Last Updated: October 12, 2020

These Terms of Service govern your relationship with Agenta and the use of Agenta’s services and products.

1. Acceptance of these Terms of Service

You affirm and agree that by using or agreeing to purchase and/or use any of Agenta’s products and/or services that you are bound by these Terms. You further understand and agree that Agenta may modify these Terms at any time without notice.

You affirm that you are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and that you will abide by and comply with these Terms.

2. Definitions

Terms of Service. “Terms of Service” refers to this Agreement, including all future modifications and amendments to this Agreement. These Terms of Service are referred to henceforth as the “Terms.”

Agenta. The term “Agenta” refers to that sub-brand of Rudder Creative, LLC, a Tennessee Limited Liability Company, located at 401 Commerce St., #1250, Nashville, TN 37219, which is providing services to you, the Customer. All references to “Agenta” in these Terms of Service, refer to Rudder Creative, LLC, including all of its divisions and subsidiaries, and successors and/or assigns.

Agenta’s Services. The term “Agenta’s Services” includes the following: designing, developing and hosting websites; providing digital and print marketing and advertising services; and providing other technology and development services such as supporting and modifying websites, creating internet-based applications, e-commerce, web-traffic reporting, database development, software development, IDX, marketing consulting, video production, graphic design, and other media services.

Customer. The “Customer” refers to the client contracting for Agenta’s services and signing these Terms of Service. The Customer may be a singular person, or a company. Throughout the remainder of these Terms, the Customer, whether an individual or an entity, will be referred to as “You.”

3. Services and Commitments

Website Construction Process

One of Agenta’s Services is website design and development. If contracted by you to do so, Agenta will design and develop a website using the content you provide. You must submit all required information and content before construction begins on the website. Agenta advises against sending sensitive information via email and may provide you with or suggest an alternate method of delivery for required information. Said alternate method of delivery may be serviced by a third-party. Agenta is not responsible or liable for your use or mis-use of any third-party or Agenta owned services, products, storage, including violation of any associated terms.

When the website is ready for review, a link to the website will be presented to you, and you will have an opportunity to provide feedback. You agree to provide feedback for each review in a timely manner, not to exceed ten (10) business days. Upon Agenta receiving your feedback, Agenta will continue development on the website. When the requested changes are complete, a link to the website will be presented to you for review again.

Agenta will notify you by email when the website is ready to go live, and you will have an opportunity to provide approval. If Agenta does not receive a response from you within ten (10) business days, Agenta reserves the right to launch your website on your primary domain with or without your approval. After you approve the website, Agenta will launch the website on your primary domain. Agenta will make reasonable efforts to minimize any interruption or downtime for your domain. Agenta does not guarantee that no interruption to your domain and associated services will occur. Agenta is not liable in any way for any negative effects caused by any interruption or downtime for any domain, including any email services connected to the domain. You will be notified by email when the website is live.

Agenta may review text content before or after the website goes live to correct any possible errors. Agenta is not liable for the accuracy of information or for typing or spelling errors in any of the content published on the website. Agenta will provide progress reports by email regarding the development of the website. As needed, Agenta may meet with you, at a time agreed upon by both parties, via electronic means to provide progress reports or discuss your feedback. Agenta will inform you by email upon discovery of any event or problem that may significantly delay the development of the website. After a website goes live, Agenta will not provide progress reports, but will supply available data reports upon request.

IDX

For applicable products, Agenta may be required to submit information about you to relevant MLS board(s) for the purpose of acquiring a data license. By purchasing and/or using Agenta’s Services, thus accepting these Terms, you acknowledge that personal information, including but not limited to, your name, address, telephone number(s), real estate license number and other personal information, may be submitted to applicable MLS Board(s) without your further consent.

By purchasing and/or using Agenta’s Services, thus accepting these Terms, you acknowledge that all information you submit 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, you acknowledge that you must receive an advanced approval from the MLS board(s). Agenta is not and will not be held responsible for any data license request declined by the MLS board(s). If the data license request is denied, Agenta will not provide a refund of any kind. This includes any setup, hosting, domain registration, design, development, consulting or other costs that may have accrued.

Agenta is not responsible for any sudden discontinuation, deprecation, down-time, or other interference of MLS data. You acknowledge and understand 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.

By purchasing and/or using Agenta’s Services, thus accepting these Terms, you acknowledge that Agenta is not and will not be held responsible for any violation of any professional or legal requirements enforced by MLS(s), licensing board(s) or other governing entities. You understand and agree that you are solely responsible for ensuring compliance with relevant MLS(s), licensing board(s) or other governing entities, and that Agenta is not responsible or liable for any fees, fines or other financial or professional penalties assessed by any MLS(s), licensing board(s) or other governing entity.

Changes/Revisions

When Agenta delivers the website for review, you will have the opportunity to make up to two (2) rounds of revisions/changes for all template-based products. Additional revisions/changes will be billed to you at Agenta’s standard hourly rate of $150 per hour. If you request additional revisions/changes, you agree to pay all fees for such revisions/changes. Agenta is not obligated to complete any revisions/changes beyond the two (2) revisions/changes allotted. If Agenta does not agree to your requests for additional revisions/changes, you are still obligated to pay all fees for the originally purchased services or products. The timeline in which all revision/change requests will be handled is at Agenta’s exclusive discretion, unless a specific timeline is agreed to in writing.

Approval of Deliverables

Agenta will make a good faith effort to test all deliverables for proper display and functionality and make all necessary corrections as a result of such testing. Ultimately, you are responsible for testing and approving the functionality of all purchased services and products upon Agenta’s notification that the work has been completed and requested for approval. Upon your approval of the deliverables, you agree and acknowledge that all services rendered and products provided by Agenta have been tested and approved by you.

Prior to a website being taken live, you will receive a missing information notification if content is incomplete. If you do not respond to Agenta’s requests for missing or incomplete information, or Agenta’s notification of completion and request for final approval within ten (10) business days, Agenta will assume final approval and will take all internet-based products live “as-is.”

One person will serve as the designated party who will send, receive, and accept all deliverables and communications between Agenta and yourself. If you designate a representative, Agenta will only communicate with the representative for approvals, responses, deliverables, or materials and will have no obligation to communicate with any other person. You have the right to change the designated person upon two (2) days written notice to Agenta.

Agenta will ensure proper display for all website products in modern browsers (Chrome, Safari, FireFox, and Edge) and mobile browsers (​iPhone/iPad​ [iOS 10+]​ and Android​[4.x+])​. Agenta cannot guarantee proper functionality or display on outdated browsers or devices. Agenta does not support any browser or software application not supported by its developer.

Delivery Timelines

Delivery times are not guaranteed and are dependent upon a range of factors, including customer response times. You understand, agree, and acknowledge that Agenta does not guarantee a time frame for completion of ANY website. A website cannot be completed without all of the following: submission of all requested content, design approvals, and participation from you. If you continue to submit additional content throughout the design process, the design time frame is increased. If your website requires custom programming, functionality, e-commerce, IDX, or the use of a database, the overall development time will be extended.

You understand and agree to pay all fees incurred, including but not limited to, set-up, enhancement, and monthly hosting charges that begin accruing from date of sale. You understand and agree said fees are still due if Agenta is unable to start or complete the custom website design because of your failure to submit all requested content to Agenta.

Ongoing Update Services

Agenta offers “Ongoing Update Services” for some website products. If your subscription plan includes “Ongoing Update Services,” Agenta will provide the included development services, management services and technical support to maintain and/or update your website at no additional cost. “Ongoing Update Services” include content-related updates, changes to website imagery and text, new pages, new sections, or the addition of features as included with your subscription plan. This service does NOT include content creation or curation, custom feature development, custom landing pages, paid advertising support, or custom application development, such as calculators and other special features. Custom application development can be priced upon request.

Customer-Made Changes

Agenta is not responsible for any changes you make to your website. Agenta is not responsible if you “break” your website. All time required by Agenta to repair changes made by you will be billed to you at Agenta’s standard hourly rate of $150 per hour.

Post-Delivery Enhancements

Any and all enhancements and/or modifications made to the purchased services or products must be performed by Agenta. Agenta will not allow any enhancements and/or modifications to be performed by a third-party. Any and all enhancements and/or modifications will be made at Agenta’s exclusive discretion.

Technical Support and Customer Service

Agenta’s technical support and customer service department can be contacted at support@agentawebsites.com. Please email Agenta with any complaints, concerns or problems with hosting or functionality. Please note that Agenta’s technical support services may include screen share sessions in order to provide the best possible customer service. You acknowledge and understand that Agenta does not guarantee that technical support or customer service will meet your requirements or be free of error.

For products that do not include Ongoing Update Services, Agenta will provide you with two (2) hours of technical support and assistance to maintain and update the purchased services or products for a period of thirty (30) days after going live. If you require more than two (2) hours of technical support and assistance, you agree to pay Agenta at its standard hourly rate of $150 per hour.

Use and Storage

There are limits to server resources allotted for each customer. Said limits may change without notice from Agenta. Further, Agenta may, without notice, increase the hosting (or other service fees) charged to you in the event your use of a product exceeds normal usage. For example, if your website suddenly receives traffic levels that cause Agenta to incur costs beyond that which has been allotted as part of your purchase plan, Agenta will increase the hosting/storage fees.

Agenta may periodically create backups of the content and websites stored on its servers. Agenta cannot and will not guarantee that data loss will not occur. By using Agenta’s products and/or services, and therefore agreeing to these Terms, you understand and acknowledge that you are solely responsible for your personal data and all content published to the website. Agenta is not responsible for and will not be held liable for data loss of any kind for any reason.

Domain Name Purchase and Transfer

Domain names purchased by Agenta are the property of Agenta until you have paid all fees associated with your account, including one (1) full year of domain name registration, domain privacy, and SSL certificate registration.

When all fees owed to Agenta have been paid in full, including one (1) year of registration, domain privacy, and SSL certificate registration, ownership of the domain name may be transferred to you upon written request. Agenta will provide the necessary authorization codes within ten (10) business days of your written transfer request.

The act of transferring a domain name only includes providing you with transfer authorization codes. Agenta will not execute the transfer on your behalf. Agenta is not responsible for any costs you incur by the receiving registrar.

Upon transfer of the domain to another service provider, you agree that Agenta has met its obligation in full to you. You further agree that Agenta is released of all past and future obligations to you. 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 becoming unavailable for purchase after the initial sale of Agenta’s Services. Domain names you already own will remain your property, and renewal of the domain name is your responsibility. The renewal of any domain name transferred to you is your responsibility. In the event a domain name was initially purchased by Agenta for or on your behalf, Agenta will maintain renewal of the domain as included in your customer engagement agreement or upon receipt of associated fees required for the renewal. All domain renewals are contingent upon the continued availability of the domain. Agenta is not responsible or liable for the expiration of any domain name, however selected or purchased, or any harm said expiration causes.

If you purchase your domain name prior to engaging Agenta’s services, Agenta requires DIRECT access to your registrar account in order to provide purchased products and/or services, including the launch of your website. Agenta does not accept DELEGATE access.

Search Engine Optimization & Search Rank

Agenta does not provide ongoing SEO or SEM services as part of any basic website package. Agenta may provide ongoing SEO or SEM services only under a separate purchase order.

Agenta makes no guarantees regarding the search rank for any website at any time. Agenta makes reasonable efforts to preserve the search rank achieved by legacy websites prior to contracting with Agenta, but is not responsible for and cannot be held liable in any way for any detrimental effects caused by any decreased search rank of a website.

Third-Party Integrations & Services

Agenta may integrate your website with third-party tools when third-party integrations are included in the purchased product or service, or purchased under a separate service agreement. Use of such third-party services will be at your 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 hired at your sole discretion and shall be paid by you.

Agenta does not guarantee the compatibility of its products with any third-party products or services. You understand and agree that Agenta is not required to enhance, modify, update, or otherwise change its products and services in any way to accomodate an integration with any third-party product or service.

Agenta makes reasonable efforts to ensure that third-party integrations work as intended, but does not guarantee that any integration will operate error-free. Agenta may, at its sole discretion, provide technical support or consulting related to third-party products or services as a benefit to you. Agenta is not required to provide technical support or consulting related to third-party products or service, and may refuse any request to provide such support at any time.

4. Billing, Refunds and Cancellation

Billing Policy

All prices quoted in writing are subject to these Terms. All prices quoted in writing are exclusive of transportation, insurance, and taxes, including but not limited to 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 any price quoted in writing, you agree to pay all taxes, fees, or charges of any nature whatsoever imposed by any governmental or professional authority on, or measured by, the transaction between you 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 you.

Unless otherwise stated in writing by Agenta, payment for non-subscription services is due in-full before Agenta begins work or activates the associated product or service.

The first payment for subscription services is due before Agenta begins work or activates the associated product or service. Monthly billing for all subscription services recurs, without reauthorization, on or around the same day of each month. Annual billing for all subscription services recurs, without reauthorization, on or around the same day of each year. Any applicable set-up fee is due and billed in full at the time of the original sale.

You may change the payment period for subscription services by written request to billing@agentawebsites.com. The payment period for subscription services can be changed by request on any regularly scheduled renewal date only. Agenta does not issue pro-rata refunds for partial periods. Agenta does not allow split payments for monthly and annual subscription services.

Monthly and annual subscription service plans are billed and due upon transmission of the invoice. You hereby authorize Agenta to renew and bill subscription service fees on the applicable date, beginning on the date of sale, regardless of the date the related service is made live on the internet.

You understand that Agenta has a NO REFUND policy for fees associated with on-demand or subscription services, including but not limited to hosting, domain regisgtration and privacy, SSL certificate registration fees, subscription plans, design and development fees, and other marketing service fees incurred or paid prior to the effective date of cancellation. You agree that all fees incurred and billed prior to the cancellation date are valid and you agree to pay those fees.

Agenta reserves the right to change prices for any product or service at any time, including hosting, domain regisgtration and privacy, SSL certificate registration fees, subscription plans, design and development fees, and other marketing service fees.

Agenta accepts payment via credit or debit card. Agent does not accept cash or check payments. Auto-draft payments via credit or debit card accounts are required for all subscription services. Agenta will not invoice for subscription services. By creating an Agenta subscription account and adding a payment method, you hereby authorize all recurring monthly or annual services fees to be charged to the same method of payment (or any method of payment we have on file) for future charges until such authorization is withdrawn in writing. Agenta will also auto-draft all on-demand services, including one-time and subscription services, using the payment methods on file prior to beginning work.

You may change payment methods using the online billing system at https://billing.agentawebsites.com, or by contacting Agenta’s billing department at billing@agentawebsites.com. For security purposes, do not email billing information.

You are responsible for maintaining a current and acceptable payment method on file with Agenta. If a subscription payment fails, the payment will be automatically retried. A late fee in the amount of $25.00 will be applied to the account for any subscription payment that remains delinquent longer than 15 days from the original due date. Agenta reserves the right to cancel or deactivate, without notice, any products or services if not paid in full for a period of 30 days. The associated product or service can be reactivated for a reactivation fee in the amount of $100.00 plus any outstanding balance on the account.

Billing Disputes

Agenta charges 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, 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 at the time the account is sent to a collection agency, also charge you for any collection agency fees and/or attorney’s fees billed to Agenta for collecting unpaid amounts due and owed.

To dispute a charge, contact Agenta’s billing department at billing@agentawebsites.com or send to Agenta, Attn: Billing Department, PO Box 22852, Nashville, TN, 37202. All disputes will be addressed within ten (10) business days of receipt of the written dispute.

All credit card disputes at the discretion of the credit card company can be made through the arbitration process and the decision of the credit card company shall be binding upon you (See Arbitration Agreement).

Termination/Cancellation of Services/Products

Agenta, at its sole discretion, may terminate its services and/or products for any reason at any time. Accounts that become over 30 days delinquent may be terminated. If Agenta terminates its services and/or products, we will notify you and retain any customer owned data for 30 days. If after 30 days, said data is not claimed, Agenta reserves the right to delete that customer owned data. You agree that Agenta is not liable to you or any third-party for termination of any services and/or products. Agenta also reserves the right to discontinue work at any time, at Agenta’s sole discretion, with appropriate written notification to you.

If you cancel a service before work is completed or the purchased services are live, a cancellation fee may be charged. You agree that all fees incurred and billed prior to the effective date of cancellation are valid and that you will pay them. Upon receipt of request for cancellation, the services will be cancelled, including, but not limited to, the removal of any websites. A back-up copy of any website or customer data will not be maintained by Agenta after the effective date of cancellation.

You agree to pay all fees associated with the purchased product or service owed from the time of sale until the effective date of cancellation. The effective date of cancellation will be thirty (30) days from the date of Agenta’s receipt of written notice to cancel. Domain registration, domain privacy, and SSL certificate registration are billed in annual increments regardless of cancellation. This requirement must be satisfied even if you elect to cancel services within the first year of service. Transferring a domain name to another provider or non-use of your hosting account does not constitute termination of the account. You must notify Agenta in writing to terminate the services and/or products to avoid further charges. It is your responsibility to secure confirmation from Agenta that the request for termination has been received and that no further product or service fees will be billed.

For payment purposes, the effective date of cancellation is thirty (30) days after written receipt of notice. If the renewal date for any subscription product or service occurs during the thirty (30) day period after written receipt of cancelation, you are responsible for paying any scheduled subscription fees that occur during this period.

Once work has begun for any product or service, we do not guarantee a refund of payments made to date, and we may charge a cancellation fee for termination.

Requests for Cancellation of Services should be sent to billing@agentawebsites.com or Agenta, Attn: Billing Department, PO Box 22852, Nashville, TN, 37202.

Default

In the event that you are in breach or default for payment of purchased products or services, you shall be responsible for all costs and expenses incurred in collection of any sums owed to Agenta by you (including attorneys’ fees), and Agenta may decline to render further services to you without in any way affecting its rights under these Terms. If, despite any such breach or default by you, Agenta elects to continue rendering Agenta’s Services, rendering the services shall not constitute a waiver of any breach or default by you or in any way affect Agenta’s legal remedies arising from such breach or default.

Refund Policy

All subscription services are paid in advance. Agenta will not refund any pro-rata portion for the remainder of the subscription service.

Agenta will not issue refunds for non-subscription products and services that have a multiple payment structure. Agenta reserves the right to charge a 50% fee of the remainder owed. This does not apply to payments made to Agenta for distribution as ad spend.

Domain, domain privacy and SSL certificate sales are final. No refunds. Under no circumstance is a refunded amount to exceed the amount collected by Agenta.

5. Intellectual Property

Customer Owned Intellectual Property

Content you provide to Agenta (“Customer Owned Content”), including text, imagery, video or other media, logos, blog content, and lead data, will remain as your intellectual property. Ownership of all logo designs and assets is transferable to you upon Agenta’s receipt of full payment for design services rendered.

Content created, supplied by, or otherwise owned by Agenta remains the sole property of Agenta and cannot be used by you, before or after the effective date of cancellation without the express written permission of Agenta. This includes any text, image, or video content provided to you as part of the purchased product or service, including but not limited to stock imagery and videography, market data, analytics tools, advertisements, and other proprietary content or applications.

Should you wish, at any time, to transfer Customer Owned Content to another service or website, you are solely responsible for the transference of the content. Agenta is not required to return content that you provide for any reason, including for the purposes of migration. Agenta cannot and does not guarantee the successful migration of your content from Agenta’s servers to a third-party service or website. Agenta is not responsible for executing any migration and makes no guarantees that exported data will be compatible with any other product. Agenta does not guarantee the transferability of any Customer Owned Content.

At any time up to thirty (30) days after the effective date of cancellation, you may request that Agenta provide an export of available data, such as lead data and website analytics. A written request can be sent to support@agentawebsites.com. Agenta will act in good faith to return Customer Owned Content to you within thirty (30) days of the request. Agenta uses third-party products and services to provide its own products and services. Agenta cannot guarantee that no customer content or data loss will occur, nor is Agenta liable for the destruction or loss of Customer Owned Content or data. It is your responsibility to maintain appropriate copies and or back-ups of all Customer Owned Content and data.

Additionally, Agenta recommends that you take necessary precautions to protect your content and artwork against duplication or alteration. Agenta is not responsible for protecting your intellectual property, nor is it liable for any intellectual property infringement that may occur.

For the avoidance of doubt, Agenta will not transfer any content, including Customer Owned Content, if an account is not paid in-full.

Agenta is not responsible for the protection of content on your website from third parties.

Agenta Owned Intellectual Property

Content provided by Agenta remains the intellectual property of Agenta, including but not limited to text, imagery, video or other media used in the construction of websites. All content provided 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 your account balance is paid in full, including all subscription fees, domain and hosting fees, cancellation fees, or other applicable taxes or fees. Advertising assets, including but not limited to designs, landing pages, strategy documents and other data, are non-transferrable and remain the property of Agenta.

You acknowledge and agree that Agenta’s products and services may contain confidential information that is protected by intellectual property rights laws. You agree to not reproduce, duplicate, copy, sell, resell or exploit any portion of that protected information. Agenta does not provide direct access, through file transfer protocol (FTP) or other means, to any proprietary technology. For the avoidance of doubt, Agenta will not ever provide access to Agenta’s servers or proprietary technology to you or any third party.

Intellectual Property Infringement and Indemnification

You may not use Agenta’s network or services to download, publish, distribute, copy or use in any manner any text, music, software, art, image, or other legally protected work unless you have been expressly authorized by the owner of the intellectual property to copy or use the work in that manner; or you are otherwise permitted by established intellectual property law to copy or use the work in that manner.

It is your responsibility to ensure that you are complying with all applicable intellectual property laws when including third-party material on your website. Agenta is not liable for any intellectual property infringement committed by you or your agent(s) during or after Agenta’s term of service.

You guarantee that you have the legal right to all elements of text, music, software, art, image, or other legally protected work or content that you provide to Agenta. You 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 legally protected material supplied to Agenta. You agree to indemnify Agenta for any third-party claims brought against Agenta due to your use of or you providing Agenta with legally protected works to which you have no legal rights. Agenta may terminate, at its sole discretion, its services to customers who are infringers of others’ intellectual property rights.

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.

6. Privacy & Customer Provided Information

Privacy Policy

Personal data and certain other information about Agenta’s customers are subject to Agenta’s Privacy Policy. See the Privacy Policy at https://agentawebsites.com/privacy. By using Agenta’s services, you also agree to the most current version of Agenta’s Privacy Policy.

Call Monitoring and Recording

As part of Agenta’s commitment to providing the best possible service, Agenta may monitor and record telephone and/or video calls to and from Agenta. Agenta also may archive recorded voicemail messages and/or video recordings. These calls and/or meetings may include the transfer of confidential client information. Agenta records telephone and/or video calls for training and quality assurance purposes and to ensure accurate records.

Customer-Provided Information

You acknowledge and agree that any information or ideas you submit to Agenta may be used by Agenta, without compensation to you, for any purpose whatsoever, including but not limited to, enhancing its services, developing websites, databases, e-commerce and developing, manufacturing and marketing other products. This provision does not apply to Customer Owned Content or personal information that is subject to Agenta’s Privacy Policy.

You hereby give permission to Agenta to use all design samples, branding, website links, advertisements, or other creative assets produced by Agenta for you for the purposes of Agenta’s own marketing and advertising initiatives, including but not limited to use in Agenta’s online portfolio, distribution through social media, or for sales purposes.

7. Illegal and Unacceptable Practices

As Agenta strives to offer the very best services and products, 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. You acknowledge and agree that Agenta has sole discretion over decisions regarding compliance with these guidelines and policies. Unacceptable practices include, but are not limited to, publishing, transmitting or storing on or via Agenta’s network and equipment any content or links to any of the following:

• Adult or pornographic material including, but not limited to, sexually explicit or suggestive material, or any material depicting, fostering, promoting, or relating in any manner to child pornography or non-consensual sex acts;
• 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;
• Content that is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
• Bulk emailing tools;
• Distribution of internet viruses or other harmful or destructive activities;
• Gambling, gaming, lotteries, or similar activities;
• Harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, hateful, racial, chauvinistic, ethnically offensive or otherwise objectionable content or language;
• Language that is invasive of another’s privacy;
• Defamatory, hateful, or revenge-based 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 any unauthorized use of materials or content that infringes on third party intellectual property rights;
• 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 reseller 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; and
• 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. You acknowledge and agree that all information, data, text, software, music, sound, photographs, video, messages and other material on your website is your sole responsibility. You are fully responsible for all website content and agree to hold Agenta harmless in the event of legal actions brought by third parties against you or Agenta for your business practices. Agenta retains the right to terminate any accounts that are in violation of the letter or spirit of these Terms. At its sole discretion and at any time, Agenta may discontinue providing services and/or products, with or without notice. If your account is terminated by Agenta for a violation of these Terms, you are not eligible for a refund of any kind.

As an Agenta customer you may have access to editing tools for your website. You 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. You understand and agree that you are solely responsible for any effect of the content published to your website, including negative effects caused by inaccurate information. You acknowledge that Agenta may access, preserve, and disclose your account information and content if required by law to do so or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce these Terms, provide customer service or protect the rights, property, or safety of Agenta and the public.

Domain Blacklisting

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 Agenta’s Services. You agree that if the Agenta IP numbers assigned to your account are listed on an abuse database (i.e., Spamhaus), you will be in violation of these Terms, and Agenta may take reasonable action to protect its IP numbers, including suspension and/or termination of Agenta’s Services to you, regardless of whether the IP numbers were listed as a result of your actions.

Email Subscriber Lists

Agenta may provide tools that feature email subscriber lists. Agenta does not validate email subscriber lists. You agree to observe all CAN SPAM laws, and Agenta reserves the right to terminate Agenta’s Services to you if you do not comply with those applicable laws otherwise. Agenta is not responsible or liable for any violation of CAN SPAM or other applicable laws regarding the distribution of email.

8. Additional Provisions

Results Representations

Agenta works to provide products and services that help its customers. Agenta makes no guarantee about results from any services or products that are provided to you. Your obligation to pay the agreed upon fees to Agenta become due at the time of the sale of Agenta’s Services and are not contingent upon the results of Agenta’s Services.

Electronic Delivery Policy

Agenta is an internet-related business and communicates with its customers electronically. You consent to receive any notices, progress reports, agreements, disclosures, or other communications from Agenta electronically. You agree that Agenta may communicate with you via the email address you provide at the time of sale, or via a new email address account you establish through Agenta. You agree to check the designated email address(es) regularly for communications. All communication from Agenta is effective at the time it is sent by Agenta, regardless of whether you read or receive the communication.

Vulnerability Testing

You may not attempt to probe, scan, penetrate, or test the vulnerability of an 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

These Terms apply to your use of any bulletin board, chat group or other forum hosted by Agenta. You may not use any forum provided by Agenta for commercial or advertising purposes. All content posted to a forum provided by Agenta is subject to the Illegal and Unacceptable practices outlined in these Terms. Agenta reserves the right to revoke your access to any forum at any time for any reason. Agenta is not responsible for and will not be held liable in any way for any content you post to any forum provided by Agenta.

Contract Service Providers

Agenta may contract with contract service providers to complete a portion, or all, of your purchased products or services. You agree not to do business directly with the contract service provider, nor to remit payment for services to the contract service provider or any Agenta employee directly. All payments for services rendered must be made directly to Agenta. Contract service providers are required to enter into employment contracts with Agenta and to follow company policies and procedures. Further, they are provided with only the information needed to complete the scope of contracted work, and do not have access to your payment information.

9. Arbitration & Jurisdiction

Any controversy or claim arising out of or relating to these Terms or breach thereof shall be settled promptly by final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Davidson County, Tennessee.

Either party may bring a lawsuit in the federal or state courts of Tennessee solely for injunctive relief to stop unauthorized infringement of intellectual property rights without first engaging in the informal dispute notice process described above. You consent to venue and personal jurisdiction there.

You may only resolve disputes with Agenta on an individual basis and may not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

These Terms will be governed by the laws of the State of Tennessee.

10. Disclaimers and Limitation of Liability

AGENTA’S SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THESE TERMS. AGENTA, NOR ITS AFFILIATES, SUPPLIERS, AND STRATEGIC PARTNERS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.

TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS, AGENTA WILL NOT BE LIABLE UNDER THESE TERMS FOR (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF AGENTA KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

AGENTA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF $8,000 OR THE AMOUNT PAID BY YOU FOR THE USE OF THE SERVICES AND/OR PRODUCTS DURING THE TWO YEARS PRIOR TO THE EVENT GIVING RISE TO ANY LIABILITY.

AGENTA DOES NOT MAKE ANY REPRESENTATION THAT YOUR USE OF AGENTA’S SERVICES WILL COMPLY WITH ANY LEGAL REQUIREMENTS IN A PARTICULAR JURISDICTION. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER USE OF THE SERVICES AND/OR PRODUCTS IS IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF ANY JURISDICTION TO WHICH THEY ARE SUBJECT.

11. Indemnification

You agree 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 customer provided content or third-party content transmitted through Agenta’s Services, from any product sold by you, your agents or employees or assigns, from any services and/products provided or performed or agreed to be performed by Agenta or from your violation of these Terms, or your violation of any rights of another. You further agree 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 you and third parties, or arising from or related to your negligence toward third parties.

12. Miscellaneous

Modification of Terms

Agenta may revise these Terms from time to time, and the most current version will be posted on the Agenta website. If a revision, in Agenta’s sole discretion, is material, Agenta will notify you (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Agenta’s terms page, and you are responsible for checking such postings regularly. By continuing to access or use Agenta’s Services after revisions become effective, you agree to be bound by the revised Terms.

Notice

Unless otherwise specifically provided, all notices required or permitted by these Terms shall be in writing and in English and may be delivered via email to support@agentawebsites.com, or may be sent by mail, return receipt requested, to Agenta, Attn: Billing Department, PO Box 22852, Nashville, TN, 37202.

Waiver

A waiver of any default is not a waiver of any subsequent default.

Severability

In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of these Terms shall remain valid and enforceable according to its terms.

Electronic Signatures

Signatures sent by electronic means (facsimile, scanned and sent via email, or signed by electronic signature) shall be deemed original signatures.

No Agency

Your use of Agenta’s Services in no way implies a legal partnership or agency relationship with Agenta.

Force Majeure

Agenta will not be liable for inadequate performance to the extent caused by a condition that was beyond Agenta’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).

Entire Agreement

These Terms represent an agreement that constitutes the entire understanding and contract between the parties (you and Agenta) and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of the Terms). All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of these Terms.