This TERMS OF SERVICE AGREEMENT (the "Agreement") is an agreement between you and Jay Beaton Consulting, LLC ("JBC" or "we"). Please read the following terms and conditions carefully. These terms and conditions govern all use of the Miradem.com website, websites created using the Miradem software (the "Miradem Site"), and all content, services and products available at or through these websites, (collectively, the "Website"). The Website is owned and operated by JBC. Your access to and use of the Website requires your full compliance, without modification, of all of the terms and conditions contained herein and all other operating rules, and policies and procedures (collectively, the "Terms"), as they may be amended from time to time by JBC without prior notification to you. By accessing or using any portion of the Website, you agree to be bound by this agreement. If you do not agree to all the terms and conditions of this Agreement, then you may not access or use the Website.
- Your Miradem Site. If you create or operate a Miradem Site, you are fully responsible for maintaining the security of your account, Miradem Site, all activities occurring under your account, and any other actions taken in connection with the Miradem Site. You must immediately notify JBC of any unauthorized use of your account or Miradem Site, or any other related security breaches. JBC is not liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
- Content. Certain portions of the Website may allow you to post, upload, or make available by any other means text, graphics, audio files, video files, computer software, links, or any other material posted or made available (collectively, the "Content"). You agree that JBC is not responsible for any Content posted, uploaded, or made available by you or a third party acting under your direction and any harm resulting therefrom. JBC does not endorse any Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any Content. We reserve the right to decide whether Content is appropriate and complies with the Terms, and may remove such Content and/or terminate your access for uploading Content in violation of the Terms at any time without prior notice. JBC will have no obligation to provide a refund of any amounts previously paid.
You agree not to post, upload, submit, transmit, download, copy, use, install, or make available by any other means on the Website any Content that:
- infringes or violates someone else's rights, including but not limited to copyright, patent, trademark, trade secret, privacy, or publicity, or otherwise violates the law;
- impersonates another person;
- knowingly includes false or inaccurate information;
- your employer has intellectual property rights in without either (i) receiving permission from your employer to post or make available the Content, including but not limited to any software, or (ii) securing from your employer a waiver of all rights in or to the Content;
- does not fully comply with any third-party licenses, or does not successfully pass through to end users any required terms;
- contains any viruses, worms, malware, Trojan horses, or any other harmful or destructive Content;
- contains spam, is machine or randomly generated, or contains unethical or unwanted commercial Content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the Content (such as spoofing);
- is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, giving rise to civil liability, violate any law, or is otherwise inappropriate.
By submitting Content to JBC for inclusion on your Website, you hereby grant JBC a world-wide, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, perform, modify, adapt, publish the Content solely for the purpose of displaying, distributing and promoting your Miradem Site. If you delete Content, JBC will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately removed.
- Payment and Renewal.
- General Terms. You agree to pay JBC the monthly or annual subscription fees agreed upon for service as outlined in the Proposal for Creation of Miradem Site executed separate to this Agreement. Service fees are not refundable.
- Automatic Renewal. Unless JBC receives notification to cancel prior to the end of the subscription period, your service subscription will automatically renew and you authorize us to charge the then-applicable annual or monthly subscription fee, plus any taxes, to your credit card we have on file, to issue an invoice for payment, or use any other payment mechanism we have on record for you. Service can be canceled at any time in the Configuration section of your site's administrative interface.
- Restricted Use. You may not use your Miradem Site to substantially replicate products or services offered by JBC, including but not limited to, the republication of Miradem content or creating a separate publishing platform. If JBC believes, in its sole discretion, that you violated or attempted to violate the Terms, JBC has the right to terminate your use or access to the Miradem Site without prior notice.
- Hosting. Subject to this Agreement, including your payment of all applicable fees, (a) JBC shall use reasonable commercial efforts to provide you with hosting services, and (b) at all times when using the hosting services, you agree to comply with JBC's then-current Agreement. Hosting services include the following:
- Hosting your Miradem Site or sites (the "Hosted Site") on the Miradem infrastructure, in a manner consistent with industry standards;
- Regular backup of your Miradem Site data; and
- Unlimited traffic, unlimited bandwidth, and unlimited storage.
- Content Posted on Other Websites. We have not and cannot review the Content made available through third party websites and webpages to which Miradem.com links and that link to Miradem.com. JBC does not have any control over third party websites and webpages, and is not responsible for their contents or their use. By linking to a third party website or webpage, JBC does not represent or imply that it endorses such website or webpage. You are responsible for taking the necessary precautions to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. You expressly acknowledge and agree that JBC is in no way responsible or liable for any such third-party websites or webpages.
- Copyright Infringement and DMCA Policy. We respect intellectual property rights of others, and expect you to do the same. If you believe any Content violates your copyright, you are encouraged to notify JBC at firstname.lastname@example.org. If we receive a valid notice of intellectual property infringement, we will take all steps to promptly remove or disable access to the allegedly infringing Content. We also terminate the accounts of repeat infringers in appropriate circumstances. In the case of such termination, JBC will have no obligation to provide a refund of any amounts previously paid to JBC.
- Intellectual Property. The Website contains content owned or licensed by JBC ("JBC Content"). JBC Content is protected by copyright, trademark, service mark, patent, trade secret, and other laws, and, as between you and JBC, JBC owns and retains all rights in the JBC Content and the Website. You will not remove, alter or conceal any copyright, trademark, service mark, patent, trade secret, or other proprietary right incorporated in or accompanying the JBC Content or Website and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the JBC Content or Website. All right, title, and interest in and to any copyright, trademark, service mark, patent, trade secret, or other proprietary right remains solely owned by JBC.
JBC, Miradem, Miradem.com, the Miradem logo, and all other trademarks, service marks, graphics and logos used in connection with Miradem, or the Website are trademarks or registered trademarks of JBC or JBC's licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of JBC. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks, and/or trade dress of JBC, and may not be copied, imitated or used, in whole or in part, without prior written permission from JBC.
JBC owns all right, title, and interest to any customizations made by JBC to your Website for the purposes of, without limitation: (i) marketing or branding use; or (ii) offering such customizations, or a modification or adaptation thereof, to other current and future customers of JBC as a further customization or feature.
- Attribution. JBC reserves the right to display attribution links such as "This is a Miradem wonderful community" in your Miradem Site footer. Footer credits may not be altered or removed regardless of upgrades purchased.
- Domain Names. If you are registering a domain name, using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers ("ICANN"), including their Registration Rights and Responsibilities.
- Changes. JBC reserves the right, at its sole discretion, to modify or replace any part of this Agreement or any of the Terms without prior notice. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement or the Terms constitutes acceptance of those changes. JBC may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to this Agreement and the Terms.
- Termination. JBC may terminate your access to all or any part of the Website at any time, without cause or notice, effective immediately. If you wish to terminate this Agreement or your Miradem Site, you can do so in the Configuration section of your Miradem Site's administrative interface. All terms and conditions of this Agreement shall survive termination, including but not limited to, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
- Disclaimer of Warranties. THE WEBSITE AND JBC CONTENT IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER JBC NOR ANY OF ITS EMPLOYEES, MANAGERS, OFFICERS, OR AGENTS (COLLECTIVELY, THE "JBC PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE WEBSITE OR (B) JBC CONTENT. IN ADDITION, THE JBC PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
BY ACCESSING OR USING THE WEBSITE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
THE JBC PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OF CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
- Limitation of Liability. Under no circumstances will JBC, its suppliers or licensors, be liable for any of the following arising in connection with this Agreement even if we have been advised of the possibility of such damages: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to JBC under this Agreement during the one (1) month period prior to the cause of action. Further, our aggregate liability arising with respect to this Agreement will not exceed USD $100 or the total price of the subject services or products paid or payable to you whichever is less. The foregoing shall not apply to the extent prohibited by applicable law.
- General Representation and Warranty. You represent and warrant that (i) your use of the Website will be in strict accordance with this Agreement, and all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Website will not infringe or misappropriate the intellectual property rights of any third party.
- Exclusive Remedy. Any term or condition of this Agreement to the contrary not withstanding, where JBC warrants the Website or JBC Content, either under this Agreement or as a matter of law, if there is a breach of such warranty, your only and exclusive remedy shall be to cease using the Website and JBC Content, and/or cancel your service.
- Indemnification. You agree to defend, indemnify, and hold the JBC Parties, its contractors, and licensors, and their respective directors, officers, employees and agents harmless from and against any claims, liabilities, losses, and expenses, including without limitation, reasonable attorneys' fees and costs, arising out of or in any way connected with this Agreement or any of your Content or use of the Website.
- Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the substantive laws of North Carolina, without any reference to conflict-of-laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
Any dispute, controversy or difference which may arise between the parties out of, in relation to or in connection with this Agreement is hereby irrevocably submitted to the exclusive jurisdiction of the applicable state and federal courts located in Chatham County, North Carolina, and to submit to the personal jurisdiction of the courts located in Chatham County, North Carolina for the purpose of litigating all such disputes.
- Entire Agreement. The entire Agreement between the parties with respect to the subject matter hereof is embodied in this Agreement and no other agreement relative hereto shall bind either party herein. Your rights of whatever nature cannot be assigned nor transferred to anybody, and any such attempt may result in termination of this Agreement, without liability to us. However, we may assign this Agreement to any person at any time without notice.
- Severability. In the event that any term or condition of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such term or condition shall be deemed to apply only to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms.
- Non-Waiver. No waiver of any of the terms and conditions in this Agreement will be deemed a further or continuing waiver of such term or condition or any other term or condition.
- Any amendment to or waiver of this Agreement must be made in writing and signed by an authorized executive of JBC or posted by JBC on the Website.
- This Agreement does not confer any third party beneficiary rights.