(Updated February 2016)
These Standard Terms of Service (“Terms of Service”) govern the purchase and provision of ReputationDefender® Services (the “Services”) by ReputationDefender LLC (the “Company”) to its customer (the “Client”) and are incorporated into Client’s agreement to purchase such Services (“Service Agreement”) as if set forth fully therein.
The Company provides a variety of online reputation management and privacy-related products and services (the “Services”). A general description of the ReputationDefender® services may be found at www.reputationdefender.com/reputationdefender. The Service Agreement signed by Client shall specify the scope of the specific Services that Client is purchasing under this Agreement. The Client must be the individual or entity, or an authorized representative of the individual or entity, for whom the Services will be performed. If not, Client must provide verification that it has the authority to secure Services on the third party’s behalf or must be the parent or legal guardian of a minor for whom Services are purchased.
2. AUTHORIZATIONS AND CLIENT RESPONSIBILITIES
2.1 Reputation Advocate. Client authorizes Company to be Client’s reputation advocate. In this role, Client authorizes Company to, among other things, use Client’s information to search the Internet and the “deep Web” using any tools available and to take actions based on the results of these searches that the Company deems reasonably necessary in order to provide the Services. Because search remediation activities are included in the Services, Client also authorizes Company to use optimization techniques to promote welcome content above unwelcome content on Internet search engines. Client recognizes that such techniques may have unpredictable side-effects, including but not limited to negative responses from others. We are not Client’s lawyer and do not offer legal advice, nor does this Agreement or the Services create any attorney-client relationship or legal representation.
2.2 Your Cooperation Required. To perform the ReputationDefender® services, the Company requires information from the Client and the active participation of the Client to review and approve content, among other things. Client agrees to provide the information required by Company in order to perform the Services, and Client understands that the quality and quantity of the information that Client provides to Company may impact the effectiveness of the Services. Client also agrees to timely and promptly respond to requests for information and content approvals.
2.3 Accounts and Domains. Client authorize Company to act on Client’s behalf in creating accounts on other websites in Client’s name as Company reasonably determines is beneficial to providing the Services. If the acquisition of a domain names is included in the Services, Client will cooperate with Company as necessary to procure any domain names or similar registrations and will direct the domain names to a location identified by the Company.
2.4 Content Publishing. If content creation and publishing is included in the Services, Client authorizes Company to use the information Client provides (the “Client Materials”), as well as any publicly available information that Company reasonably deems to be useful in providing the Services, to create and publish Web content, including content that represents Client. Client grants Company the right to modify and publish any or all of the Client Materials or Web content created therefrom on any websites Company reasonably deem appropriate for the purposes of providing the Services, and Client hereby grant to the Company and its authorized personnel a worldwide, royalty-free, fully-paid, non-exclusive, transferable (in connection with an assignment of the Agreement), sublicensable (as necessary to perform the Services) license to use, reproduce, publicly perform, publicly display, publish, distribute, create derivative works of, and otherwise exploit any intellectual property, including content, trademarks, logos, photos, videos, advertisements, information, and Client Materials as we deem appropriate to perform the Services. The Company will own, subject to any Client Materials therein, all right, title, and interest in and to any materials, content, or other works of authorship created by or on behalf of the Company and used in connection with the Services provided under this Agreement (the “New Content”). The Company acknowledges and agrees that Client will own all right, title, and interest in and to any Client Materials. Following the end of the Engagement, and provided that all amounts due under the Agreement have been paid in full, then all right, title, and interest in all New Content will revert to the Client.
2.5 Permitted Use. The Company does not allow its Services to be used in connection with any illegal activities or activities that it reasonably deems improper in its sole discretion. The Company reserves the right to take preventative or corrective actions to protect the Company and its users if it determines its Services are being used for improper purposes. Client’s use of the Services is conditioned on Client’s compliance with the rules of conduct set forth in this Section. Any failure to comply may result in termination of Client’s Engagement and the Services. While using the Services, Client are not to: (a) impersonate any person or entity, falsely state or otherwise misrepresent Client’s affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information; (b) defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (c) access or use (or attempt to access or use) another user’s account without permission; (d) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature; (e) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any aspect or portion of the Services; (f) “frame” or “mirror” any aspect or portion of the Services; (g) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Services (if applicable); or (h) harvest or collect information about or from other users of the Services. Subject to the limited rights to use the Services pursuant to this Agreement, Company retains all rights, title and interest in and to the Services, including all related intellectual property contained therein.
3. FEES AND PAYMENT FOR SERVICES
3.1 Fees for Services. Client agrees to pay all fees specified in the Service Agreement. Client is responsible for providing complete and accurate billing and contact information and for notifying us of any changes to such information. Except as otherwise expressly stated on a Service Agreement, all sales are final, payment obligations are non-cancelable and fees paid are non-refundable.
3.2 Credit Card Authorization. By submitting a credit/debit card (“Payment Accounts”) data to the Company, Client authorizes the Company in its complete discretion to submit a financial transaction(s) to Client’s issuing bank for settlement. Client agrees to contact the Company in the event that the Client desires to cancel a recurring charge, prior to the next billing cycle, though cancellation of the recurring charge may not relieve Client of your legal obligation to pay. Should Client fail to contact the Company, Client agrees to indemnify and hold the Company harmless from any losses or damages that Client suffers as a result of a recurring charge. If Client thinks that there is an error on your account, including an incorrect amount or unauthorized transaction, Client agrees to contact the Company prior to the next billing cycle. The Company may be contacted at:. Client represents and warrants that Client has the legal rights to use the Payment Accounts and hereby authorizes Company to charge the Payment Accounts for all Services listed on the Service Agreement for the Initial Term and each subsequent period until termination. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Service Agreement.
3.3 Taxes, Late Fees and Penalties. Client shall be responsible for paying any applicable taxes related to each Service Agreement. Payments by the Client are due and payable on dates set forth in Service Agreement. If payment is not received by due date, Client shall be assessed a late fee on the overdue amount at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If the amount owing by Client under any Service Agreement is thirty (30) or more days overdue, Company may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.
4. WARRANTIES AND DISCLAIMER
4.1 Warranties. Each party to this Agreement represents and warrants that such party is duly authorized and has legal capacity to execute and deliver this Agreement. Each party further represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. Client further represents and warrants that: (a) all information provided to Company (including the Client Materials) is accurate and truthful; (b) Client has the right to grant Company the licenses specified in the Section titled “Content Publishing” (if applicable to provision of the Services); (c) the execution and performance of this Agreement does not violate any applicable law or other contract or obligation to which Client is a party or is otherwise bound; and (d) the Client Materials do not infringe the intellectual property rights, including any copyrights, trademarks, trade secrets, right of privacy, or right of publicity, of any person.
4.2 Disclaimers. The Company does not guarantee that it will be successful in effecting the removal, the suppression or the alteration, of any specific Internet content that is designated as Unwelcome Content or that its Services will achieve the result that that Client desires due to the complexity of the internet, the evolving nature of search algorithms and the changing content and activity of the Internet. THE SERVICES ARE PROVIDED “AS IS” AND COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES AND THE SUBJECT MATTTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. THIS DISCLAIMER SHALL BE ENFORCED TO THE EXTENT PERMITTED BY LAW IN THOSE JURISDICTIONS THAT MAY LIMIT THE EXCLUSION OF IMPLIED WARRANTIES.
4.3 Internet Delays. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications that are outside the Company’s control. Company is not responsible for any delays, delivery failures or other damages resulting from such problems. Company does not guarantee the Services will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Client’s equipment, systems or local access services, or (3) for previously scheduled maintenance.
5. LIMITATION OF LIABILITY
5.1 Types of Damages. COMPANY WILL NOT BE LIABLE TO CLIENT OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF COMPANY AND/OR ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR DAMAGE
5.2 Amount of Damages. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CLIENT TO COMPANY PURSUANT TO THE ENGAGEMENT LETTER THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (“CAP”). THE EXISTENCE OF ONE OR MORE CLAIMS SHALL IN NO EVENT INCREASE COMPANY’S TOTAL LIABILITY BEYOND THE CAP IN NO EVENT SHALL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES.
5.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. Certain jurisdictions may limit the limitation of liability for incidental, consequential or certain other types of damages, but the parties agree that such provisions shall be enforced to the extent permitted by law.
6. TERM AND TERMINATION
6.1 Term of Engagement. The initial term of each engagement shall begin on the date that the Company receives the initial fees due to Company pursuant to the Service Agreement and continue for the period specified therein (“Initial Term”).
6.2 Auto Renewal of Services. CLIENT UNDERSTANDS AND AGREES THAT COMPANY’S SERVICES ARE SUBSCRIPTION BASED AND THE CONTRACT FOR SERVICES SHALL AUTOMATICALLY RENEW AT THE END OF THE INITIAL TERM FOR SUCCESSIVE PERIODS EQUAL TO THE LENGTH OF THE INITIAL TERM (EACH A “RENEWAL TERM”) AT THE SAME FEE AS ESTABLISHED FOR THE INITIAL TERM UNLESS EITHER PARTY PROVIDES WRITTEN NOTICE TO THE OTHER PARTY OF ITS ELECTION TO TERMINATE THE SERVICE AGREEMENT PRIOR TO THE END OF THE THEN-CURRENT TERM. Notice of non-renewal may be effected (i) by sending a request not to renew via U.S. mail to “ReputatioDefender, Inc., Attention: Customer Support, 1001 Marshall Street, Redwood City, CA 94063, or (ii) by calling Customer Support atand receiving an email confirmation of non-renewal.
6.3 No Termination or Cancellation for Convenience. Client has contracted to purchase the Services for the Initial Term stated in the Service Order and may not terminate or cancel the Services early. Even if the Client later decides not to accept the Services prior to the end of the Term, the Client will remain legally responsible to pay all the fees set forth in Service Agreement.
6.4 Effect of Termination. Upon termination: (a) all rights granted to Client under this Agreement, including Client’s right to use the Services, shall immediately cease; (b) Company shall stop performing all Services and may, at its discretion, remove materials from the Internet published by Company as part of the Services and allow any Domain Names purchased as part of the Services to lapse; and (c) Client shall immediately pay to Company all fees that remain due under this Agreement. Sections 2.3 (ownership), 3, 4, 5, 6, 7, 8, and 9 shall survive any termination or expiration of this Agreement.
7. CONFIDENTIALITY AND PRIVACY
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, the techniques, methods, or strategies Company uses in connection with performing the Services, user names and personally identifying information and other data (except what has been provided for purposes of publishing content). However, Confidential Information shall not include any information that; (i) is provided by Client and is published or otherwise disclosed, in Company’s discretion, in connection with the Services; (ii) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (iii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iv) is received from a third party without breach of any obligation owed to the Disclosing Party; or (v) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the security and confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Engagement Letter to any third party without the other party’s prior written consent other than to: (i) its legal counsel and accountants; and (ii) to potential investors, lenders, purchasers of either party’s business, or underwriters in connection with their due diligence in future financings, acquisitions mergers or public offerings of either party.
8. ARBITRATION, FORUM AND GOVERNING LAW
Any claim, dispute or controversy of whatever nature (“Claim”) arising out of or relating to this Agreement shall be resolved by final and binding arbitration. The arbitration shall be conducted by and submitted to a single arbitrator selected from and administered by the San Francisco, California office of JAMS (“JAMS”), in accordance with its then-existing Comprehensive Arbitration Rules & Procedures. The arbitration hearing shall be held in San Francisco, California, but the parties agree that all proceedings and hearings prior to the final hearing may be handled via mail, telephone or videoconference. This Agreement shall be governed by and construed under the laws of the state of California, consistent with the Federal Arbitration Act, without reference to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Arbitrator shall be authorized to award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, the parties understand that they are waiving certain rights and protections which may otherwise be available if a Claim were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding; and a right to invoke formal rules of procedure and evidence.
9. GENERAL PROVISIONS
9.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnification). All notices shall be sent to the addresses set forth on the applicable Service Agreement, which may be updated from time to time upon written notice to the other party.
9.2 Export Compliance. The Services, other technology Company may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Client shall not permit access to or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
9.3 External Forces. Company shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters. In addition, Client acknowledges that the Services depend heavily on privacy law in the United States, the various States and Territories, and other jurisdictions. The law can and will change in the future and such changes are outside the control of the Company. We cannot predict the impact of future changes in the law. Some legal changes, including but not limited to legislation or judicial interpretation, may render it more difficult or impossible for us to perform the services offered.
9.4 Waiver and Severability. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
9.5 Amendments and Assignment. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties. Client may not assign any this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Company.
9.6 Relationship of the Parties. Company’s relationship with Client is that of an independent contractor, and neither party is an agent or partner of the other. Client does not have, and will not represent to any third party that it has, the authority to act in the name or on behalf of or otherwise to bind the Company in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).
9.7 Entire Agreement. These Standard Terms of Service along with the related Service Agreement or Order Form, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement any accepted Service Agreement or Order Form, the terms of such Service Agreement or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client generated purchase order or other order documentation (excluding the accepted Service Agreement or Order Form shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.