This Subscription Agreement (“Agreement”) is made and entered into immediately upon acceptance of its terms and conditions by you, or immediately upon your use of the Services, as defined below, and is between you and Vextras, LLC, a Tennessee limited liability company (“Vextras”).
Vextras provides a website (“Website”) that automates your access to various internet programs (“Services”).
You desire to use the Services pursuant to the terms and conditions in this Agreement.
You and Vextras hereby agree as follows:
1. Changes. From time to time Vextras may update the terms and conditions of this Agreement without notice. If you elect not to accept the new terms and conditions, then Vextras may, in its sole discretion, immediately terminate this Agreement, discontinue providing the Services, and refund to you the amount of money that you have prepaid for Services that you have not received on the date you elect not to accept the new terms and conditions. Your use of the Services after an update of the terms and conditions of this Agreement shall constitute your consent to such changes.
2. Trial. Vextras may allow you to use the Services without charge for 30 days or another amount of time as determined solely by Vextras (“Trial Period”). During the Trial Period you will not incur any Charges, as defined in Section 3. At the end of the Trial Period, if you have not converted your account to a paying account by providing a Payment Mechanism (as defined in Section 4), Vextras will delete your account and all data associated with your account. The Trial Period ends immediately at the end of the time period specified by Vextras or when you provide a Payment Mechanism, whichever is earlier.
3. Services and Charges. In consideration of the payment of Charges, as defined below, Vextras will provide the Services to you, subject to the terms and conditions of this Agreement. “Charges” means the monthly fees applicable to the particular Services you have elected to receive from Vextras. You have either agreed to pay on a per order basis (“Order Payment”) or a flat monthly fee (“Flat Fee”). If you have agreed to Order Payment then for all Services that you receive you will be billed one month in arrears, each month, based on the number of orders for the previous month.. If you have agreed to pay a Flat Fee, then for all Services that you receive you will be billed one month in advance, each month, on the day that you initially registered for the Services. If you cancel the Service you will be immediately billed for the Services you have used that you have not already paid. You will not receive a refund or credit for a partial month when you cancel the Service. All Charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes owed by Vextras.
4. Payment Terms. You shall pay Vextras for all Charges through credit card, Paypal, google checkout, or similar payment mechanism that Vextras accepts (“Payment Mechanism”). You agree to provide Vextras the expiration date and other information requested by Vextras pertaining to the Payment Mechanism, and you hereby authorize Vextras to charge the Payment Mechanism for all Charges applicable to your purchase of the Services provided pursuant to this Agreement. Upon cancellation or expiration of your Payment Mechanism, you agree to immediately provide a new Payment Mechanism and other information requested by Vextras pertaining thereto. If Vextras provides payment terms to you, you agree to pay all Charges in accordance with such payment terms. If you have not paid all sums due Vextras in accordance with the terms hereof, a monthly finance charge equal to the lesser of (a) 1.5% per month, or (b) the highest amount permitted by law, shall accrue and be payable each month until paid in full. Furthermore, upon your failure to make payment in accordance with the terms hereof, a late fee of ten percent (10%) of the amount past due shall be due and payable by you with respect to each such late payment. The waiver of a finance charge, late fee or any portion thereof shall not be deemed to be a waiver of any future finance charges or late fees. You shall be liable to Vextras for any and all costs and expenses incurred by Vextras, including without limitation attorneys’ fees and expenses, in collection of any past due amounts hereunder.
5. Limitations. As a condition of using the Services you represent and warrant that you will not use the Website or Services for any illegal or unauthorized purpose, and your use of the Website and Services will not violate any laws in your jurisdiction (including but not limited to copyright laws). If your bandwidth usage related to the Services consistently or significantly exceeds the average bandwidth usage of other users of the Services, as determined solely by Vextras, Vextras reserves the right to immediately disable your account or throttle your usage until you can reduce your bandwidth consumption.
6. CAN-SPAM compliance. If you are using the Services that provide email messaging, you agree that your use of the email messaging Services will comply with the CAN-SPAM act and related regulations codified in 15 U.S.C. 7701-7713 and 16 CFR 316 et. seq., as amended from time to time. You agree not to use deceptive transmission information, subject lines, or email content in your use of the email messaging Services. Further, you agree not to remove or disable the opt-out code contained in the email messaging Services and to honor any opt-out requests. Vextras has placed instructions in the screens that enable your use of the email messaging Service which are designed to facilitate your compliance with CAN-SPAM. You agree to comply with such instructions.
7. User Name and Password. During the registration process you created a user name and password that allows you to have access to the Services through the Website. You will not provide your user name or password to access Services to any other person or entity, or allow any other person or entity to access Services provided to you under your user name and password. You agree that you are solely responsible for any actions that occur under your user name and password. In the event that your user name and password become known by a third party you agree to notify Vextras immediately.
9. User Content. You intend to load or give Vextras access to your customer information and other information (“Content”) to be used by the Services. Vextras acknowledges that, as between the parties, all Content shall remain your property. You acknowledge that Vextras is not responsible for Content you input into the Website or otherwise provide access to. You hereby grant Vextras a license to store, access, modify (but only temporarily to conform with the application programming interface of a third-party program), and use the Content to provide the Services. You acknowledge that Vextras will be providing the Content to third parties in the process of providing the Services. Vextras has no liability for the action or inaction of such third parties or a third party’s misuse or misappropriation of the Content. You understand that your Content may be transferred over various unencrypted networks that may not be secure. Vextras is not liable for the disclosure of your Content due to any such transfer.
10. Ownership. Vextras owns all right, title and interest in (i) the software that implements the Services and (ii) all elements of the Website. You do not acquire any ownership or rights in the Services or Website except as expressly provided herein. The Services and Website are copyrighted. Unauthorized copying of any element of the Website or Services or any accompanying written materials is expressly forbidden. You agree that you may be held legally responsible for any copyright infringement that is caused or encouraged by your failure to abide by the terms of this Agreement.
11. Updates. Vextras may, from time-to-time, upgrade or modify the Services and the Website (“Updates”). All Updates are provided to you pursuant to the terms and conditions of this Agreement.
12. Technical Support. Vextras agrees to provide technical support to you as long as you have paid all Charges owed under this Agreement. Technical support is only available by electronic mail using the support email provided on the Website.
13. Application Programming Interface. Vextras may provide you access to the Services through an application programming interface (“API”). Any use of the API, including use of the API through a third-party product that accesses the Services provided by Vextras, is governed by the terms and conditions of this Agreement. Abusive or excessively frequent requests to Services through the API, as solely determined by Vextras, may result in the temporary or permanent suspension of your access to the API. Vextras reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API, or any part thereof, with or without notice.
14. Termination. If you choose to cancel your subscription, you must terminate your use of the Services by canceling your subscription within your account dashboard via the Website. Vextras may terminate your use of the Services and deny you access to the Website at any time for any reason. If your use of the Services is terminated any Content stored by Vextras will be deleted immediately and your user name and password will be immediately disabled. Any Content deleted by Vextras because of the termination of your use of the Services cannot be retrieved.
15. Website Modifications; Price Changes. Vextras reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website or Services (or any part thereof) with or without notice. Charges of all Services, including but not limited to fees for monthly Services, are subject to change upon 30 days’ notice from Vextras. Such notice may be provided at any time by posting the changes to the Website. Vextras shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Website.
16. Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE WEBSITE ARE PROVIDED “AS IS”, AND VEXTRAS AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SERVICES AND WEBSITE (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), AS WELL AS ANY WARRANTIES THAT THE SERVICES (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE. Vextras does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable or that any errors in the Website or Services will be corrected.
17. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Vextras be liable under any theory of liability for any consequential, indirect, incidental, special, punitive or exemplary damages of any kind (“Consequential Losses”), including, without limitation, Consequential Losses arising from loss of profits, revenue, data or use, or from interrupted communications or damaged data or Content, or from any defect or error or in connection with your acquisition of substitute goods or services or from malfunction of the Services, or any such Consequential Losses arising from breach of contract or warranty or from negligence or strict liability, even if Vextras or any other person has been advised or should know of the possibility of such Consequential Losses, and notwithstanding the failure of any remedy to achieve its intended purpose. Vextras’ entire liability under any provision of this Agreement is limited to, in Vextras sole decision, the repair or replacement of the Services or Website, or an amount equal to the Charges paid under this Agreement.
18. Indemnification. You agree to indemnify, defend and hold harmless Vextras, and the officers, directors, employees, agents, contractors, subsidiaries, affiliates, or parent companies of Vextras (each an “Indemnified Person”) from any loss, cost, expense (including attorney’s fees, expert’s fees, and expenses), demand, claim, liability, damages or cause of action of any kind or character (collectively referred to as “Claim”), including without limitation, for any personal injury or death, in any manner arising out of or relating to your, or your officers, directors, employees, agents, assigns, invitees, or other users using the Services under your user name and password, whether authorized or not (i) violating or otherwise breaching of any provision of this Agreement, (ii) acts or omissions in the conduct of your business, (iii) negligence, recklessness or intentional misconduct, and (iv) violation of any and all laws, rules or regulations. You further agree to indemnify, defend and hold each Indemnified Person harmless from any Claim, including without limitation, for any personal injury or death, in any manner arising out of or relating to Vextras’ refusal to provide Services to you for any reason. These obligations will apply even if such lawsuit or other claim arises out of an Indemnified Person’s negligence, gross negligence, failure to perform duties under this Agreement, strict liability, failure to comply with any applicable law, or other fault. This provision shall survive the termination of this Agreement.
19. Third Parties. Through the Services Vextras provides integration to various e-commerce tools provided by third parties as indicated on the Website (collectively, “Third Parties”). Any copyright or trademark rights are retained by their respective Third Party owners, and any copyrighted images of Third Parties on the Website are used solely for informational purposes. Vextras is not an authorized distributor of any Third Party products. Vextras is an independent company and is in no way affiliated with any of the Third Parties. You understand and acknowledge this disclaimer, and will not construe any information, data, images, or representations from Vextras or the Website as having any affiliation with the Third Parties. If the e-commerce tools provided by Third Parties do not work or provide accurate information then the Services Vextras provides will not work correctly.
If you upload the personal information of European Union citizens onto the Vextras servers as a part of the Services, then this Section applies to you. This Section complies with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”). You agree that Vextras can store contact information for individuals and companies on your behalf for the purpose of allowing you to use the contact information for your business purposes for as long as you have an Agreement with Vextras. Vextras may use another processor (“subprocessor”) to store information provided by you.
(a) Vextras shall process the personal data only on documented instructions from you as set out in this Agreement, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or Member State law to which Vextras is subject; in such a case, Vextras shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
(b) Vextras shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(c) Vextras shall implement appropriate technical and organizational measures to safeguard personal data, which shall meet the requirements of the GDPR (Article 32). Vextras may update or modify these measures from time to time provided that such updates or modifications do not result in any material degradation of the security of personal data.
(d) Vextras is permitted to appoint a subprocessor to process personal data provided that:
(i) Vextras enters into a written contract with the subprocessor on the same terms as those set out in this Agreement;
(ii) Vextras shall inform you of any intended changes concerning the addition or replacement of any subprocessor and give you the opportunity to object to such changes; and
(iii) Where a subprocessor fails to fulfill its data protection obligations, Vextras shall remain fully liable to you for the performance of the subprocessor’s obligations.
(e) Taking into account the nature of the processing, Vextras shall provide commercially reasonable assistance to you by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of your obligation to respond to a request from a data subject to exercise the data subject’s right of access, right to rectification, restriction of processing, erasure, data portability, object to the processing or his/her rights not to be subject to an automated individual decision making. To the extent legally permitted, you shall be responsible for any costs arising from Vextras’s provision of such assistance.
(f) Vextras shall assist you in complying with the obligations of Articles 32 and 36 of the GDPR, taking into account the nature of processing and the information available to Vextras.
(g) At your choice, Vextras shall delete or return all personal data to you after the end of the provision of Services relating to personal data, and delete existing copies of personal data unless the Union or Member State law requires storage of personal data by Vextras.
(h) Upon your written request, Vextras shall make available to you the information necessary to demonstrate compliance with the obligations set out in the GDPR and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you. You agree to give Vextras reasonable notice prior to any audit and minimize any disruption to Vextras’s business. You agree to pay all costs associated with such audit. You agree to provide Vextras with the results of the audit.
(i) Vextras shall immediately inform you if, in Vextras’s opinion, an instruction infringes the GDPR or other Union or Member State data protection provisions.
(a) No Third Party Beneficiaries. No Third Party Beneficiaries. Nothing contained in this Agreement will be deemed to create, or be construed as creating, any third party beneficiary right of action upon any third party.
(b) Waiver. No party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of the waiving party. No waiver by either party of any provision hereof will constitute a waiver of such provision on any other occasion.
(c) Assignment. This Agreement is not assignable by you except upon the prior written consent of Vextras. Any unauthorized assignment of this Agreement is void. Vextras may assign this Agreement, in whole or in part, or subcontract its obligations under this Agreement, in whole or in part, without notice to you and upon such assignment, Vextras shall be released from all liability hereunder.
(d) Severability. The invalidity or unenforceability, in whole or in part, of any provision, term, or condition hereof will not affect the validity or enforceability of the remainder of such provision, term, or condition or of any other provision, term, or condition.
(e) Notices. Except as specifically provided in this Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, electronic mail, overnight courier service, first class mail postage prepaid, at the parties’ respective addresses set forth herein, or at such other address(es) as shall be specified in writing by such party to the other party in accordance with the terms and conditions of this Section. All notices shall be deemed effective upon personal delivery, or upon delivery if sent by electronic mail, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, in accordance with this Section. Notices to you shall be sent to the address provided when you registered for the Services. Notices for Vextras shall be sent to P.O. Box 991, Dandridge, Tennessee 37725.
(f) Governing Law. The terms and conditions of this Agreement are governed by and construed in accordance with the laws of the State of Tennessee, USA without resort to its conflicts of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and does not govern or apply to the terms and conditions of this Agreement.
(g) Jurisdiction and Venue. The parties hereby irrevocably submit to the jurisdiction of the state courts of the State of Tennessee and to the jurisdiction of the United States District Court for the Eastern District of Tennessee, for the purpose of any suit, action, or other proceeding related to, arising out of or based upon this Agreement or in any way related to, arising out of or involving the Services or Website; waive and agree not to assert by way of motion, as a defense, or otherwise, in any such suit, action, or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action, or proceeding is brought in any inconvenient forum, that the venue of the suit, action, or proceeding is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court; and waive and agree not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such Tennessee state or federal court. The parties hereby consent to service of process by registered mail at the address to which notice is to be given. The exclusive venue for any proceeding under this Agreement shall be solely in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee. You acknowledge that the prices for Services offered under this Agreement are in part dependent on your consent to jurisdiction in Tennessee and exclusive venue in Knox County, Tennessee, and without your consent to this jurisdiction and venue provision the prices for Services would be higher.
(h) Headings. The headings of the Sections of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
(i) Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior oral or written agreements between the parties. This Agreement may not be amended unless such amendment is in writing and signed by all parties hereto.
If you have any questions about this Agreement please contact Vextras at [email protected].