Webtricity

TERMS OF SERVICE

Thank you for using webtricity.com and our related applications and services (collectively, the “Website”).

By using the Website, you are agreeing to these Terms of Service (the “Terms”) and the other polices described in these Terms including our Privacy Policy which is available at webtricity.com/privacy-policy (the “Privacy Policy”).

For clarity, all references to “us” (and similar words such as “we” and “our”) mean Banyan Theory, LLC, a Kansas limited liability company (regardless if they are capitalized), and all references to “you” mean the individual using the Website (regardless if the word is capitalized). However, if you are using the Website on behalf of a business entity, then “you” means both you and your business entity.

If you do not agree to these Terms, then do not use the Website.

Use of the Website

Provision

You may not use the Website if you are under 13 or if we have terminated your right to use of the Website. Additionally, you may only sign up for an account if you are based in the United States.

We will use commercially reasonable efforts to ensure the Website is available at all times, but we shall not be liable for any time during which the Website may be down. We may add to, modify, or terminate, portions of the Website at any time for any reason.

Prohibited Uses
You may not do anything on the Website directly or indirectly that: (a) is illegal or violates another contract; (b) will harm the Website, including without limitation using bots, scrapers, harvesters, or other automated systems; (c) constitutes reverse engineering, decompiling, disassembling, or otherwise attempting to discover the source code, object code, or underlying structure or algorithms, of the Website; or (d) which may be deemed unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or in violation of these Terms, any laws or regulations, or any other party’s rights.

Third-Party Sites If you click on any links that take you away from the Website, then you use those other sites and services at your own risk.

Accounts & Sites

User Accounts
We may allow you to create a user account to use the Website. If you create an account, then we may request information about you as described in these Terms and also as provided in our Privacy Policy (for a description of how we use that information, please review our Privacy Policy).

After you create an account, you may be granted access to one or more Sites (defined below). With respect to each Site to which you are granted access, your account will be assigned a role (such as Owner, Manager, General User, or Third-Party User) and each role will have different permission sets.

Creating Sites
After you create an account, you may be allowed to create, edit, publish, and manage, a website (each a “Site”). Although you can create an account for free, you cannot create a Site without paying for the Site (see the payment terms below).

Inviting Others to Access your Site After creating a Site, you may invite other users to access your Site and assign each invited user to a specific role such as Owner, Manager, General User, or Third-Party User (which can be changed later). Each invited user must create an account before being able to access your Site.

Please note that the role you assign to each invited user will dictate what they can and cannot do to your Site and the data and information they will be able to access within your Site. You should assign roles carefully.

Transferring Your Site
If you create a Site and later decide that someone else should own the Site, then you may transfer the Site to that other person or business, provided they consent to the transfer. To initiate this process, contact us. All Site transfers are subject to our transfer procedures and policies.

Domain Ownership & DNS Records
As between you and us, you will remain the owner of your domain (unless you and we agree otherwise in writing). Accordingly, it is your responsibility to pay all registrar fees associated with the domain; and to manage all domain settings (for example, DNS records). Further, we may change our software and hardware and, from time to time, may require you to modify your DNS records to ensure your Site remains visible on the internet.

Content

Content You Upload to Your Site
You may upload content to your Site, including text and images (“Your Content”).

By uploading Your Content, you are representing and warranting to us that you either own or have all rights to Your Content, including all intellectual property rights to Your Content. As between you and us, you shall be deemed the owner of all of Your Content.

By uploading Your Content, you grant us an irrevocable, worldwide, perpetual, royalty-free, sub-licensable, transferable, non-exclusive, license to access, use, process, copy, distribute, display, perform, and export, Your Content with or without attribution, as reasonably necessary: (a) to provide, maintain, and update the Website; (b) to display your Site on the internet; (c) to prevent or address service, security, support, and technical issues; and (d) as required by law. For clarification, the license above is perpetual and irrevocable, meaning your termination of your use of the Website does not terminate the license.

Please note that Your Content may be visible to invited users and other users of the Website depending on the settings chosen by you. We cannot guarantee that they will not violate your rights with respect to Your Content and we disclaim all liability for such uses by other users.

We may monitor, edit, or delete Your Content from the Website (or from your individual Site) if we determine that it is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or in violation of these Terms, any laws or regulations, or any other party’s rights.

Additionally, we have no obligation to retain any of Your Content.

Your Legal Disclaimers & Privacy Policy
You may choose to publish legal disclaimers to your Site. We encourage you to do so, especially when required by law or any regulatory body. However, we do not make any guarantees regarding what disclaimers you should include or how to include them, and we disclaim all liability with respect to the disclaimers you include and, if you don’t include any disclaimers, your failure to do so.

All of your Sites must have a privacy policy between you and the visitors of your Site, which at a minimum, must contain this language: “This website is developed on and hosted by webtricity.com (“Webtricity”). By using this website, you agree that we may collect personal information about you and your use of the website (which we may share with Webtricity) and that Webtricity may collect personal information about you and your use of the website. You can learn how Webtricity uses your personal information here: webtricity.com/privacy-policy.”

We may provide you with template language for your privacy policy, which you can choose to use, not use, or edit, in your sole discretion. However, we do not make any guarantees regarding what your privacy policy should say or regarding the template language we provide, and we disclaim all liability with respect to each of the foregoing.

You shall not take any action to remove or hide the privacy policy link from the footer of your Site or the required language above from your privacy policy page. You shall not take any action to remove or hide the “Powered By Webtricity” (or similar) link we may place in the footer of your Site unless agreed by us in writing.

The Website & Our Content
Except with respect to Your Content, the Website, including all design, templates, layouts, software, code, and other content on the Website (“Our Content”), are either owned by us, licensed to us, or likely owned by another individual or business, and may be protected by copyright, trademark, patent, trade secret, or other intellectual property laws. Your use of the Website does not grant any rights to you other than the right to use the Website for their intended purpose as outlined in these Terms.

However, while you have an active and fully-paid account with us, we grant you a license to display the Site, and Our Content on your Site which we make available for your use, on the internet.

Pre-Written Content
We may provide template language for you to use on your Site, including descriptions of your services and products; however, it is your sole responsibility to review and edit the template language to ensure it accurately describes your services and products and to ensure it does not violate any applicable laws or regulations. Please note that our template language is written by professional copywriters who are not necessarily licensed agents or experts in the insurance industry. We do not make any guarantees regarding the template language we may provide, and we disclaim all liability with respect to that template language.

Forms
You may be able to create web forms on your Site using the Website. If a website visitor submits one of your forms, we will include the submission in your account, and we recommend you check your account periodically to receive those submissions. We will also attempt to notify you via email that a submission has been made, but we cannot guarantee that you will receive those emails and we disclaim all liability for the failure of such notifications to reach you.

Security
We take security seriously and we encourage you to use two-factor authentication on your account. Additionally, we may request, install, renew, and otherwise manage, an SSL/TLS certificate on your Site.

Payments

Site Fees & Payment
By creating a Site, or by accepting the transfer of a Site to you, you are thereby agreeing to pay us all fees required for that Site as described on the Website, including all recurring monthly fees and all “add-on” fees selected by you (the “Fees”). If you transfer a Site to another user, and if that other user accepts the transfer in accordance with our standard transfer procedures, then you will no longer be liable for the fees associated with that Site.

You cannot create a Site without providing payment information to us as required in the Site creation process (for example, credit or debit card information). By providing that payment information, you (a) represent and warrant that you are authorized to use that payment information to pay the Fees; and (b) consent to us charging the Fees using that payment information.

If your payment information becomes invalid or is rejected, we will try to contact you to request new payment information. However, upon such occurrence, we may suspend or cancel your Site. Additionally, if we suspend or cancel your Site due to such occurrence, then we shall not be liable for any data or information in your Site that is also deleted, and we disclaim all liability for all of the same, including for perceived or actual loss of business.

All payments you make to us are non-refundable.

Additional Services
If you request additional services beyond those offered in your Site package, then we may provide the additional services and invoice you for the same. If you and we sign a separate agreement regarding additional services, then (a) that agreement shall control the relationship between you and us with respect to those additional services; and (b) these Terms shall control the relationship between you and us with respect to the services offered to you on webtricity.com.

Change to Fees
We may change the fees we charge for our services at any time, for any reason. If we change the fees, we will attempt to provide reasonable prior notice to you, however, we shall not be liable for any failure to provide prior notice to you.

Cancelling a Site
You may cancel a Site and the billing for a Site at any time, for any reason. The effective date of your cancellation will be the last day of the then current billing cycle. During the period between the date you cancel your Site and the effective date of the cancellation, your Site will remain accessible to the public unless you change your DNS settings to point them away from our servers.

We may cancel your Site at any time, for any reason. If we cancel your Site, we will attempt to provide reasonable prior notice to you, however, we shall not be liable for any failure to provide prior notice to you. The effective date of a cancellation by us will be the date indicated on the notice we provide to you (which may be the same date as the date the notice is delivered to you).

Obligations After Cancellation
After the effective date of a Site’s cancellation, we will use commercially reasonable efforts to maintain the Site in an archived format in our system for six months and, after that date, we may delete the Site and all content and settings on the Site, and we will not have any obligation to archive or otherwise save any of the same after that six-month period.

Additionally, your representations, warranties, and indemnifications in these Terms, shall survive the cancellation of your Site for a period of seven years.

Copyright/DMCA Policy

We respect intellectual property rights and it is our policy to comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe content on the Website or on a Site hosted by us infringes your copyright (or the copyright of someone which you are authorized to represent), please submit a written or digital DMCA Notice to our Designated DMCA Agent at: P.O. Box 4526, Olathe, KS 66063 or copyright@banyantheory.com.

Your DMCA Notice must include the following:

  1. Identification of the copyrighted work that you claim has been infringed;
  2. Identification of the material that is claimed to be infringing and specifically where it is located on the Website or Site we host;
  3. Sufficient information for us to contact you such as your address, phone, or email address.
  4. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law;
  5. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner; and
  6. An electronic or physical signature of a person authorized to act on behalf of the copyright owner.

Please note that under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.

Disclaimers

Except as expressly provided in these Terms, the Website is offered on an “as is” and “as available” basis without any warranties of any kind; and we expressly disclaim any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose, accuracy of data, and non-infringement.

We disclaim all liability for identity theft and other misuse of your identity or other content.

We do not make any guarantees regarding the operation of the Website, portions or all of which may be unavailable at times or terminated permanently. We do not vet content submitted by the users of the Website.

Limitation of liability

“Released Parties” means us and our parents, subsidiaries, affiliates, and licensors, and the owners, members, directors, officers, employees, contractors, and agents, of all of them.

The Released Parties shall not be liable to you or any other third party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover, or punitive damages, however caused, whether in contract, tort, or under any other theory of liability.

Subject to the other limitations in these Terms, the liability of any Released Parties arising out of or related to these Terms or our Privacy Policy, shall be limited to the sums paid by you to us in the 12-months immediately preceding the date on which your claim arose.

Any cause of action or claim which you may have which arises out of or relates to these Terms must be brought (if at all) within one year after the cause of action or claim accrued, otherwise, such cause of action or claim shall be permanently barred.

The limitations of liability in these Terms shall apply regardless of whether you or the other party bases your/its claim on contract, tort, statute or any other legal theory and whether we knew or should have known about the possibility of such damages.

Except as expressly provided in another contract between you and us, your sole remedy for dissatisfaction with the Website is to terminate your user account and/or your use of the Website.

Certain state laws do not allow limitations on implied warranties or the exclusion of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, and limitations, may not apply to you and you may have additional rights.

Indemnification

With respect to any suit, claim, investigation, or proceeding, arising out of your use of the Website, you shall indemnify the Released Parties (defined above) against all reasonable expenses including attorneys’ fees and costs, plus all damages of every kind, arising out of your negligent or intentional acts or omissions, your breach of or misrepresentation in these Terms, your submission of Your Content, or your other use of the Website.

Arbitration

If a dispute arises between you and us related to your use of the Website, these Terms, or our Privacy Policy, then the dispute shall be resolved by binding arbitration rather than in court (arbitration does not involve a judge or jury and court review of arbitration awards is limited). To initiate an arbitration, you must send a letter requesting arbitration and describing your claim to our registered agent on file with the Kansas Secretary of State. The arbitration proceedings shall be held in Johnson County, Kansas, USA. If this agreement to arbitrate is found not to apply to your claim, then both you and we agree that any judicial proceedings will be brought in accordance with the governing law and jurisdiction/venue provisions below.

Notwithstanding the agreement to arbitrate above, either you or we may assert a claim seeking injunctive or other equitable relief from the courts as necessary to stop unauthorized use or abuse of the Website or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration.

Class Actions Are Prohibited: All claims, including without limitation all arbitration claims, must be brought on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations, are not allowed.

Miscellaneous

Termination
Subject to the Site cancellation provisions above, you may terminate your use of the Website and/or your account at any time, for any reason (if you want to close your account, please contact us at the contact information below). However, you will remain liable for any damage you caused or may later cause to us or any part of the Website.

In our sole discretion, at any time, and with or without notice, we may: (a) suspend your access to or terminate your right to use of all, or parts of, the Website; (b) suspend your access to or terminate your user account, if applicable; and (c) suspend or terminate all, or parts of, the Website.

All provisions in these Terms which by their nature should survive termination of these Terms shall survive the termination.

Legal Terms
These Terms shall be governed by and construed in accordance with the laws of Kansas, excluding its conflict of law principles. For any dispute arising out of or related to these Terms or your use of the Website, you and we consent to jurisdiction in, and the exclusive venue of, the state courts in Johnson County, Kansas or in the U.S. District Court having jurisdiction over that county.

Waiver of Jury Trial
Each party waives all rights it may have to a jury trial in connection with any action or litigation in any way arising out of or related to these Terms or our Privacy Policy.

Entire Agreement
Except for agreements signed by you and us that contemplate additional services, these Terms contain the complete and entire agreement between you and us relating to the subject matter in these Terms and supersede all prior discussions and agreements (whether oral or written) by you and us relating to the subject matter in these Terms.

Waiver
The failure or delay by a party to exercise any right or remedy in these Terms shall not operate as a waiver of the same. The waiver by a party of a breach of any provision in these Terms shall not operate as a waiver of any subsequent breach. A waiver shall not be effective unless and until it is in written form and signed by the waiving party.

Severability
Each provision in these Terms shall be treated as separate and independent of the other provisions. Accordingly, if a court with competent jurisdiction declares a provision in these Terms unenforceable, then the provision should be limited to the minimum extent necessary so that it remains enforceable. If such amendment is not possible, then the unenforceable provision should be deemed removed from these Terms, but the remaining provisions shall remain in full force.

Assignment
These Terms and all rights and licenses granted to you, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment by you will be null and void.

Power to Amend These Terms

We may amend these Terms at any time by providing advance notice to you through the Website or through another communication channel. Your continued use after we provide the notice constitutes your consent to the amendment.

Contact

Except as otherwise required, all notices and communications that you may send to us shall be sent to us at support@webtricity.com.