GENERAL TERMS AND CONDITIONS
Universal Terms of Service Agreement
TERMS AND CONDITIONS OF SERVICE
PLEASE READ CAREFULLY.
THIS CONTAINS THE TERMS AND CONDITIONS REGARDING THE CUSTOMER’S LEGAL RIGHTS AND REMEDIES FOR ACCESSING AND USING LAFACTORY, INC. PRODUCTS AND SERVICES.
This Universal Terms of Service Agreement (“Universal Terms”) constitutes an agreement between LaFactory, Inc. (“Company”) and the party (“Customer”) indicated on the corresponding Order Form, which is incorporated herein by this reference (together with any subsequent Order Form submitted by Customer to LaFactory, Inc, collectively, the “Order Form”), and applies to the purchase of all products and services ordered by Customer on the Order Form (collectively, the “Services”).
USE OF THIS WEBSITE AND/OR REGISTRATION FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND LAFACTORY, INC AND CUSTOMER HEREBY AGREES TO BE BOUND BY THE AGREEMENTS (AS DEFINED HEREIN). WHEN THE CUSTOMER REGISTERS AND/OR THE CUSTOMER ACCESSES OR USES THE SERVICES, THIS CONSTITUTES THE CUSTOMER’S ACCEPTANCE OF THE AGREEMENTS.
Changes to the Agreements, Policies and/or Services.
Customer’s access and/or use of the LaFactory, Inc. Site or Services after such changes or modifications have been made shall constitute Customer’s acceptance of the Agreements as of the “Last Revised Date” set forth above. If Customer does not agree to be bound by the Agreements as of the “Last Review Date”, Customer shall not access or use or continue to access or use the LaFactory, Inc Site or the Services.
LaFactory, Inc may (but is not obligated to) notify Customer from time to time of changes or modifications to the Agreements by e-mail. It is therefore important that Customer keeps its LaFactory, Inc account information (“Account”) accurate and up-to-date. LaFactory, Inc assumes no responsibility for Customer’s failure to receive email notification if such failure is the result of inaccurate Account information.
LaFactory, Inc may terminate, in its sole and absolute discretion, the Customer’s access to or use of the LaFactory, Inc Site or the Services in the event of any breach or default or threatened breach or default by the Customer of any of the terms of the Agreements.
The LaFactory, Inc. Site and the Services are available only to persons who can form legally binding contracts under applicable law. By using the LaFactory, Inc Site or the Services, Customer represents and warrants that Customer is (i) at least eighteen (18) years of age, (ii) otherwise recognized as capable of forming legally binding contracts under applicable law, and/or (iii) not a person prohibited from purchasing or receiving the Services found under the laws of the United States or any other applicable jurisdiction.
If Customer enters into the Agreements as the representative or on behalf of a corporation or third party that retains or may retain ownership of an Account, Customer hereby represents and warrants that it has the legal authority to bind such corporation or third party to the terms and conditions contained in the Agreements, in which case the term “Customer” refers to such corporation or third party. If, after Customer’s electronic acceptance of the Agreements, LaFactory, Inc. finds that Customer does not have the legal authority to bind such legal entity or third party, Customer shall be personally liable for the obligations contained in the Agreements, including, but not limited to, any payment obligations. LaFactory, Inc shall not be liable for any loss or damage resulting from LaFactory, Inc’s reliance on any representation, instruction, advice, document or communication that it reasonably believes to be genuine and from an authorized representative of the Customer’s legal entity or third party. If there is any reasonable doubt the Customer must immediately notify LaFactory, Inc. of any breach of security or unauthorized access or use of the Account. Customer may be held liable for any damage or loss that LaFactory, Inc. or others suffer as a result of a breach of an Account, whether caused by Customer, an authorized person, or an unauthorized person.
In order to access certain features of the LaFactory, Inc. Site or to use certain Services, Customer must create an Account. Customer represents and warrants to LaFactory, Inc that all information submitted by Customer when creating an Account is accurate, current and complete, and that Customer will keep such information accurate, current and complete. If LaFactory, Inc has reason to believe that the Account information is untrue, inaccurate, not current or incomplete, LaFactory, Inc reserves the right, in its sole and absolute discretion, to suspend, cancel or terminate the Account. Customer is solely responsible for any and all activity that occurs under the Account, whether or not authorized by Customer, and Customer shall keep the Account information secure, including, without limitation, any Customer number or login, password and payment method(s). For security reasons, LaFactory, Inc. strongly recommends that Customer periodically change Customer’s password for any Account.
If the Customer is acting on behalf of a legal entity or third party, upon request by LaFactory, Inc, the Customer must provide LaFactory, Inc with any contact or other information relating to the true owner of the relevant Account, which may include providing valid identification.
Customer agrees to comply with all U.S. export laws (as defined herein).
Customer shall immediately notify LaFactory, Inc. of any breach of security or unauthorized access or use of the Account. Customer may be held liable for any damage or loss that LaFactory, Inc or others suffer as a result of a breach of an Account, whether caused by Customer, or an authorized person, or by an unauthorized person.
Customer is solely responsible for the quality, performance and all other aspects of Customer Content and User Content and goods or services provided through the Services.
Customer will cooperate fully with LaFactory, Inc. in the performance of the Services by LaFactory, Inc. Customer shall provide any equipment or software that may be required by Customer to use the Services. Delays in the Customer’s performance of its obligations under the Agreements will extend the time for the Company to perform its obligations hereunder which are dependent upon the Customer’s performance on a day-to-day basis.
Customer assumes full responsibility for providing its visitors, customers or end users with any required disclosure or explanation of the various features related to Customer Content and any goods or services described therein, as well as any rules, terms or conditions of use.
Because the Services allow Customer to transmit or upload content electronically, Customer is solely and entirely responsible for uploading all content and for completing, modifying and updating Customer Content, including Customer is responsible for all backups of Customer Content. The Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Content are compatible with the hardware and software used by LaFactory, Inc. to provide the Services, as they may be modified by LaFactory, Inc. from time to time. The specifications of the hardware and software used by LaFactory, Inc to provide the Services will be available on the LaFactory, Inc Site or may be requested. LaFactory, Inc will not be responsible for any damage to Customer Content or other damages, or for any malfunction or interruption of service caused by a failure of Customer Content or any aspect of Customer Content that is compatible or incompatible with the hardware and software used by LaFactory, Inc to provide the Services.
CUSTOMER IS SOLELY RESPONSIBLE FOR MAKING BACKUP COPIES OF ALL CUSTOMER CONTENT.
Customer Representations and Warranties.
Customer hereby represents and warrants to LaFactory, Inc, and agrees that during the Initial or Launch Period and any subsequent Period (as such terms are defined herein) for the Services, Customer will ensure that:
Customer is and remains the legal owner or valid licensee of the Customer Content and each element thereof, and Customer has obtained all necessary licenses, consents, authorizations, waivers and releases for the use of the Customer Content and each element thereof, including, but not limited to, all trademarks, logos, names and likenesses contained therein, without any obligation on the part of LaFactory, Inc. to pay any fees, residuals, guild payments or other compensation of any kind to any person;
Customer’s use, publication and display of Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, nor will it constitute a defamation, invasion of privacy, or violation of any publicity or other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right, however designated;
Customer will comply with all applicable laws, rules and regulations regarding Customer Content and will use Customer Content only for lawful purposes.
Customer has made and will continue to make every effort to ensure that the Customer Content is and will at all times remain free of computer viruses, worms, Trojan horses and other malicious code.
Customer is solely responsible for the development, operation and maintenance of the Customer Content, the online store and e-commerce activities, all products and services offered by Customer or appearing through the Customer Content and all content and materials appearing online or on Customer’s products, including, without limitation:
The accuracy and appropriateness of Customer Content and content and materials appearing in its store or on its products. Ensuring that Customer’s Content and the content and materials appearing in Customer’s Store or on Customer’s Products do not infringe or violate the rights of any person; and ensuring that Customer’s Content and the content and materials appearing in Customer’s Content or in Customer’s Store or on Customer’s Products are not defamatory or otherwise illegal. Customer is solely responsible for accepting, processing and fulfilling Customer’s orders and handling Customer’s requests or complaints. Customer is solely responsible for paying or satisfying all taxes associated with Customer Content, its website(s) and online store.
In addition to transactions entered into by Customer on behalf of Customer, Customer agrees to be bound by the terms of the Agreements and Policies for transactions entered into on behalf of Customer by any person acting as Customer’s agent, and transactions entered into by any person using Customer’s account, whether or not the transactions were entered into on behalf of Customer.
License to LaFactory, Inc. Customer hereby grants to LaFactory, Inc a non-exclusive, royalty-free, worldwide right and license during the Initial or Launch Period and any other Period (as such terms are defined herein) thereafter, to do the following to the extent necessary to perform the Services:
Scan, convert, install, download, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform, and hyperlink to Customer Content;
Make archival or backup copies of Customer Content (although LaFactory, Inc. is not required to do so; Customer is solely responsible for backing up any Customer Content);
Except for the rights expressly granted above, LaFactory, Inc. acquires no right, title or interest in the Customer Content, which remains the sole property of the Customer ; and LaFactory, Inc, in its sole discretion, reserves the right to (i) refuse, cancel, suspend, transfer or alter, modify, correct, amend, change, schedule, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, amending, changing, programming, or taking any other corrective action regarding malicious code, software or related abusive activity, Customer Content and/or website(s)), and/or (ii) to comply with any applicable law, rule or governmental requirement, law enforcement requests, or to avoid liability, civil or criminal. Customer further agrees that LaFactory, Inc shall not be liable to Customer for any loss or damage that may result from such conduct.
Billing and Payment.
Customer shall pay LaFactory, Inc. all fees for the Services in the manner set forth in the Order Form or as otherwise dictated by LaFactory, Inc.
The Service Fees may not include any applicable sales, use, income, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on LaFactory, Inc.’s net income). All such taxes may be added to LaFactory, Inc.’s invoices for fees as a separate fee payable by Customer. All fees are fully earned when due and subject to LaFactory, Inc’s refund policy when paid to LaFactory, Inc.
Unless otherwise specified, Customer agrees to pay all fees and related charges are due and payable within thirty (30) days of the invoice date.
If LaFactory, Inc collects any payment due at law or through an attorney or on the advice of an attorney or through a collection agency, or if LaFactory, Inc prevails in any action to which Customer and LaFactory, Inc are parties, Customer agrees to pay all costs of collection, arbitration, and litigation, including, without limitation, all court costs and LaFactory, Inc’s reasonable attorneys’ fees.
Customer agrees that if any amount due to LaFactory, Inc remains unpaid seven (7) days after such payment is due, LaFactory, Inc, in its sole discretion, may immediately terminate the Agreements, and/or withhold or suspend the Services.
Except as required by applicable law, LaFactory, Inc does not maintain hard copies or electronic versions of money orders, standing orders or standing instruction forms and/or any signed consent regarding a Customer’s payment or use of LaFactory, Inc’s auto-renewal services, and LaFactory, Inc is therefore unable to provide any such document upon request.
IN ORDER TO ENSURE THAT THE CUSTOMER DOES NOT EXPERIENCE ANY INTERRUPTION OR LOSS OF SERVICES, THE SERVICES ARE OFFERED ON AN AUTOMATIC RENEWAL BASIS. EXCEPT AS DESCRIBED BELOW IN THIS SECTION, AUTOMATIC RENEWAL RENEWS THE APPLICABLE SERVICE AT THE EXPIRATION OF THE CURRENT TERM FOR A RENEWAL PERIOD EQUAL TO THE MOST RECENT SERVICE TERM.
UNLESS CUSTOMER DISABLES THE AUTOMATIC RENEWAL OPTION IN THE ACCOUNT, LAFACTORY, INC WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL COLLECT PAYMENT FROM ANY PAYMENT METHOD CUSTOMER HAS REGISTERED WITH LAFACTORY, INC, AT LAFACTORY, INC’S THEN CURRENT RATES, WHICH CUSTOMER ACKNOWLEDGES AND AGREES MAY BE HIGHER OR LOWER THAN THE RATES FOR THE INITIAL SERVICE PERIOD. IN ORDER TO VIEW THE RENEWAL SETTINGS APPLICABLE TO THE CUSTOMER AND THE SERVICES, THE CUSTOMER WILL NEED TO LOG INTO HIS ACCOUNT. IF CUSTOMER DOES NOT WISH TO HAVE A SERVICE AUTOMATICALLY RENEWED, CUSTOMER MAY ELECT TO CANCEL SUCH RENEWAL, IN WHICH CASE THE SERVICES WILL TERMINATE AT THE EXPIRATION OF THE CURRENT TERM, UNLESS CUSTOMER MANUALLY RENEWS THE SERVICES PRIOR TO THAT DATE (IN WHICH CASE THE SERVICES WILL BE RESET TO AUTO-RENEWAL). FOR THE AVOIDANCE OF DOUBT, IF THE CUSTOMER CHOOSES TO CANCEL THE SERVICES AND DOES NOT MANUALLY RENEW THE SERVICES PRIOR TO EXPIRATION, THE CUSTOMER MAY EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES AND LOSS OF CUSTOMER CONTENT, AND LAFACTORY, INC WILL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR SUCH INTERRUPTION OR LOSS.
IN ORDER TO ENSURE THE RENEWAL OF THE CUSTOMER’S DOMAIN NAME AND/OR SECURED SOCKET LEVEL (“SSL”) REGISTRATION, LAFACTORY, INC MAY PROCESS RENEWAL FEES UP TO TWO WEEKS PRIOR TO THE CUSTOMER’S EXPIRATION DATE, UNLESS THE CUSTOMER EXPLICITLY REQUESTS OTHERWISE IN WRITING.
LAFACTORY, INC MAY PARTICIPATE IN “RECURRING BILLING PROGRAMS” OR “ACCOUNT UPDATE SERVICES” SUPPORTED BY LAFACTORY, INC. OR “ACCOUNT UPDATE SERVICES” SUPPORTED BY THE CUSTOMER’S CREDIT CARD PROVIDER (AND ULTIMATELY DEPENDENT ON THE PARTICIPATION OF THE CUSTOMER’S BANK). IF LAFACTORY, INC IS UNABLE TO SUCCESSFULLY CHARGE THE CUSTOMER’S EXISTING PAYMENT METHOD, THE CUSTOMER’S CREDIT CARD PROVIDER (OR THE CUSTOMER’S BANK) MAY NOTIFY LAFACTORY, INC OF UPDATES TO THE CUSTOMER’S CREDIT CARD NUMBER AND/OR EXPIRATION DATE, OR MAY AUTOMATICALLY CHARGE THE CUSTOMER’S NEW CREDIT CARD ON BEHALF OF LAFACTORY, INC WITHOUT NOTIFYING LAFACTORY, INC. IN ACCORDANCE WITH THE REQUIREMENTS OF ANY RECURRING BILLING PROGRAM, IN THE EVENT LAFACTORY, INC IS NOTIFIED OF AN UPDATE TO THE CUSTOMER’S CREDIT CARD NUMBER AND/OR EXPIRATION DATE, LAFACTORY, INC MAY AUTOMATICALLY UPDATE THE CUSTOMER’S PAYMENT PROFILE ON BEHALF OF THE CUSTOMER. THE COMPANY DOES NOT GUARANTEE THAT THE COMPANY WILL REQUEST OR RECEIVE THE CUSTOMER’S UPDATED CREDIT CARD INFORMATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS CUSTOMER’S SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN ACCOUNT SETTINGS, INCLUDING, BUT NOT LIMITED TO, (I) CANCELING SERVICES AND (II) ENSURING THAT THE PAYMENT METHOD(S) ASSOCIATED WITH CUSTOMER ARE CURRENT AND VALID. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S FAILURE TO DO SO MAY RESULT IN INTERRUPTION OR LOSS OF SERVICES, AND LAFACTORY, INC SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SUCH INTERRUPTION OR LOSS.
If, for any reason, LaFactory, Inc is unable to debit the Customer’s payment method for the full amount due, or if LaFactory, Inc is notified of a chargeback, cancellation, dispute of payment, or if it is assessed a penalty for charges it has previously debited to the Customer’s payment method, the Customer agrees that LaFactory, Inc may exercise all available legal remedies to obtain payment, including, but not limited to, immediate cancellation of the Services, without notice to the Customer. LaFactory, Inc also reserves the right to charge Customer a reasonable “administrative” fee for (i) tasks LaFactory, Inc may perform outside the normal scope of its Services, (ii) additional time and/or costs LaFactory, Inc may incur in providing the Services, and/or (iii) Customer’s non-compliance with the Agreements (as determined by LaFactory, Inc in its sole and absolute discretion), which typical administrative or processing cost scenarios include, but are not limited to (a) customer service issues that require additional time or personal attention; (b) recovery of all costs and fees, including the cost of services, incurred by LaFactory, Inc as a result of chargebacks, cancellations, payment disputes, penalties, or other payment disputes presented by Customer, Customer’s bank, or Customer’s payment method processor. Such administrative or processing fees will be charged to the payment method that Customer has registered in its account.
LaFactory, Inc may offer prices in different currencies. The transaction(s) will be processed in the selected currency and the price displayed during the payment process will be the actual amount submitted for payment. For some payment methods, the issuer of Customer’s payment method may charge Customer a foreign transaction fee or other fee, which may be added to the final amount that appears on Customer’s bank statement or displayed as a separate amount. Customer should check with the issuer of its payment method for details. In addition, regardless of the currency selected, Customer acknowledges and agrees that Customer may be charged value added tax (“VAT”), goods and services tax (“GST”), or other localized fees and/or taxes, depending on Customer’s bank and/or the country listed in Customer’s billing address section of the Account.
Term, Termination, Cancellation Policy.
The initial/introductory term of this Agreement shall be the term specified in the Order Form or when you signed up for the Services (the “Initial Term”). The Initial Term shall commence upon commencement of the Services. After the Initial Term, this Agreement will automatically renew. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
AFTER THE INITIAL TERM, CUSTOMER ACKNOWLEDGES, AGREES AND AUTHORIZES LAFACTORY, INC TO AUTOMATICALLY CHARGE AND/OR DEBIT CUSTOMER’S CREDIT CARD FOR SUCCESSIVE PERIODS EQUAL TO THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED HEREIN. REFER TO SECTION 9, BILLING AND PAYMENT, FOR FURTHER DETAILS.
This Agreement may be cancelled by Customer upon proper notice to Company prior to the end of the Initial Term or any subsequent term. Customer will be subject to an early cancellation fee of at least $50.00. If Customer cancels this Agreement, no refund will be given for unused time on the Account if it does not meet the criteria of the Money Back Guarantee. Customer is required to pay one hundred percent (100%) of all fees for all Services for each remaining month of the Term. Customer shall pay all fees and charges accrued prior to the date of such cancellation. LaFactory, Inc. may, but is not obligated to, refund to Customer all prepaid fees for the Services, but only for the full months remaining after the cancellation is effective. No charges for a partial month will be refunded. Any refund made in this manner will be reduced by the setup and/or cancellation fee, the normal cost of any “free” service, and any discount applied for prepayment, provided that Customer has not violated the terms and conditions of this Agreement or the Policies.
LaFactory, Inc may terminate this Agreement in the event of non-payment by Customer. LaFactory, Inc may also terminate, without penalty, if the Services are prohibited by applicable law, or if they become impractical or infeasible for any technical, legal or regulatory reason, or as otherwise provided herein. LaFactory, Inc will provide the Customer with as much notice as possible.
LaFactory, Inc may terminate Customer’s account or access to all or part of the Services at any time, with or without cause, with or without notice, effective immediately.
LaFactory, Inc may terminate this Agreement immediately, without penalty or notice and without refund, if LaFactory, Inc, in its sole and absolute discretion or judgment, determines that Customer’s use of the Services or Customer Content violates any term of this Agreement or the Policies. or that Customer’s use of the Services is disruptive, or in LaFactory, Inc’s sole and absolute discretion or judgment,
In the event of termination of this Agreement for any cause or reason, neither party shall have any further rights or obligations under this Agreement except as expressly provided herein. The provisions of Sections 5, 7, 14, 15, 16, 24, 25 shall survive the expiration or termination of this Agreement for any cause or reason, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability arising under this Agreement. The termination of this Agreement and the retention of prepaid fees and charges are in addition to, and not in lieu of, any other legal or equitable rights or remedies to which LaFactory, Inc. may be entitled.
Conduct towards LaFactory, Inc.
LaFactory, Inc. will protect the health, safety and welfare of its employees. Unprofessional conduct, threats, abusive language (including, but not limited to, derogatory remarks regarding the gender, race, religion, or sexual orientation of LaFactory, Inc. employees) and/or anything that could be considered hate speech in the course of the Customer’s communications with LaFactory, Inc. will not be tolerated. Such conduct may result in termination of communications and repeated violations may result in suspension, cancellation, or termination of the Services account, without any refund to the Customer, as determined in the Company’s sole discretion.
LaFactory, Inc hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-free license, exercisable only during the term of the Agreements, to use LaFactory, Inc’s technology, products and services solely for the purpose of accessing and using the Services. Customer may not use LaFactory, Inc’s technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, the Agreements do not transfer from LaFactory, Inc. to Customer any LaFactory, Inc. technology, all right, title and interest in and to any LaFactory, Inc. technology, which shall remain solely with LaFactory, Inc. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or attempt to derive the source code or other trade secrets of LaFactory, Inc.
LaFactory, Inc owns all right, title and interest in and to the Services and LaFactory, Inc’s trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and related hardware, software and systems (“Marks”). Nothing in the Agreements constitutes a license for Customer to use or resell the Marks.
The LaFactory, Inc. web interface is the property of LaFactory, Inc. Although LaFactory, Inc does not protect by compilation or encryption, each of them is protected by trademark, copyright, trade secret and other laws. The Customer shall not modify or distribute these proprietary materials in any way, except as authorized in writing by LaFactory, Inc. LaFactory, Inc will not authorize Customer to make any changes to the copyright notice and/or disclaimers contained therein. Requests for modifications, including translation into other languages, addition of links or advertising, menu changes, or customer-specific options, should be sent to LaFactory, Inc’s legal department by the means indicated on LaFactory, Inc’s website. All such requests are subject to an approval process by LaFactory, Inc, but are not required to be accepted. Changes for the benefit of a single customer that would result in more than one concurrent version of the software will not be considered.
Trademark and/or Copyright Claims. LaFactory, Inc supports the protection of intellectual property. If Customer wishes to submit (i) a trademark claim for infringement of a mark in which Customer has a valid and registered trademark or service mark, or (ii) a copyright claim for material in which Customer has a bona fide copyright, please refer to the LaFactory, Inc.
Links to Third Party Websites. The Customer Site and the Services may contain links to third party websites that are not owned or controlled by LaFactory, Inc. LaFactory, Inc. assumes no responsibility for the content, terms, privacy policies, or practices of third-party websites. In addition, LaFactory, Inc does not censor or edit the content of any third-party website. By using the Customer Site or Services, the Customer expressly releases LaFactory, Inc from any and all liability arising from the Customer’s use of any third party website. Therefore, LaFactory, Inc encourages Customer to review, upon leaving the Customer Site or Services, the terms and conditions, privacy policies and other documents governing each other website Customer may visit.
Indemnification. Customer agrees to indemnify, defend and hold harmless LaFactory, Inc and its parents, subsidiaries and affiliates, and each of their respective officers, directors, employees, shareholders, attorneys, consultants and agents (each an “Indemnified Party” and collectively the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceeding (whether judicial or administrative), (including, but not limited to, reasonable attorneys’ fees) threatened, asserted or filed by any third party against any of the Indemnified Parties (i) arising out of or relating to Customer’s use of the Services, (ii) for any breach by Customer of the Agreements, the Policies, the AUP, or any agreement related to the Services, (iii) any breach of any representation, warranty, or covenant of Customer, or (iv) any act or omission by Customer. The terms of this section shall survive any termination of the Agreements.
Compliance with Local Laws. LaFactory, Inc. makes no representation or warranty that the content available on the LaFactory, Inc. Site or the Services is appropriate in any country or jurisdiction, and access to the LaFactory, Inc. Site or the Services from countries or jurisdictions where any content is considered illegal is prohibited. Customers or users who choose to access the LaFactory, Inc. Site or the Services are responsible for compliance with all local laws, rules and regulations.
Translation. The Agreements are written in English (USA). LaFactory, Inc may, but is not obligated to, translate the terms into other languages. In the event of a conflict between a translated version of the Agreements and the English (US) version, the English (US) version shall prevail.
Terms and Conditions.
Independent Contractor. LaFactory, Inc and Customer are independent contractors and nothing in the Agreements places LaFactory, Inc and Customer in the relationship of principal and agent, master and servant, partner or joint venturer. Neither party has, expressly or impliedly, or shall hold itself out as having the authority to enter into any contracts or agreements on behalf of the other party or to obligate or bind the other party in any manner whatsoever.
Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to the Agreements, including the formation thereof or any claim based on an alleged tort, shall be governed by the substantive laws of the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreements. ANY SUIT, ACTION OR PROCEEDING RELATING TO THE AGREEMENTS MUST BE BROUGHT IN A STATE OR FEDERAL COURT LOCATED IN MIDDLETOWN COUNTY, DELAWARE, AND EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND APPROPRIATE COURTS OF APPEALS) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR TO THE FACT THAT ANY SUCH SUIT, ACTION OR PROCEEDING THAT IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Jurisdiction and Disputes.
Customer acknowledges and agrees that the Agreements shall be deemed to have been entered into in California, regardless of Customer’s location.
Prior to the filing of any claim or action relating to a dispute arising under the Agreements (other than an action seeking injunctive relief as provided herein), the aggrieved party will request in writing the involvement of the other party in negotiating an amicable resolution. The parties will make a good faith effort to arrange written communications, face-to-face meetings, and/or conference calls, as appropriate and at the convenience of the relevant management personnel, within thirty (30) days of the request to negotiate a settlement (the “Negotiation Period”), and no legal action will be taken with respect to the Dispute during such Negotiation Period
CLASS ACTION WAIVER. CUSTOMER AGREES NOT TO CONSOLIDATE THE CLAIM OF MORE THAN ONE PERSON, AND MAY NOT OTHERWISE PRESIDE OVER OR PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING OR CLAIM (SUCH AS A CLASS ACTION, REPRESENTATIVE ACTION, CONSOLIDATED ACTION, OR PRIVATE ATTORNEY GENERAL ACTION) UNLESS CUSTOMER AND LAFACTORY, INC. SPECIFICALLY AGREE IN WRITING TO DO SO. NEITHER CUSTOMER NOR ANY OTHER MEMBER OF THE COMPANY MAY BE A CLASS REPRESENTATIVE, CLASS MEMBER, OR OTHERWISE PARTICIPATE IN ANY CLASS, REPRESENTATIVE, CONSOLIDATED OR PRIVATE ATTORNEY GENERAL ACTION.
Securities. The headings herein are for convenience only and are not part of the Agreements.
Entire Agreement; Amendments. The Agreements, including the Policies, AUP or any agreement related to the Services, and the documents incorporated herein by reference, supersede all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and the Agreements (unless specifically stated) constitute the sole and exclusive agreement between the parties with respect to the matters covered hereby. In the event of any conflict between the Agreements, any Order Form, purchase order, service order, work order, confirmation, correspondence or other communication from Customer or LaFactory, Inc, the terms and conditions of the Agreements shall govern. No additional terms and conditions relating to the subject matter of the Agreements shall be effective unless approved in writing by an authorized representative of the Customer and LaFactory, Inc. The Agreements may only be modified or amended by another written agreement signed by the parties hereto; provided, however, that the Agreements may be modified from time to time by LaFactory, Inc. in its sole discretion, such modifications to be effective upon posting on the LaFactory, Inc.
Severability. All rights and restrictions contained in the Agreements may be exercised and will be enforceable and binding only to the extent that they do not violate any applicable law and are intended to be limited to the extent necessary to not render the Agreements illegal, invalid or unenforceable. If any provision or portion of any provision of the Agreements is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
Notices. All notices and demands required or contemplated hereunder by either party to the other shall be in writing and shall be deemed to have been duly made and given on the date of delivery if delivered personally or by overnight delivery or postal service, on receipt if delivered by facsimile transmission the receipt of which is confirmed by the addressee, or on the expiration of five days after the date of mailing if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth under the signatures of the parties. Either party may change its address or fax number for purposes of the Agreements by written notice to the other party as provided herein. LaFactory, Inc may give written notice to Customer by email to Customer’s email address as maintained in the Account.
Waiver. No failure or delay by any party hereto in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any further or subsequent exercise thereof or the exercise of any other right or remedy. No express waiver or assent by either party to a breach or default of any term or condition of the Agreements shall constitute a waiver or assent to any subsequent breach or default of the same term or condition of the Agreements.
Assignment; Successors. Customer may not assign or transfer the Agreements or any of its rights or obligations hereunder without the prior written consent of LaFactory, Inc. Any attempted assignment in violation of the foregoing provision shall be null and void and of no effect whatsoever. LaFactory, Inc. may assign its rights and obligations under the Agreements, and may engage subcontractors or agents in the performance of its duties and exercise of its rights hereunder, without the consent of Customer. The Agreements shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Limitation of Actions. No action in any form arising out of or relating to the Agreements may be brought by either party more than two years after the cause of action arose.
Counterparties. If the Agreements are manually executed, each Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. If the Agreements are executed electronically, LaFactory, Inc’s records of such execution shall be presumed accurate, absent proof to the contrary.
Force Majeure. Neither party shall be liable for any failure or delay in performing any of its obligations under the Agreements (other than failure to make payments when due) if such failure or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor dispute, accidents, acts of war or terrorism, epidemics, pandemics, governmental orders, transportation or communication disruptions, supply shortages, or failure of any third party to fulfill any commitment to produce or deliver any equipment or materials necessary for such party to perform its obligations hereunder.
No Third Party Beneficiaries. Except as expressly provided in the Agreements, nothing is intended, and nothing herein shall be construed, to confer any rights, legal or equitable, on any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that LaFactory, Inc. and any supplier to the Third Party Provider that is identified as a Third Party Beneficiary, is an intended Third Party Beneficiary of the provisions set forth in the Agreements as they relate specifically to its products or services and shall have the right to directly enforce the terms and conditions of the Agreements with respect to its products or services against Customer as if it were a party to the Agreements.
Government Regulations. Customer may not export, re-export, transfer or make available, directly or indirectly, any regulated items or information to anyone outside the United States under the Agreements without first complying with all export control laws and regulations that may be imposed by the United States government and any country or organization of nations in whose jurisdiction Customer operates or does business.
U.S. Export Laws. The LaFactory, Inc. Site and the Services are subject to the export laws, restrictions, regulations and administrative actions of the U.S. Department of Commerce, the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury, the U.S. Department of State and other U.S. authorities (collectively, “U.S. Export Laws”). Customer shall not use the Services to collect, store or transmit any information or technical data controlled under U.S. Export Laws. Users shall not export or re-export, or permit the export or re-export of, any of the Services found on this site in violation of U.S. export laws. None of the Services may be downloaded or otherwise exported or re-exported (i) to (or to a national or resident of) any country with which the United States has a trade embargo; or (ii) to any person on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Commerce Department’s Denied Persons List, or any other list of parties denied entry under U.S. export laws. By using the LaFactory, Inc. Site and the Services, Customer agrees to the foregoing and represents and warrants that Customer is not a national or resident of, located in, or under the control of any restricted country, that Customer is not on a denied list and that Customer agrees to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If Customer accesses the LaFactory, Inc. Site or Services from other countries or jurisdictions, Customer does so on its own initiative and is responsible for compliance with the local laws of that jurisdiction, if and to the extent such local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, Customer shall not access the LaFactory, Inc. The obligations in this section shall survive any termination or expiration of the Agreements or Customer’s use of the LaFactory, Inc.
Marketing. Customer agrees that, during the term of the Agreements, LaFactory, Inc may publicly refer to Customer, orally and in writing, as a customer of LaFactory, Inc. Any other public reference to Customer by LaFactory, Inc requires the written consent of Customer.
Web Hosting. Web hosting plans include shared enterprise hosting, WordPress hosting and reseller plans. Each of these plans places Customer’s content on one or more LaFactory, Inc. servers. Each Customer is assigned a unique Domain Name System (“DNS”) identifier, which translates domain names into IP addresses to enable Internet browsers to load Internet resources. Hardware and software resources can be shared between customers on the same LaFactory, Inc. servers.
Shared business hosting plans are shared hosting environments, so to ensure fast and reliable service to all our customers, accounts that negatively affect server or network performance must correct these problems or will be asked to switch to a virtual or dedicated server.