TERMS AND CONDITIONS
(1) These Terms of Service Agreement ("Agreement") is entered into by and between Site Matrix LLC (hereinafter "Company") and you, and is made effective as of the date of acceptance of this Agreement. This Agreement sets forth the general terms and conditions pertaining to the Services provided by the Company. The term "Service" nor "Services" shall mean parking and domain monetization ("Services"). Any and all amendments or supplements to this Agreement shall only apply if they are specifically accepted by Company. The contract's fulfillment or rendering of Services does not constitute the Company's consent to such Terms and Conditions. The terms "we", "us" or "our" shall refer to the Company. The terms "you", "your", "User" or "customer" shall refer to any individual or entity who accepts this Agreement or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
(2) The parties acknowledge and agree that the Company engages or contracts with third parties,including, but not limited to, advertising partners and parking companies, ("Third Party Contractors") and, therefore is obliged to pass on a variety of rules, regulations and other obligations to the customer. For the purpose of contract fulfilment (monetization), it may therefore be necessary for the Company, to disclose customer's stored data (such as name, first name, company, address, email, telephone number and/or other appropriate data) to the relevant Third Party Contractors for the purpose of the optimized monetization of your domain.
2. Price and payment or else credit items
(1) In consideration of the Company's Services to you, you shall pay to the Company a fee of fifteen percent (15%) of the gross revenue from the monetization resulting from the Company's Services ("Company's Fee"). You agree and authorize the Third Party Contractors used by the Company and, therefore, the Third Party Contractors shall deduct the Company's Fee from your earnings and deliver the Company's Fee directly to the Company as agreed upon between the parking company and the Company. If the Company is unable to collect the Company's Fee from the Third Party Contractors, the Company shall issue an invoice directly to you. You agree and accept that such invoices shall be paid in full no later than the 15th day of the month following the month in which the revenue was generated (for example, if the Company invoices you for revenues generated in October, you must pay such invoice no later than the 15th of November of the same year).
(2) It is your sole responsibility to withhold any and all local, state, federal, and foreign taxes on payments that you receive pursuant to this Agreement and the Company's Services, and you agree to indemnify the Company for any claim or assessment of taxes and any costs or damages relating thereto. The Company is entitled to offset any refunds you are obligated to provide under this Agreement against any payments that would otherwise be due to you. Fraudulent, questionable, or low-quality traffic will not be counted when determining your payments due under this Agreement. This determination is and will be made by the Company in its sole discretion.
(3) The Company will perform its obligations hereunder in a timely manner, in good faith and with all due skill and care. However, you hereby acknowledge and agree that the Company cannot guarantee future earnings or performance.
(4) The customer can only offset counter-claims with undisputed or legally established claims. The same applies for any other rights to refuse performance. The customer is entitled to assert a lien only against counter-claims derived from the same contractual relationship.
(5) While most revenue throws through third parties, from time to time Company may monetize traffic through sources that send funds through to the company directly and it will be the Company that pays the customer. When this happens, Company shall pay the customer net 45, 85% of the proceeds. For example, for the month that ends on October 31st, the 85% to the customer because due and payable on December 15th of the same year.
3. Performance obligations / Warranty / Rights of the Company
(1) Company may guarantee an annual average availability of its Internet web server of at least 97 percent. Excluded from the aforementioned guarantee are times when the web server is not accessible over the Internet due to technical or other problems that are beyond the control or responsibility scope of the Company (e.g. force majeure, third party fault, DDOS). A continuous availability of data is not herein guaranteed, in as far as scheduled time for technical work (e.g. maintenance) is necessary within a reasonable extent (regularly up to 1% of the total running time). Necessary operational downtime for preventive maintenance work will be announced as early as possible.
(2) The Company will immediately rectify performance problems (such as their technical facilities) within the reasonable framework of existing technical and operational possibilities. The customer is obliged in the event of identifiable disorders to immediately report such faults to the Company in writing.
(3) If the provision of the Services is disturbed by circumstances that are within the Company's responsibility, the customer must upon recognizing this, immediately submit a written complaint to the Company. The customer has a right to terminate this Agreement only if on the basis of the Company's violation of any of the terms and conditions set forth herein if the customer has notified the Company in writing, clearly set forth the alleged Company's violations, and granting the Company a grace period of two weeks for the provision of the contractual services, and this period has elapsed. Also a contract for the monetization of individual domains can be rejected if there is reasonable suspicion that this violates legal provisions, third party rights or legitimate interests of the Company (e.g. Spam Quality).
(4) Company reserves the right to, any time to and at its discretion, alter one or more aspects of the landing page, in particular keywords, images or the color scheme. In addition, changes in the keyword and related terms can be made by the Third Party Contractors of the Company. You acknowledge and agree that you must ensure that your domains do not violate the rights of third parties including, but not limited to, those rights pertaining to the adjustment of the keywords or color schemes. You shall hold the Company harmless from and against all liability if an adjustment of keywords or color schemes, either through an automated or manual adjustment, results in 1) a violations of third party's right; or 2) a change in your domain's value.
(5) You acknowledge and agree that (a) domain names can be banned, and therefore cannot be monetized, for reasons out of the Company's control; and (b) domain names can be smart priced for reasons out of the Company's control, which can cause a reduction in earnings. You acknowledge and agree that the Company shall not be held liable for and you hereby release the Company from and against any and all liability, demands, claims, costs, losses, damages and expenses, known or unknown, direct or indirect, resulting or arising from your domain name being banned or smart priced.
4. Duties and obligations of the customer / Responsibility
(1) The performance obligations of the customer are as follows:
You represent and warrant that the use of the Services, including any content, domain or information you submit, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations. You represent and warrant that you will:
(2) You warrant that the data submitted to the Company is correct and complete. In the event of any changes, you must immediately notify the Company. On the Company's request, you agrees to confirm the current accuracy of the submitted data.
(3) You are solely responsible for ensuring that your selected domains are not in violation of any applicable local, state, national and international laws, rules and regulations, the rights of others or offend common decency.
(4) You, hereby, acknowledge, accept and agree to the applicability of the rules of ICANN, particularly in the event of disputes over the domain due to violation of trademarks, names and other property rights (Uniform-Domain-Name-Dispute-Resolution-Policy).
(5) You are under the obligation to hold passwords, as well as other access codes and/or personal passwords obtained from the Company for the purpose of access to the Services, strictly confidential and to protect them from unauthorized access. All statements that are made using such access code shall apply and shall be deemed as executed by the customer. You, therefore, accept full responsibility pertaining to the unauthorized use of passwords. You must immediately inform the Company once you become aware that an access code or a personal password is known to an unauthorized third party. In addition, you are required to immediately change the password if you have reason to suspect that a third party could have obtained such information. Moreover, for security reasons, the personal password should also be altered at regular intervals. In the event that a personal password is repeatedly incorrectly entered or of reasonable suspicion of unauthorized use of a user's access data by a third party, Company has the right to restrict network access. The Company will notify your as soon as possible in case of the implementation of such restriction.
(6) In the event of a significant breach of these obligations and obligations (in particular breach of third party rights, spam, or quality defects) Company is entitled, at its sole discretion, to immediately suspend, in whole or in part, the Services or monetization of your domain. You acknowledge and agree that the Company shall not be held liable for damages, claim, demand, expense or responsibility resulting from the Company's implementation of a whole or partial block of domains that contains, at Company's sole and absolute discretion, offensive, discriminatory or otherwise legally objectionable content. Company will inform you immediately of such action and request the removal of the unlawful domains or request that you demonstrate, and where necessary, prove their legal compliance. The same applies in the event that the blocking of a domain by the Company is made in accordance to official orders. Company will lift the blocking as soon as the suspicion of illegality is nullified.
(7) In the event of a substantial breach of obligation, Company is also entitled to terminate the contract without notice. Moreover, you acknowledge and agree that the Company shall not be liable for damages, claim, demand, expense or responsibility resulting from the Company's permanent block of domains with offensive, discriminatory or otherwise legally objectionable content. Before adopting any of the aforementioned measures Company will notify you as to the breach of your obligations and set a reasonable deadline for their rectification. In the event that, at the Company's sole and absolute discretion, it is deemed unacceptable for Company to grant a formal notice period due to the gravity of the breach, the Company may implement the concerned measure immediately and will immediately inform the customer. The Company shall also notify you in the event the block of the domain results from an ordered issued by government or a court of competent jurisdiction.
(8) You shall indemnify, defend and hold harmless the Company and its parent and its respective subsidiaries and their respective officers, directors, shareholders, affiliates, employees, agents, successors and assigns ("Company's Parties") at its expense, from and against any and all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, and expert witness fees) incurred by the Company's Parties, known or unknown, contingent or otherwise, directly or indirectly arising as a result of or in connection with: (1) this Agreement (including without limitation, breach of any warranties, representations, covenants or obligations and furnishing incomplete or incorrect information or content); (2) your violations or alleged violations of any applicable local, state, national and international laws, rules and regulations; (3) all third party claims based on your breach of duty; and (4) the violations or alleged violations of any provision of this Agreement.
(9) You represent and warrant that you shall not allow yourself or a third party to intentionally or negligently do the following:
(10) You acknowledge and agree, upon becoming aware of your violations or upon the request from the Company, to no longer participate in Internet Domain Parking or the Services with the concerned domain. You acknowledge and agree to reimburse the Company for any damages or costs that result from the violation of the aforementioned rules.
5. Ownership of Related Terms and Data
Any optimization techniques used by Company, any related terms or query strings placed on parking pages and any data related to the Company activities are owned solely by the company and are expressly prohibited from being copied, transferred or used outside of the Company's system. Customer understands that if they decide to stop doing business with Company that they are not allowed to copy the settings and port them to a competitive service or their own service.
(1) You hereby acknowledge that you understand and accept all the legal data protection regulations in this Agreement. You understand that the Company for the performance of this Agreement must store personal data (e.g. name, first name, company, (company-) address, email / phone contact). For the purpose of the contract fulfilment (monetization), stored data (name, first name, company, (company-) address, email/phone contact) can be disclosed to Third Party Contractors, particularly to the primary advertising suppliers and parking companies. Your hereby grant your consent for the disclosure of the data. You may at any time withdraw your consent by providing express written notification sent to: firstname.lastname@example.org. Any further disclosure of the data shall not take place unless required by judicial or official order.
(2) You acknowledge, understand and agree that data protection of data transmission in open networks like the Internet, cannot be guaranteed and that it is possible, due to the structure of the Internet, that other third parties and institutions, out of the control of the Company, ignore or disregard the data protection.
(3) You acknowledge, understand and agree that that unencrypted data transmitted over the Internet is not secure and can be taken note of and altered by third parties, other participants in the Internet are among others technically able to gain unauthorized access to the network security and thereby intervene and control the message traffic. Non-encrypted transmissions of personal data or other classified material is not recommended.
Both parties shall not disclose any confidential information to which they have access to in connection with this Agreement and the Services, or any information derived therefrom, including, but not limited to, those designated as confidential or considered as commercial, trade or industrial secret - and to neither record nor distribute or otherwise exploit such confidential information. In particular, all developmental and technical information and all other non-public information are to be kept confidential. Through appropriate contractual agreements with employees and/or other representatives it is further to be ensured that these also for - an unlimited time - refrain from any disclosure or other unauthorized use of such confidential information. The non-disclosure also includes the prevention of unauthorized access to information. The confidentiality obligation shall survive the termination of the contractual relations.
(1) You shall not disclose any of the Confidential Information ito which they have access to in connection with this Agreement and the Services, or any information derived therefrom, including, but not limited to, those designated as confidential or considered as commercial, trade or industrial secret. You agree:
(2) This Agreement applies to all Confidential Information presently, previously or hereafter supplied to you, whether disclosed orally or in writing. You hereby agrees to indemnify the Company against any and all losses, damages, claims, expenses, and attorney's fees incurred or suffered by the Company as a result of a breach of this Agreement by you or your representatives.
(3) You and your Representatives shall use the Confidential Information solely for purposes pertaining to the Services provided by the Company or the relationship with the Company and shall not in any way use the Confidential Information to the detriment of, or to compete with or provide the Services of, the Company. Nothing in this Agreement shall be construed as granting any rights to you, by license or otherwise, to any of the Confidential Information.
(4) Subject to the terms of this Agreement, each Party continues to own its respective items of intellectual property, including its patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by the Company to you, or by any disclosure of any confidential information to you under this Agreement. You agree that you will not create or attempt to create a copy, derivative work, substitute service or substitute product using the Services provided under this Agreement or any information related thereto.
(5) You shall not and shall not allow any third party to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code in any way related to the Services provided under this Agreement or any other technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation of the Company and its Third Party Contractors.
8. Limitation of liability and warranty
(1) IN NO EVENT WILL THE Company OR ANY THIRD PARTY BENEFICIARY TO THIS AGREEMENT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS OR EARNINGS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE Company OR ANY THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE Company FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION; FORCE MAJEURE; SERVICE DELAYS OR INTERRUPTIONS; DENIAL OF SERVICE; NON-DELIVERY OR MISDELIVERY OF DATA; ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION PROVIDED UNDER THIS AGREEMENT; AND INFRINGEMENT. ANY LIABILITY OF THE Company TO YOU RELATING TO THE PERFORMANCE OR ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT IS LIMITED TO THE GROSS REVENUE RECEIVED AND RECOGNIZED BY THE Company WITH RESPECT TO THE DOMAIN(S) MONETIZED BY THE Company IN THE ONE (1) MONTH PRECEDING YOUR CLAIM AGAINST THE Company. YOU AGREE THAT YOU AND THE Company HAVE RELIED ON THIS PROVISION IN ALLOCATING RISK AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SURVIVES ANY TERMINATION OR EXPIRATION OF THE AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY SORT RESULTING FROM TERMINATING THIS AGREEMENT IN ACCORDANCE WITH ITS PROVISIONS, UNLESS SPECIFIED OTHERWISE.
(2) ALL PRODUCTS, SERVICES, INFORMATION, AND DATA PROVIDED TO YOU UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "WHERE IS" AND WITHOUT ANY WARRANTY OF ANY KIND. THE Company EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE QUALITY AND AVAILABILITY OF TECHNICAL SUPPORT. THE Company ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH ACCESS TO OR USE OF SERVICES UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, THE Company DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE SERVICES AND PARKED DOMAINS WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR SIMILAR SOFTWARE; THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE SERVICES OR PARKED DOMAINS WILL BE FREE OF ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; THAT THE FUNCTIONS OR SERVICES PROVIDED BY THE Company WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THEREWITH WILL BE CORRECTED; THAT THE SERVICES PROVIDED BY THE Company WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT THE SERVICES PROVIDED BY THE Company UNDER THIS AGREEMENT WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA; OR THAT YOU WILL RECEIVE NOTIFICATIONS, REMINDERS OR ALERTS FOR ANY EVENTS FROM THE Company. YOU ACKNOWLEDGE THAT THE Company CANNOT AND DOES NOT CHECK TO SEE WHETHER ANY SERVICES OR YOUR USE OF THE SERVICES UNDER THIS AGREEMENT INFRINGES THE LEGAL RIGHTS OF OTHERS.
(3) You at Your own expense will indemnify, defend and hold harmless the Company and its employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding brought against the Company by You or another party based on or arising from any claim or alleged claim arising out of the Services or your Domains serviced by the Company; any claim or alleged claim arising from this Agreement; a third party claim that Your Domain(s) infringe any copyright, trade secret or trademark of a third party; or Your use of the Services provided under this Agreement in any manner inconsistent with or in breach of this Agreement. You will not enter into a settlement or compromise of any such claim without the Company's prior written consent, which shall not be unreasonably withheld. Your obligation under this section extends to any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by the Company in connection with or arising from any claim, suit, action or proceeding.
(4) You acknowledge and agree that the Company shall not be liable for the incorrect functioning of the infrastructure and communication of the internet or information provided over it (neither for its completeness, accuracy or completeness nor that they are free of rights of third parties). The Company is not liable for use outages that are caused by third parties outside its control.
(5) You understand, acknowledge and agree shall not be liable for the transmission speed on the Internet as well as the content provided therein. The Company is in particular not obliged to examine the your domains for possible violations of law, domains are the sole responsibility of the customer. In the event of infringement of legal rights, the Company is entitled to terminate the concerned domain at the expense of the customer, even if no claims are filed or alleged against the customer. The Company will inform the customer of any such measure as soon as possible.
(6) The Company does not guarantee specific revenue, click rates or click prices which you hereby recognizes fluctuate dependent upon market forces.
9. Term and termination
(1) The Agreement shall continue in effect until otherwise terminated pursuant to the terms hereof ("Term"). Notwithstanding the foregoing, You acknowledge that the Company may change the source of content displayed on your Domains at any time.
(2) The customer is granted the right to terminate the contract relationship at any time without cause with a WRITTEN termination notice period of 14 days.
(3) Notwithstanding the foregoing, the Company may terminate this Agreement without notice as otherwise set forth in this Agreement and if:
(4) If the Agreement is terminated, whether by you or the Company, you acknowledge and accept that you shall still be obligated to pay all Company's Fees for services rendered by the Company (prior to and after the termination).
10. Representations and Warranties.
(1) Each Party represents and warrants that: (1) they each have all requisite power and authority to legally execute, deliver and perform their obligations under this Agreement, particularly including, your ownership and/or control of the Domains being serviced by the Company; (2) this Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against each Party by the other Party in accordance with its terms; and (3) the execution, delivery, and performance of this Agreement by you and the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate any provision of law, rule, or regulation; any order, judgment, or decree; any provision of corporate by-laws or other documents; or any agreement or other instrument.
(2)You represent and warrant that each of your Domains serviced by the Company under this Agreement is duly registered; and either that You are the exclusive and official registrant for each Domain or that you are expressly and exclusively authorized by the official registrant of each Domain through a valid and enforceable written agreement to authorize the Company to provide the services contemplated under this Agreement as of the date and during the term such domain name remains a Domain. You further represent and warrant that you will use the information and services provided by the Company in a manner that complies with any and all applicable laws.
11. Place of performance and court of jurisdiction
(1) This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Puerto Rico, without regard to Puerto Rico's laws on the choice of law. The Parties agree that any action relating to this Agreement is subject to the exclusive jurisdiction of the federal and state courts of the Commonwealth of Puerto Rico, and further agree to proper venue in those courts. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys' fees, costs and disbursements incurred in connection therewith.
11. Final Provisions
(1) Any notice or other communication required or permitted to be delivered to the Company under this Agreement shall be in writing and deemed properly delivered by certified mail, return receipt requested, to 1413 Ponce de Leon Ave., 4th Floor, San Juan, PR 00909, USA, attn: Legal Department. Any notice or other communication required or permitted to be delivered to You by the Company under this Agreement shall be deemed properly delivered by e-mail to the contact address that You have provided to the Company.
(2) This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(3) The Parties agree that, during the term of this Agreement, the Company may revise the terms and conditions of this Agreement, including but not limited to the services provided under this Agreement. If You disagree with any proposed revision to this Agreement, You may terminate this Agreement by providing the Company with written notice of your intent to terminate within thirty (30) days of the date of notice of the revision. You agree that your continued acceptance of Services under this Agreement following any revision constitutes your acceptance of the revision.
(4) The Parties shall attempt to resolve any disputes concerning this Agreement through the services of a mutually-acceptable arbitrator prior to filing suit. Notwithstanding the foregoing, the Company retains its right to seek injunctive relief for breaches that would irreparably injure the Company.
(5) In addition to any other remedy at law or equity for a breach of any provision of this Agreement, the Company retains the right to terminate this Agreement with You in response to any breach without prior notification or warning, along with forfeiture of any moneys due You.
(6) You and the Company are independent contractors, and nothing in this Agreement creates or will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the Parties. You have no authority to make or accept any offers or representations on behalf of the Company.