an Agenta plan that includes "Ongoing Design Updates" at no additional charge. Content-related updates include, but are not necessarily limited to, changes to website imagery and text, new pages, new sections, or the addition of existing features as included with the Customer's subscription plan. This service does not include development of custom features or applications, such as mobile applications, calculators, or other special features. Custom application development will be priced upon request.
Testing and Acceptance Procedures
Agenta will make a good faith effort to test all deliverables thoroughly and make all necessary corrections as a result of such testing prior to sending the deliverables to Customer. Upon receipt of the deliverables, Customer shall either: (1) accept the deliverables and make the required milestone payment set forth therein; or (2) provide Agenta with written or e-mail notification of any corrections Customer requires, and a suggested date for completion of required corrections. The suggested date for completion of required corrections shall be reasonable and mutually acceptable to both Agenta and Customer. Customer shall designate one representative as the designated person who will send, receive, and accept all deliverables and communications between Agenta and Customer. Agenta shall not have any obligation to consider for approval, or respond to, communication, deliverables, or materials submitted by any person other than the person designated by the Customer. Customer has the right to change its designated person upon two (2) days’ notice to Agenta.
Scope of Work
Agenta will facilitate the creation of all necessary change procedures with Customer. Agenta will ensure all website products work in across modern browsers (Chrome, Safari, FireFox, and Edge), and also ensure conversion works on mobile browsers (iPhone/iPad [iOS 10+] and Android [4.x+].
Customer is responsible for testing and approving the functionality of all Services, including but not limited to websites and marketing services, upon Agenta’s request and notification that the Services and/or website or marketing services have been completed. Customer’s responsibility includes, but is not limited to, testing the functionality of all Services, website pages, databases, galleries, forums, etc. Upon Customer’s approval of the Services and/or website to go live, Customer agrees and acknowledges that Services have been rendered by Agenta and the functionality of the website has been tested and approved by Customer.
Customer acknowledges and agrees that if Customer does not respond within five (5) business days to Agenta’s request for approval and notification that the Services and/or website have been completed, the Services and/or website, along with the functionality of the Services and/or website and services rendered, will be deemed to be approved by the Customer, and the Services and/or website will be taken live "as-is".
Customer acknowledges and agrees that if Customer does not respond to requests by Agenta for missing or incomplete information, a final notification and/or request will be sent to Customer. If Customer does not respond within ten (10) business days to Agenta’s notification or requests for missing information, the Services and/or website, along with the functionality of the Services and/or website and the services rendered, will be deemed to be approved by the Customer, and the Services and/or website will be taken live with the missing or incomplete information "as-is" or "under construction".
Warranty Period and Website and Online Marketing Maintenance
Agenta agrees to provide Customer with reasonable technical support and assistance to maintain and update the Services and/or website during a warranty period of thirty (30) days after publishing the Services and/or website on its final domain name ("Warranty Period"). Such technical support and assistance will be provided at no charge to Customer for up to a total of two (2) hours. For technical support and assistance provided to Customer by Agenta beyond two (2) hours, Customer agrees to pay Agenta at its standard hourly rates ($125/hour). After the expiration of the Warranty Period, Customer may enter into a new agreement with Agenta for Services and/or website maintenance ("Maintenance Agreement") wherein Agenta agrees to provide reasonable technical support and assistance to Customer to maintain and update the Services and/or website on the Internet for an agreed upon hourly fee. Any such fee will be due and payable when billed pursuant to the TOS. Such maintenance shall include correcting any errors or any failure of the Services and/or website to conform to the specifications and the development of enhancements to the originally contracted project. The Warranty Period shall not include the development of enhancements to the website expressly considered by Section 10 of the TOS.
Customer agrees that if Customer wishes to modify and/or enhance the Services and/or website, requested enhancements will be performed by Agenta. Agenta is not required to allow any enhancements or maintenance to be performed by a third-party. Any requests for enhancements or maintenance to be performed by a third-party must be submitted in writing to Agenta no less than five (5) business days in advance of any work commencing. Agenta reserves the right to deny any request for a third-party to conduct any enhancements or maintenance.
Agenta’s technical support department can be contacted at email@example.com for any concerns or problems with hosting or functionality of the Services and/or website after the Services and/or website are live. If Customer uses Agenta’s technical support services, including but not limited to screen share sessions, Customer acknowledges and understands that Agenta does not warranty that technical support services will meet Customer’s requirements or be error free. (See Disclaimer of Warranties and Limitation of Liabilities.)
Agenta strives to offer the best service available. Customer service complaints or concerns should be emailed to firstname.lastname@example.org.
Use and Storage
Customer acknowledges that Agenta may establish general guidelines and limits concerning the use of Agenta’s Services and may modify these guidelines at any time. Limits may include but are not restricted to, the maximum disk space that will be allotted on Agenta’s servers on Customer’s behalf. Agenta periodically backs up the websites it hosts. However, Customer acknowledges that Agenta is not responsible for backing up Customer’s website and data. Customer should seek appropriate backup solutions. Changes made by Customer using the editing tool or by Agenta may be lost if data loss occurs after a scheduled backup by Agenta.
Updates to Live Website/Design Time
Based on Customer’s monthly website service package, Agenta may provide free updates and changes or "design / development hours" that are available to Customer to use after the website is live. Design and/or development time is limited to the total monthly allowance as outlined in the Customer's website service package. After the website is live, Customer may wish to make changes or updates to the website from time to time. For changes that cannot be made directly by the Customer via Content Management System(s) as supplied by Agenta, Customer may use available Agenta maintenance hours. These changes must be requested through Agenta’s Support Department at email@example.com. Design hours can be used for modifying the design or layout of the website. Design hours cannot be used toward the completion or modification of databases, custom programming, or other enhancements that must be purchased. Changes or updates that exceed the Customer’s available "design hours" will be billed to the Customer at the standard hourly rate.
Agenta is not responsible for any changes Customer makes to his/her website, or if Customer breaks the website. Time required by Agenta to repair changes made by Customer will be billed to Customer at Agenta’s standard hourly rate if it exceeds available "design / development hours".
Domain Names Purchased/Hosting Agreement/Internet Marketing Services
Monthly hosting and Internet marketing services are billed starting on the date of sale, regardless of the date the website goes live, because hosting and Internet marketing costs are incurred immediately, and server space is secured for the developing website and/or for existing Customer domain names. Hosting and Internet Marketing Services may be cancelled by the Customer at any time via written request to Agenta at firstname.lastname@example.org.
Domain names purchased by Agenta are the property of Agenta until Customer has paid all fees including one (1) full year of domain name registration, domain privacy, and SSL certificate registration. At that time ownership of a domain name may be transferred to the Customer’s control upon receipt of the Customer’s written request. Sham purchases of sites may not be transacted with the intent and/or result of having a site built, then transferring the site to another hosting provider.
Upon transfer of domain and/or website to Customer or another service provider, at any time, Customer agrees that Agenta has met in full its obligation to Customer, and Agenta is released of all past and future obligations to the Customer. Additional work and/or hosting done for Customer must be agreed to in writing and paid for by Customer.
Domain names are purchased through a third-party service. Agenta cannot guarantee the availability of domain names and has no liability for a domain name not being available for purchase after the initial sale. If a domain name is not available for purchase, Agenta will assist the Customer in selecting and purchasing an alternate domain name. Domain names already owned by the Customer remain the property of the Customer and renewal of the domain name is the Customer’s responsibility. The renewal of any domain name transferred to the Customer is the responsibility of the Customer. In the event a domain name initially was purchased by Agenta for or on behalf of a Customer, Customer is solely responsible for any renewal of the domain name and Agenta shall not be responsible or liable for the expiration of any domain name, however selected or purchased. Service and technical support for domain names are provided by eNom. (www.enom.com), an entity wholly separate and distinct from Agenta. Service and technical support for domain names can be referred to email@example.com.
Database content, such as blog posts, created by the Customer as part of any website developed by Agenta remains the sole property of the Customer. Should the Customer wish to transfer their content to another service or website, and upon written request received no less than thirty (30) days in advance, Agenta will act in good faith to supply the Customer with files necessary to complete a migration. Agenta is not responsible for executing any migration or import beyond supplying the necessary files to accomplish a migration, and makes no guarantees that exported data will be compatible with any other product.
Agenta makes no representations as to the marketing of Customer’s products, services or sales. Customer’s obligation to pay fees due to Agenta are due at time of sale of website design, marketing and hosting services and are not contingent upon Customer’s marketing of said website. Customer is responsible for all marketing of Customer’s website.
All prices quoted in a Customer Agreement or Purchase Order are subject to this Agreement. Unless otherwise stated in writing by Agenta, all prices quoted in a Customer Agreement or Purchase Order are exclusive of transportation, insurance, and federal, state, local, excise, value-added, use, sales, property (ad valorem) and similar taxes or duties now in force or hereafter in effect, as applicable. In addition to the prices quoted in a Customer Agreement or Purchase Order or invoiced, Customer agrees to pay all taxes, fees, or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Customer and Agenta. In the event that Agenta is required to collect such taxes, fees, or charges, such amounts will appear as separate items on Agenta’s invoice and will be paid by Customer.
Any applicable initial Services set-up fee is due and billed in-full at the time of the original sale. (Installment payments may be accepted for the set-up fee only if agreed to in writing pursuant to the original invoice.) Monthly hosting and other Services plans, including but not limited to Internet marketing services, are billed and due upon transmission of the invoice. The Customer hereby authorizes Agenta to renew and bill monthly hosting and Internet marketing service fees every 30 days, unless the Customer cancels in writing after the initial hosting and/or Internet marketing services commitments have been paid.
The amount of the initial Services set-up fee (if any) and monthly hosting fees are detailed on the original invoice confirming amounts of sale. Monthly hosting and Internet marketing services amounts may vary depending upon the hosting package selected by Customer.
Agenta reserves the right to change prices at any time including monthly hosting and Internet marketing service amounts and hourly design fees.
Agenta accepts payment via credit card and EFT debit from Customer’s bank account. Upon Customer’s authorization of payment to Agenta via credit card, or EFT debit payment, Customer thereby authorizes all recurring monthly hosting and/or additional Services fees, including but not limited to Internet marketing services, to be charged to the same method of payment, credit card or EFT account for future charges until such authorization is withdrawn by Customer in writing.
The Customer may change payment methods including credit card and EFT debit payments with 30 days’ notice. To change payment methods Customer shall contact Agenta’s billing department at firstname.lastname@example.org. Customer should not email new billing information for security purposes.
The Customer is responsible for maintaining a current, acceptable payment method. Agenta reserves the right to cancel, without notice, any hosting or Internet marketing services if unpaid in full for a period of thirty (30) days.
Agenta charges up to a fee to handle unauthorized credit card disputes in the amount of 5% of the monthly license fee for licensable products or services, or 5% of the total amount due for single purchase products or services. If Agenta does not receive payment in full when due, Agenta may, to the extent permitted by the law of the state of the billing address on file for Customer at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of $25 per month, whichever is greater, on any unpaid balance. Agenta may, to the extent permitted by the law of the state of the billing address on file for Customer at the time account is sent to a collection agency, also charge Customer for any collection agency fees and/or attorney’s fees billed to Agenta for collecting unpaid amounts due and owing from Customer.
If Customer wishes to dispute a charge, Customer must first contact Agenta’s billing department at email@example.com and must allow ten (10) business days for a response. To avoid any dispute about Customer’s attempt to contact Agenta, Customer must send the request in writing to:
Attn: Billing Department, PO Box 22852, Nashville, TN, 37202. Requests may be emailed to firstname.lastname@example.org. If Customer chooses to send request by email, a copy of the request must also be sent by mail as confirmation. If Customer initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Customer. (See Arbitration)
Termination/Cancellation of Services
Agenta, at its sole discretion, may terminate its Services and remove and discard any content, for any reason, including and without limitation, for lack of use, or if Agenta believes Customer has violated the TOS. Agenta may also, at its sole discretion and at any time, discontinue providing Services, or any part thereof, with or without notice. Customer agrees that any termination of access to Agenta’s Services under any provision of this TOS may be affected without prior notice and that Agenta may deactivate or delete Customer’s account and all related information files. Customer agrees that Agenta shall not be liable to Customer or any third-party for any termination of Services. Paid accounts that are terminated will not be refunded. In addition, accounts that become 30-days delinquent may be terminated. Agenta also reserves the right to discontinue work engaged by the Customer at any time, at Agenta’s sole discretion, with appropriate written notification to the Customer. Under no circumstances is a refunded amount to exceed the amount collected by Agenta.
If the Customer cancels a Service or Services before the work is completed or the Services and/or website are live, a cancellation fee is retained per the Cancellation Fee and Refund Policy. Customer agrees that all fees incurred and billed prior to the effective date of cancellation are valid and Customer agrees to pay them. Upon request for cancellation of Services, the Services will be cancelled, including, but not limited to, the removal of any websites. A back-up copy of the website is not maintained by Agenta.
Customer agrees to pay all hosting fees and additional services fees, including, but not limited to, Internet marketing services, owed from the time of sale until the effective date of cancellation, and at a minimum for domain registration, domain privacy, and SSL certificate registration for one year. Transferring a domain name to another provider or non-use of Customer’s hosting account does not constitute termination of the account. Customer must notify Agenta in writing or via email to terminate the Services and avoid further monthly hosting charges. It is Customer’s responsibility to secure confirmation from Agenta that the request for termination has been received and no further hosting fees will be billed.
Requests for cancellation of Services should be sent to the following address: Attn: Billing Department, PO Box 22852, Nashville, TN, 37202.
Requests may be emailed to email@example.com. If Customer chooses to send a request by email, a copy of the request must also be sent by mail as confirmation.
Cancellation Effective Date
Customer may cancel Services at any time. The effective date of cancellation will be thirty (30) days from the date of Agenta’s receipt of written notice to cancel Services. Any monthly fees scheduled to bill after receipt of written notice to cancel, but before the effective date of cancellation, are valid and Customer agrees to pay such amounts. Customer is required to pay Agenta for one-year of domain registration, domain privacy, and SSL certificate registration. This requirement must be satisfied even if Customer elects to cancel Services within the first year of service. Customer’s cancellation of Services does not release Customer from its obligation to pay Agenta for one-year of domain registration, domain privacy, and SSL certificate registration.
If Customer has not paid all fees due for Services, such fees are due in full at the time of cancellation and Customer authorizes Agenta to collect any outstanding fees due, subject to the Cancellation Fee and Refund Policy. Customer acknowledges and agrees that any and all pending billing for design fee installments previously agreed to will not be cancelled.
Default, Cancellation Fee and Refund Policy
In the event that Customer is in breach or default in payment for the Services, Customer shall be responsible for all reasonable costs and expenses incurred by Customer in collection of any sums owing by Customer (including reasonable attorneys’ fees), and Agenta may decline to render further Services to Customer without in any way affecting its rights under this Agreement. If, despite any such breach or default by Customer, Agenta elects to continue to render the Services, rendering the Services shall not constitute a waiver of any breach or default by Customer or in any way affect Agenta’s legal remedies arising from such breach or default.
WEBSITE DESIGN/DEVELOPMENT AND INTERNET MARKETING SERVICES – Refunds of fees paid for development of website or Internet marketing services may be issued entirely at the discretion of Agenta, even if the effective cancellation date preceeds the end date for the current payment period for monthly services. As costs will be incurred upon Agenta immediately from the initial point of sale, NO REFUND will be issued by Agenta if Customer cancels within the first thirty (30) days from the initial sale.
MINIMUM CANCELLATION FEE
Customer agrees that a minimum cancellation fee equal to the cost of one (1) year of domain registration, domain privacy, and SSL certificate registration be retained by Agenta on all cancelled accounts even if no work has been started. The cancellation fee is charged to compensate Agenta for up-front expenses and services rendered.
A 100% cancellation fee will be retained by Agenta and NO REFUND will be issued once work has begun on any enhancements purchased, including, but not limited to, databases, programming, logos, galleries, rollovers, etc. Customer agrees that NO REFUND will be issued by Agenta if Customer cancels within the first thirty (30) days from the enahncement sale. Enhancements or additional services purchased after the initial sale are separate purchases and are IN ADDITION TO and separate from the original sale. If a Customer cancels an enhancement, the original sale is not cancelled.
Customer agrees that there is NO REFUND of monthly hosting, annual domain registration, annual domain privacy, or annual SSL certificate fees or monthly add-on services fees, including but not limited to Internet marketing services, incurred or paid by Customer prior to cancellation date. Customer agrees that all fees incurred and billed prior to cancellation date are valid and Customer agrees to pay. (See Termination).
Customer is advised to copyright and protect all final art against duplication or alteration. Agenta is not responsible for any Customer’s copyrightable material.
Customer acknowledges and agrees that Agenta’s Services may contain proprietary and confidential information that is protected by intellectual and proprietary rights laws. Customer agrees to not reproduce, duplicate, copy, sell, resell or exploit any portion of Agenta’s Services or proprietary or confidential information. Agenta does not provide direct access, through File Transfer Protocol or other means, to any proprietary technology.
Use of Customer Information
From time to time third parties may offer services to Agenta’s Customers. Use of such third-party services will be at Customer’s own risk and subject to the terms and conditions of those third parties. Third-party services, including but not limited to, IDX, SEO, VOW, and other MLS services, are the responsibility of and shall be paid by Customer to its chosen provider. Agenta does not represent or warrant that use or access to any third-party services will be compatible, uninterrupted, error free, without defects or that Customer will be able to access Agenta’s services. Customer also agrees that Agenta is under no obligation to provide Customer with any enhancements, updates, or fixes to make Agenta’s services accessible through any third-party applications.
Contract Service Providers
Agenta may contract with Contract Service Providers to complete a portion, or all, of the Customer’s custom website and/or Services. The Customer agrees not to do business directly with the Contract Service Provider, nor to remit payment to the Contract Service Provider or any Agenta employee directly for services. All payments for services rendered must be made directly to Agenta. Contract Service Providers are required to enter into employment contracts and to follow company policies and procedures. Contract Service providers are provided with only the information needed to complete the design or development portion of the Customer’s Services and/or website and do not have access to Customer’s personal information including payment information.
Disclaimer of Warranties
CUSTOMER’S USE OF AGENTA’S SERVICES IS AT CUSTOMER’S OWN RISK. AGENTA’S SERVICES ARE PROVIDED "AS IS". AGENTA DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW 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 NON-INFRINGEMENT OF PROPRIETARY RIGHTS. AGENTA DISCLAIMS ANY WARRANTIES REGARDING AGENTA’S SERVICES INCLUDING THAT THEY WILL MEET CUSTOMER’S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. AGENTA DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF AGENTA’S SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. AGENTA DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CUSTOMER’S PRODUCTS, SERVICES, SALES, OR WEBSITE. AGENTA DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH AGENTA’S SERVICES, OR LINKS PROVIDED BY AGENTA’S SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY AGENTA OR OBTAINED THROUGH LINKS PROVIDED THROUGH AGENTA’S SERVICES.
CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF AGENTA’S SERVICES ARE DONE AT CUSTOMER’S OWN RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
Limitation of Liability
CUSTOMER UNDERSTANDS AND AGREES THAT AGENTA, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, (EVEN IF HWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE AGENTA’S SERVICES, RELIANCE ON AGENTA’S SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF AGENTA’S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES.) THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH AGENTA’S SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A third-party OR ANY OTHER MATTERS RELATING TO AGENTA’S SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO AGENTA’S SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
Without limiting the foregoing, under no circumstance shall Agenta be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light or air conditioning. Agenta’s full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to Agenta.
Customer waives all tort claims against Agenta, its subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Customer waives any tort claims that arise by act, or omission.
Customer agrees to defend, indemnify and hold harmless Agenta, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees that may arise or result from any content Customer submits, posts, transmits or makes available through Agenta’s Services, from any product sold by Customer, its agents or employees or assigns, from any Services provided or performed or agreed to be performed by Agenta or from Customer’s violation of the TOS or Customer’s violation of any rights of another. Customer further agrees to defend, indemnify and hold harmless Agenta, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising from or related to contracts, representations, agreements, promises, etc., made between Customer and third parties, or arising from or related to Customer’s negligence toward third parties.
Other Operating Systems Conversions
Agenta shall be given first option at compiling the work for operating systems beyond the original use.
Unauthorized Use and Program Licenses
Customer will indemnify Agenta against all claims and expenses arising from uses for which Customer does not have rights to or authority to use. Customer is and will be responsible for payment of any special licensing or royalty fees resulting from the use of graphics programs that require such payments.
Unless otherwise specifically provided, all notices required or permitted by the TOS shall be in writing and in English and may be delivered personally, or may be sent by email or certified mail, return receipt requested, to the address set forth above. If Customer chooses to send request by email, a copy of the request must also be sent by mail as confirmation of the request.
In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of the TOS shall remain valid and enforceable according to its terms.
The TOS agreement shall be governed by the laws of the State of Tennessee. All legal proceedings are to be submitted exclusively to the jurisdiction of the courts in the State of Tennessee, County of Davidson.
Any controversy or claim arising out of or relating to this Agreement or breach thereof shall be settled promptly by arbitration with three (3) arbitrators in Davidson County, Tennessee, in accordance with the then existing rules of the American arbitration Association; provided, however, that the arbitrators shall have no authority to add to, modify, change or disregard any lawful terms of this Agreement. The decision of the arbitrators shall be final and binding, and judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy. Arbitration shall be the exclusive final remedy for any dispute between the parties.
Agenta may investigate any reported violations of this agreement, its policies or any other complaints and take any action it deems appropriate to protect its systems, facilities, Customers, and/or third parties.
Selecting and submitting "accept" on the electronic copy of the TOS, submitting content through the DMP, making payment, or submitting information or documents to Agenta so that Agenta may perform services for the Customer, the same shall constitute an electronic signature.
This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the TOS). Any modifications to this agreement must be in writing and signed by an authorized officer of Agenta. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this TOS.