1.1 These Terms and Conditions, together with our Acceptable Use Policy ("AUP"), which is incorporated by reference, (collectively, the "Agreement"), set forth how 500 Rockets Marketing will provide the Services ("Services") to you.
1.2 The Agreement may be updated in the future and you will be notified in writing of any material changes. Your continued use of the Services will signify your acceptance of the changes and if you do not agree with them you may cancel the Agreement pursuant to the Termination clause below.
2.1: To create an account with 500 Rockets Marketing to enable you to order various services ("Services") from the 500 Rockets Marketing website ("Orders"), you provided some personal information of the sole owner and only Authorized User of the account ("Customer"). If you directed a person to create the account on your behalf, you represent and warrant that person has the authority to bind you, the Customer, to this Agreement.
2.2: You are responsible for controlling access to your account and for maintaining the security and confidentiality of the account and the information contained within the account.
3.1: The term of this Agreement is one month starting from the date of Customer sign up and payment of Fees ("Initial Term") and will automatically renew for successive one month periods (each a "Renewal Term") provided the advance payment for the Fees for each Renewal Term is made on time and provided that the Agreement has not been terminated in accordance with this Agreement.
3.2: This Agreement may be terminated by either party at any time for any reason with 30 days' prior written notice to the other party. As stated in Fees below, we may terminate the Agreement immediately if the payment for Fees is not on time.
3.3: Upon termination of the Agreement the Services will no longer be provided and the Customer Content may not be available. It is the Customer's responsibility to back up and download the Customer Content prior to termination of the Agreement.
4.1: The Services may only be used for their intended purposes as set forth in the Agreement. You agree that we may use third parties to provide parts of the Services and you agree to provide assistance, as reasonably required, for us to provide the Services.
4.2: We will make all reasonable efforts to protect and back up your data but there is no guarantee that your data will not be lost or compromised. You are responsible for maintaining a separate back up of your data.
4.3: Sometime in the future we may stop offering some of the options available in our Services offerings as they reach "End of Life". We may attempt to offer replacement options for End of Life Services but not in all cases and ending and replacing or not replacing an End of Life Service is not a breach of this Agreement. We will provide 90 days written notice to you before we discontinue any End of Life Services.
4.4: Some options for Services may be offered in beta form ("Beta") for testing and evaluation. You have the option to use such Beta Services but the Beta Services are provided to you on an as-is basis with the understanding that Beta Services are offered for the purpose of evaluation, testing and correcting faults. You agree that you will not have any intellectual property rights in the Beta Services or any products that result from Beta Services that you use and evaluate and then provide feedback on performance and suggestions for improvements to us.
5.1 Service Availability:
500 Rockets Marketing will provide service availability of 95.00% on a monthly basis calculated by dividing the total number of minutes Service is available in a month by the total number of minutes in a calendar month less Approved Downtime.
5.2 Service Availability Credits ("Credit"):
Customer will receive a Credit of 5% of Customer's monthly Fee for each hour where we fail to meet 95.00% Service Availability ("Credit Event"). Customer must request a Credit in writing to Support within 30 days of the Credit Event. Credits are forfeited at expiration or termination of the Agreement, may not exceed the Fee paid in the month, cannot be aggregated and will not be paid in cash.
5.3 Excused Downtime:
"Excused Downtime" means scheduled Service outages or Force Majeure events, downtime caused by (a.) an action of the Customer that violates the Agreement, (b.) Customer created code or (c.) Customer changes to the site, scheduled service maintenance times or emergency maintenance to address a security issue.
6.1: We will provide support as described under the support tab on our website Https://500rockets.io ("Support"). You can request Support by calling 628-333-3450, by sending an email to firstname.lastname@example.org or by creating a support request ticket inside your account.
6.2: If you provide feedback to us during a Support request or for any other reason, you agree that we own all of the intellectual property rights to any changes to existing products or any new products resulting from your feedback.
7.1: The charges for the various options for Services are set out under the fee schedule tab on our website ("Fees"). Fees are due in full in advance and payable in US dollars using the credit or debit card that was used to setup the account. You are responsible for keeping the card current and capable of making payment.
7.2: When you purchase one of the monthly subscription options for Services, you are buying a certain number of coding credits per month (depending on the subscription level) where each credit equals one hour of coding. Any coding credits that are not used during the month will roll over and accumulate so they can be used in later months. The coding credits do not expire as long as your account is active and payments for Fees are current.
7.3: If you do not pay on time we may suspend Services and terminate the Agreement.
7.4: You agree to pay any applicable taxes that we are required by law to add to the Fees unless you have provided a valid tax exemption certificate to us.
8.1: 500 Rockets Marketing will handle the migration of the data from your current website ("Customer Content") to our environment as part of your account setup fee. We will use best efforts to transfer your data accurately and our process is to move your Customer Content from its current environment to a staging environment at 500 Rockets Marketing where the data will be verified and checked by you and corrected if necessary and then upon your approval the data is moved to a final production environment at 500 Rockets Marketing.
9.1: 500 Rockets Marketing does not claim any ownership rights in your Customer Content that you provide to us in connection with the Services. To enable us to provide the Services, you agree to grant 500 Rockets Marketing, its sub contractors and affiliates a non-exclusive, royalty-free world-wide license to use your Customer Content but only as necessary to provide the Services.
9.2: 500 Rockets Marketing owns or is licensed to use all of the intellectual property rights to the systems and hardware and software products that are used to provide the Services and grants no license or rights to such intellectual property rights to Customer except as required to use the Services and then only for the term of the Agreement.
10.1: "Confidential Information" means any information disclosed by us to you, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that we identify as confidential or proprietary or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. You agree to: (a) hold the Confidential Information in confidence; (b) restrict disclosure of such Confidential Information to those employees or agents with a need to know such information and who are bound (e.g., as a condition to their employment or agency) by obligations respecting the protection of Confidential Information (c) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein. You agree that any material breach of this Section will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of this section in addition to any other relief to which we may be entitled. You agree to promptly inform us of any improper disclosure of our Confidential Information.
11.1: Each party represents and warrants that it has the power, authority and legal right to enter into this Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference.
11.2: Customer represents and warrants that it owns or has a license for all intellectual property and other proprietary rights necessary to make the license grants to us contained herein. At our request, Customer will provide us evidence of this ownership or license. Customer represents and warrants that our use of the Customer Content in accordance with such license will not infringe the intellectual property or other proprietary rights of any individual or entity. Customer also represents and warrants that all information it provides to us is complete, accurate and up-to-date.
11.3: Customer represents and warrants that if it is a natural person, that it is over eighteen years of age.
12.1: THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. 500 ROCKETS MARKETING AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE SITE AT ANY TIME. 500 ROCKETS MARKETING AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN AS IS EXPRESSLY SET OUT IN THE SERVICE LEVEL TERMS CLAUSE ABOVE, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. 500 ROCKETS MARKETING AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13.1: Customer access to and use of our Services is solely at your own risk. We do not warrant that our Services will meet Customer requirements, and provide no guarantee of fitness for any particular purpose. We disclaim any and all warranties, either express or implied, not specifically described herein.
13.2: Customer compensation for non-delivery of service will be limited to that defined in the Service Level Terms clause of this document. Customer agrees the total amount of any liability or compensation in any event and under any and all claims will not exceed the total fees Customer has actually paid to us to receive the service during the one month period giving rise to such claim.
13.3: We are not responsible for any demands, liabilities, losses, costs, and claims, including lawyers' fees, asserted against us or against the Customer as a result of any Service or product published or sold through our Service, and Customer agrees to defend, indemnify, and hold 500 Rockets Marketing harmless from any and all such claims.
13.4: Claims for which we are not responsible include, but are not limited to, injury to persons or property arising out of Services or products published or sold through 500 Rockets Marketing service, material infringing on the rights of a third party, copyright or trademark infringement claims, and claims based on the unlawful publication of any material.
13.5: Customer assumes full responsibility and liability for all material published on the Internet through the use of our Services.
13.6: Customer agrees to fully indemnify, hold harmless, and defend 500 Rockets Marketing and 500 Rockets Marketing owners, officers, employees, agents and representatives in any legal action arising out of Customer’s use of our Services.
13.7: Customer agrees that 500 Rockets Marketing will not be liable for any damages or consequences resulting from breaches of security or denial of service attacks, delayed delivery or non-delivery of email, harm to your computer system, loss of any files, data, email, or other information, or other harm arising from Customer’s use of 500 Rockets Marketing Services, for any reason whatsoever.
13.8: While every reasonable effort is made to ensure privacy of customers' files, data, and email, we cannot guarantee privacy.
13.9: TO THE MAXIMUM EXTENT PERMITTED BY LAW, 500 ROCKETS MARKETING AND ITS OWNERS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES WILL NOT BE LIABLE FOR ANY LOSSES, COSTS, CLAIMS, OR FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF INCOME OR PROFIT, LOSS OF DATA, GOODWILL, REPUTATION, OR OTHER TANGIBLE OR INTANGIBLE LOSS, ARISING FROM:
i. CUSTOMER ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES;
ii. NON-DELIVERY OR INTERRUPTION OF THE SERVICES FOR ANY REASON; OR iii. UNAUTHORIZED ACCESS, USE OR ALTERATION OF CUSTOMER CONTENT, DATA, EMAIL OR OTHER INFORMATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), OR UNDER ANY OTHER LEGAL THEORY OR CLAIM, EVEN IF 500 ROCKETS MARKETING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
13.10: The terms of this Indemnity and Limitation of Liability section shall survive the termination, cancellation or expiration of this agreement.
13.11: Customer acknowledges that this Indemnity and Limitation of Liability section in its entirety is a material condition of the Agreement, and that 500 Rockets Marketing will not enter into this Agreement or provide any services to you in its absence.
14.1: We will maintain commercially reasonable administrative, physical and technical safeguards designed to help ensure the security of our internal networks from malicious activity and to provide for the privacy, confidentiality and integrity thereof. However, security is a shared responsibility. You agree to configure your use of the Services in such a way as to maintain the security of our Services and network (e.g. by only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords).
14.2: Should we determine that there has been a security breach that has compromised your account we agree to notify you as soon as reasonably possible but only after we have investigated the breach and fulfilled our legal obligations under applicable law. You agree to the same notification obligations should you determine that there has been a breach.
14.3: Data Controller/Data Processor. This section applies only to customers that are located in a European Economic Area member state. We are the data controller for the personal data those customers submit through the sign up process (e.g. contact information, credit card number). For all other personal data collected through provision of the Services (i.e. any personal data submitted through supported sites), we are the data processor. Where we are the data processor, we will endeavor to use such personal data only as instructed by the customer and not for any other purposes.
15.1: Publicity. During the term, either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard trademark usage guidelines. You will allow our staff to interview, write, and place case studies and written endorsements in initial news, reviews, and editorial calendar opportunities.
15.2: Governing Law and Venue. This Agreement is governed by the laws of the State of Texas, without regard to its choice of law statutes. Any disputes must be brought in the U.S. District Court for the Western District of Texas, located in Austin, Texas. If that U.S. District Court cannot hear the dispute, the dispute shall be brought before the State District Courts of Travis County located in Austin, Texas. The parties agree that venue and jurisdiction is proper in either of these courts and agree not to contest notice from either court. The United Nations Convention on the International Sale of Goods is disclaimed. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT. The parties further agree that the pricing and terms of this Agreement were made in reliance upon agreement to this paragraph.
15.3: Amendment and Waiver. Except as expressly provided herein, this Agreement, including any other contracts incorporated by reference, may only be amended as agreed by the parties in a written amendment (including by a click-to-accept that is accepted by you or Authorized User). The parties further agree that upgrades (e.g. moving up a service plan level), downgrades (e.g. moving down a service plan level), and additional services (e.g. adding account management services) may be agreed via electronic communication (e.g. ticket or email) that is acknowledged by authorized representatives for both parties. If one party fails to exercise, or delays exercising, any right, remedy or power set out in this Agreement, this will not operate as a waiver of that right, remedy or power, whether under this Agreement or at law or equity.
15.4: Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, provided that no consent is required in connection with a merger, reorganization, sale of assets or similar transaction. Any purported assignment in violation of this section shall be null and void. The Agreement will be binding on all permitted successors and assigns.
15.5: Severability. Any provision in this Agreement that is held to be illegal or unenforceable in any jurisdiction will be effective only up to the extent of such illegality or unenforceability, if possible, and will not invalidate the remaining provisions of the paragraph or this Agreement. To the largest extent possible, the illegal or unenforceable provision will be restated to reflect the parties’ intent.
15.6: Entire Agreement. This Agreement, and any document incorporated by reference, states the entire agreement between the parties with respect to the subject matter and supersedes all previous proposals, negotiations and other written or oral communications between the parties. Customer’s pre-printed purchase orders will have no force or effect.
15.7: Order of Precedence. If there is a conflict between this Agreement and any contracts incorporated by reference, they shall have the following precedence: Order, Agreement, then the applicable exhibit or other referenced document.
15.8: Force Majeure. We shall not be deemed to be in default of this Agreement, or to have breached any of its provisions, as a result of a delay, failure in performance, or interruption in the Services which result, either directly or indirectly, from any circumstances beyond our reasonable control including acts of god, acts of civil or military authority, civil disturbance, war, strikes, fire, laws, regulations, governmental acts, third party network unavailability, and/or failure of telecommunication facilities.
15.9: Third Party Beneficiaries; Relationship. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Neither party has the authority to make any representations, claims or warranties of any kind on behalf of the other party, nor on behalf of that party’s affiliates, agents, subcontractors, licensors or third-party suppliers.
15.10: Notices. Except as otherwise required herein, notices shall be effective when delivered, as indicated by a delivery receipt, or, in the case of notices delivered by post, five business days after being mailed to the designated address by first class mail. Notices to you may be made to the address set out in our customer record or electronically, through the Customer’s portal or via email to an Authorized User. You will send all notices to us at the following address: 500 Rockets Marketing, PO Box 200487, Austin, Texas, 78720
15.11: Survival. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality, limitation of liability and indemnification) will survive termination or expiration and continue in full force and effect.