Universal Terms of Service for guardNOW Services
This Universal Terms of Service for guardNOW and Services Agreement (‘Agreement’) is by and between guardNOW.net, Inc. (‘guardNOW’) a/an California corporation and you, your heirs, agents, successors and assigns (‘You’), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of guardNOW services (‘Services’) and explains guardNOW’s obligations to You and Your obligations to guardNOW in relation to the Services You purchase.
This Agreement as well as any additional guardNOW policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and guardNOW concerning Your use of guardNOW’s Services, and supersede and govern all prior proposals, agreements, or other communications. All guardNOW policies and agreements specific to particular Software and Service are incorporated herein. By purchasing guardNOW’s Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which guardNOW may establish from time to time, and any agreements that guardNOW is currently bound by or will be bound by in the future.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You’ve established with GuardNOW, whether or not the transactions were in Your behalf.
A. GENERAL TERMS APPLICABLE TO ALL SOFTWARE AND SERVICES
1. TERM OF AGREEMENT; MODIFICATIONS.
You agree that guardNOW may modify this Agreement and the Services from time to time. You agree to be bound by any changes guardNOW may reasonably make to this Agreement when such changes are made. If You have purchased Services from guardNOW, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Services. In the event You terminate Your usage, guardNOW will not refund any amounts You have paid. You agree that guardNOW shall not be bound by any representations made by third parties who You may use to purchase Services from guardNOW, and that any statement of a general nature, which may be posted on guardNOW’s web site or contained in guardNOW’s promotional materials, will not bind guardNOW. guardNOW may, at times, offer certain promotions with different charges and features.
You agree that You will be responsible for notifying guardNOW should You desire to terminate Your use of guardNOW’s Services. Notification of Your intent to terminate must be provided to guardNOW no earlier than ten (10) days prior to Your billing date but no later than three (3) days prior to Your billing date.
2. ACCURATE INFORMATION.
You agree to maintain accurate information by providing updates to guardNOW, as needed, while You are using guardNOW’s Services. You agree You will notify GuardNOW within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by guardNOW to determine the validity of information provided by You will constitute a material breach of this Agreement.
4. NO UNLAWFUL CONDUCT OR IMPROPER USE.
As a condition of Your use of guardNOW’s Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to guardNOW if, for any reason, guardNOW takes corrective action with respect to Your improper or illegal use of its Services.
If You have purchased Services, guardNOW has no obligation to monitor Your use of the Services. guardNOW reserves the right to review Your use of the Services and to cancel the Services in its sole discretion. guardNOW reserves the right to terminate Your access to the Services at any time, without notice, for any reason whatsoever.
guardNOW reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against guardNOW or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. guardNOW may review every account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels.
Except as set forth below, guardNOW may also cancel Your use of the Services, after thirty (30) days, if You are using the Services, as determined by GuardNOW in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to:
– activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties;
– activities prohibited by the laws of the United States and/or foreign territories in which You conduct business;
– activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography;
– activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable;
– activities designed to harm or use unethically minors in any way; and
Notwithstanding anything to the contrary herein, in the event guardNOW cancels Your Services during the first thirty (30) days after You purchase the Services, You will receive a refund of any fees paid to guardNOW in connection with the Services being cancelled. In the event guardNOW deletes Your Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to guardNOW if, for any reason, guardNOW takes corrective action with respect to Your improper or illegal use of its Services.
5. FEES AND PAYMENT.
As consideration for the Services purchased by You and provided to You by guardNOW, You agree to pay guardNOW at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. guardNOW expressly reserves the right to modify pricing through email notification and/or notice on its web site. Payment may be made by You by Express Checkout where available, or by providing either a valid credit card, an online check, a personal check, gift card, except as prohibited in any product specific agreement.
If for any reason guardNOW is unable to charge Your Payment Method for the full amount owed guardNOW for the Services provided, or if guardNOW is charged a penalty for any fee it previously charged to Your Payment Method, You agree that guardNOW may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason guardNOW is unable to charge Your credit card with the full amount of the Services provided, or if guardNOW is charged back for any fee it previously charged to the credit card You provided, You agree that guardNOW may pursue all available remedies in order to obtain payment. You agree that among the remedies guardNOW may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any Services registered. guardNOW reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, including PayPal and Certegy, Inc., and disputes that require legal services. For guardNOW Marketplace orders where payment has not been received or guardNOW has received a chargeback for any portion of the transaction, You understand that in addition to any administrative fees guardNOW may charge for the handling of the chargeback, the seller may also pursue all available lawful remedies to collect payment plus applicable fees, or obtain the lost.
6. REPRESENTATIONS AND WARRANTIES.
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are eighteen (18) years of age or older, or that You have an agent authorized by law to represent You who is eighteen (18) years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party’s trademark or trade name.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL GuardNOW BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SERVICES, YOUR DAMAGE OF PROPERTY OR OTHERWISE, EVEN IF GuardNOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, guardNOW’s liability is limited to the full extent permitted by law. You agree that in no event shall guardNOW’s maximum aggregate liability exceed the total amount paid by You for the particular Software or Service in dispute purchased from guardNOW.
8. DISCLAIMER OF WARRANTIES.
GuardNOW EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUCH SERVICES ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS. GuardNOW MAKES NO WARRANTY THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. GuardNOW DOES NOT WARRANT, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR RESULTS OF, ANY OF THE SERVICES IT PROVIDES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless guardNOW and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with guardNOW whether or not on Your behalf, and whether or not with Your permission) use of the Services You purchased from guardNOW or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold guardNOW harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should guardNOW be notified of a pending law suit, or receive notice of the filing of a law suit, guardNOW may seek a written confirmation from You concerning Your obligation to indemnify guardNOW. Your failure to provide such a confirmation may be considered a breach of this Agreement. You agree that guardNOW shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify guardNOW of any such claim promptly in writing and to allow guardNOW to control the proceedings. You agree to cooperate fully with guardNOW during such proceedings.
You agree that all notices (except for notices concerning breach of this Agreement) from guardNOW to You may be posted on guardNOW’s web site. Notices concerning breach will be sent either to the email or postal address You have on file with guardNOW. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to guardNOW shall be made either by email, sent to the address provided on the guardNOW web site, or first class mail to guardNOW’s address at:
Attn: Legal Counsel
16209 Victory Blvd. #302
Van Nuys, CA 91406
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
12. ENTIRE AGREEMENT.
You agree this Agreement including the policies and agreements it refers to (i.e. Dispute Resolution Policy, etc.) constitute the complete and only Agreement between You and guardNOW regarding the Services contemplated herein.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the Agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
The failure of guardNOW to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of guardNOW thereafter to enforce such provisions.
15. FORCE MAJEURE.
guardNOW will make every effort to keep its web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold guardNOW liable for any of the consequences of such interruptions.
Sections 1, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive any termination or cancellation of this Agreement.
17. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.