Terms of Use
1. Legal Notices
a. This is a contract between you and Primero Systems, Inc. (“Primero Systems”) with regard to the use of the webtreepro.com website, webtreepro website software, services, support and Primero Systems supplied content. Services and software, including all updates, support, and Primero Systems supplied content are hereby referred to as the “Service.”
b. These Terms of Use, the webtreepro Privacy Policy, the webtreepro Service Agreement and the webtreepro Reseller Agreement if applicable which are hereby incorporated by reference, comprise the entire agreement (the "Agreement") between Primero Systems and you with respect to the Service.
c. Throughout this Agreement, Primero Systems is referred to as “we,” “us,” or “our” and you are referred to as “you," “your,” or “user.” Any person to which you knowingly or unknowingly provide password access to the Service are referred to as user. All elements of this Agreement apply equally to you or your users and therefore the term “you” will refer to both you and your user(s).
d. All use of the Service is governed by this Agreement, and by using the Service you agree to be bound by this Agreement. If you do not agree to be bound by this Agreement, do not use the Service or provide any materials to the Service.
e. The Service is provided by Primero Systems as a subscription service to you. Please carefully review the following basic rules that govern your use of the Service.
2. Change in Terms
a. Primero Systems reserves the right to update or modify these Terms of Use at any time without prior notice to you or your users. Your use of the Service following any such change constitutes your unconditional agreement to follow and be bound by these Terms of Use as changed. For this reason, we encourage you to review these Terms of Use whenever you use the Service.
b. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Primero Systems in providing the Service, including, without limitation, (i) any change in the content of the Service, or (ii) any change in the amount or type of Service Fees, is to terminate your account as specified in these Terms of Use.
3. Permitted and Prohibited Uses
a. You may use the Service for the sole purpose of building, deploying and maintaining webtreepro “parent” website(s) and subordinate “child” website(s) (“website”).
b. The Service enables you to authorize other users to create passwords associated with your website(s).
c. You are solely responsible for maintaining the confidentiality of your password and are fully responsible for all activities that occur in connection with your password.
d. You agree to immediately notify us of any unauthorized use of your password or any other breach of security. You further agree that you will not permit others, including those whose Service may have been terminated, to access the Service using your User ID and Password.
e. You are responsible for all activity on your website(s) whether authorized or unauthorized regardless of which user may have caused the activity.
f. You agree not to use the Service for any other purposes, including, without limitation, to compete directly or indirectly with Primero Systems; to impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity; to upload, or to gain benefits from the use of the Service without making payment for services rendered.
g. You may not upload any viruses, worms, Trojan horses, or other forms of harmful computer code, nor in Primero Systems’ sole discretion subject our network or servers to unreasonable traffic loads, or otherwise engage in conduct deemed disruptive to the ordinary operation of the Service.
h. You may not use the Service to violate any applicable local, state, national, or international law, including without limitation any applicable laws relating to antitrust or other illegal trade or business practices, federal and state securities laws, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any U.S. laws, rules, and regulations governing the export and re-export of commodities or technical data.
i. You may not upload or transmit any material that infringes or misappropriates any person's copyright, patent, trademark, or trade secret, or disclose via the website(s) any information the disclosure of which would constitute a violation of a confidentiality obligation on your part.
j. You are strictly prohibited from communicating on or through the Service any unlawful, harmful, offensive, threatening, abusive, libelous, harassing, defamatory, vulgar, obscene, profane, hateful, fraudulent, sexually explicit, racially, ethnically, or otherwise objectionable material of any sort, including, but not limited to, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law.
k. Any unauthorized use of the Service may result in termination of all rights to use the Service and penalties to the full extent provided by law.
l. You grant Primero Systems, its affiliated companies, and all other persons or entities involved in the operation of the Service the right to transmit, monitor, retrieve, store, and use your information in connection with the provision and operation of the Service and to provide customer or technical support requested under your account.
m. Primero Systems cannot and does not assume any responsibility or liability for any information you submit, or your or your linked third parties use or misuse of information transmitted or received using the Service.
4. Limits on Service
a. Primero Systems may establish limits on the Service as specified in your Service Agreement. For example, we may limit:
b. The maximum storage space on Primero Systems’ servers available to you,
c. The amount of bandwidth available for traffic to your website(s)
d. If you exceed the service limits as defined in your Service Agreement, Primero Systems reserves the right to terminate your Service.
5. Content Control
a. You understand and agree that Primero Systems does not control or endorse the content that you post or provide on the Service.
b. As Primero Systems does not control the content that you provide, we will have no liability related to the content of your websites or linked third-party web sites whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise.
c. You understand that Primero Systems may remove content or third-party links at any time without notice when the content or link violates this Agreement or an applicable code of conduct, or when we have a good faith reason to believe it is necessary to do so.
d. Primero Systems makes no claims that the content on your website is appropriate or may be downloaded outside of the United States.
6. Payments
a. You are responsible for all activities and charges resulting from use of the Service and will provide Primero Systems with a mutually agreeable payment method (“Payment Method”) which may include electronic fund transfer, company check, Paypal or credit card.
b. You confirm that you are authorized to use the Payment Method and authorize us to charge you for the Service (“Service Fees”) using the Payment Method while this Agreement is in force.
c. All Service Fees and other monetary payments must be made in U.S. Dollars and are non-refundable unless expressly stated otherwise, or otherwise provided by law.
d. If you are not billed by invoice, you authorize Primero Systems to charge the credit card, Paypal account or bank account (whether via ACH service or otherwise) that you provide to Primero Systems for payment of the Service Fees.
e. You further authorize Primero Systems to charge you according to your Payment Method for the amount of all subsequent periodic Service Fees prior to the commencement of any renewal period for such Services.
f. All payments are due 5 - 10 days prior to the start date of your account hosting period dependent upon your selected Payment Method.
i. Check payments are due 10 business days prior to the new hosting period. All checks should be made
payable to Primero Systems, Inc., and mailed to:
Primero Systems, Inc.
Attn: Accounts Receivable
P.O. Box 720490
San Diego, CA 92172-0490
ii. Accounts that pay by credit card are automatically billed 5 days prior to the beginning of each new hosting
period. In the event that credit card payments are declined by the issuing financial institution, Primero
Systems will make every reasonable effort to contact you to request another form of payment. If Primero
Systems is unable to contact you or otherwise resolve the payment issue within 15 days of the
declination, your account will be considered delinquent as described below.
g. You agree to notify Primero Systems of any changes to your physical and e-mail addresses, telephone numbers, credit card numbers, and credit card expiration dates.
h. You are responsible for any overdraft or over-limit fees that may result if there are insufficient funds in your account to cover your Service Fees. Further, you authorize Primero Systems to charge any overdraft or over-limit fees as well as a fifty dollar ($50.00) administration fee to your account.
i. Primero Systems reserves the right to increase fees, surcharges, monthly fees or to institute new fees at any time upon ninety (90) days prior notice. Primero Systems may reduce these fees at any time without notice to you.
j. If Primero Systems does not receive the full amount of your Service account balance before the commencement of your next hosting period your account will be considered past-due (“Delinquent Account”) and your account balance will be charged an additional 1.5% or the highest percentage allowed by law as a late charge and shall be due and payable with your account balance.
k. Delinquent Accounts Services will be suspended and Primero Systems will insert a message at your website indicating your suspension that visitors to your website will see. Notwithstanding any other rights Primero Systems may have in this Agreement, all of your website contents will be permanently deleted if your account is delinquent for 15 days. You acknowledge, understand and agree that Primero Systems will not be able to restore such content.
l. Delinquent Accounts continue to accrue charges while they are delinquent or if the Services are suspended.
m. You shall be liable for all attorney and collection fees arising from Primero Systems efforts to collect any unpaid balance of your account(s).
n. Your suspended account will be reactivated within 10 days of receipt of full payment plus a reconnection fee which shall be the equivalent of 25% of the outstanding and undisputed balance of your account at the time of reinstatment if such payment is received prior to the permanent deletion of your website contents.
7. Term and Termination
a. The Agreement will continue for the term stated in the webtreepro Service Agreement, or if no term is stated, on a month-to-month basis. The Agreement will automatically renew for successive terms, each equal in length to that of the initial term.
b. Either party may terminate this Agreement subject to the current account balance being paid-in-full, effective at the end of the then current term, whether annual, month-to-month or some other fixed term, upon at least thirty (30) days written notice prior to the end of the then current term. Such termination will be effective upon expiration on the last day of the then current term and will constitute the termination of all of your Services.
c. Your account must be paid in full before the termination will be considered complete. Termination does not absolve you of any outstanding financial obligations.
d. Upon termination of the Service by you or us for any reason, Primero Systems may at its sole discretion, permanently delete your website content from our servers. You acknowledge, understand and agree that Primero Systems will not be able to restore such content.
e. Primero Systems does not monitor the status of domain name records on Primero Systems servers. If you transfer your domain without notifying Primero Systems of a desire to terminate your account, you will continue to be responsible for your Service Fees. Primero Systems' Services are independent of domain name records, and are still in effect whether your domain is pointing to Primero Systems' servers or to some other server.
f. Primero Systems reserves the right to terminate or suspend your access to and use of the Service, without notice, if we believe, in our sole discretion, that such use is (i) in violation of any applicable law; (ii) is harmful to our interests or the interests, including intellectual property or other rights, of another person or entity; or (iii) where User is delinquent in their payments or (iv) where Primero Systems has reason to believe that User is otherwise in violation of these Terms of Use. Service Fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Service Fees that accrue during the period of suspension.
g. If this agreement is terminated by you for any reason prior to the expiration of the initial term or any successive term, Primero Systems will not provide any refund or credit to you for any Service Fees that you paid in advance, by credit card or otherwise, and Primero Systems may, in addition, charge you an account administration fee of fifty dollars ($50.00). You authorize Primero Systems, in its sole and exclusive discretion, to charge your payment method or forward an invoice to you immediately upon the termination of this Agreement for the amount of any Service Fees that are then outstanding. You acknowledge, understand, and agree that such charges are for liquidated damages and not as penalties for early or unauthorized termination hereof.
8. Proprietary Rights Reserved
a. All present and future rights in and to the Intellectual Property of the Service and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the Services (the "Intellectual Property Rights") shall, as between you and Primero Systems, at all times be and remain the sole and exclusive property of Primero Systems. You acquire absolutely no rights or licenses in or to the Service other than the limited right to utilize the Services in accordance with this Agreement.
b. All present and future rights in and title to the Services (including the right to exploit the Services and any portions of the Services over any present or future technology) are reserved to Primero Systems for our exclusive use.
c. The Primero Systems webtreepro.com website and Service and all materials regarding the website and Service, including, without limitation, "Primero Systems," “webtreepro” and all other trademarks and logos on the website and Service, are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
9. Privacy
a. In order to operate and provide the Services, we collect certain information about you. We use and protect that information as described in our webtreepro Privacy Policy.
b. Primero Systems will not monitor, edit, or disclose any personal information about you or your use of the Service, including its contents, without your prior permission unless Primero Systems has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of Primero Systems; (3) enforce this Agreement; or (4) act to protect the interests of its Customers or others.
c. In using the Service, you may be able to collect personal information regarding your customers or about third parties through your dealings with such third parties. If you do, you agree to (a) post a privacy policy on your website that, at a minimum, discloses any and all uses of personal information that you collect from such customers or third parties, (b) provide a hypertext link to your privacy policy on the home page of your website and on all pages where you collect personal information from customers or third parties, and (c) use personal information only as expressly permitted by your privacy policy.
10. User Information
a. You agree to provide true, accurate, current, and complete webtreepro account information. It is your responsibility to maintain and promptly update this account information to keep it true, accurate, current, and complete. If you provide any information that is fraudulent, untrue, inaccurate, incomplete, or not current, or we have reasonable grounds to suspect that such information is fraudulent, untrue, inaccurate, incomplete, or not current, we reserve the right to suspend or terminate your Service without notice and to refuse any and all current and future use of the Service.
11. Indemnification
a. You agree to defend, indemnify and hold harmless Primero Systems, its employees, directors, officers, affiliated companies, agents, vendors or suppliers from and against any and all claims, damages, costs and expenses, including reasonable attorneys' fees, arising from or related to your use or misuse of the Service, including, without limitation, your violation of these Terms of Use, the infringement by you, or any other User of your Service, of any intellectual property right or other right of any person or entity.
12. Disclaimer of Warranties
a. Primero Systems' webtreepro software and associated services are provided on an "as is" and "as available" basis. To the full extent permissible by applicable law, Primero Systems disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, or non-infringement of intellectual property.
b. Primero Systems makes no representations or warranty that the Service will meet your requirements, or that your use of the Service will be uninterrupted, timely, secure, or error free; nor does Primero Systems make any representation or warranty as to the results that may be obtained from the use of the Service.
c. Primero Systems makes no representations or warranties of any kind, express or implied, as to the operation of the Service or the information, content, materials, or products included on or with the Service.
d. Under no circumstances and under no legal or equitable theory, whether in tort, contract, negligence, strict liability or otherwise, shall Primero Systems or any of its affiliated companies, employees, directors, officers, agents, vendors or suppliers be liable to you or to any other person for any indirect, special, incidental or consequential losses or damages of any nature arising out of or in connection with the use of or inability to use the Service or for any breach of security associated with the transmission of sensitive information through the Service or for any information obtained through the Service, including, without limitation, damages for lost profits, loss of goodwill, loss or corruption of data, work stoppage, accuracy of results, or computer failure or malfunction, even if an authorized representative of Primero Systems has been advised of or should have known of the possibility of such damages.
e. You understand and agree that any content downloaded or otherwise obtained through the use of the Service is at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data or business interruption that results from the download of content.
f. Primero Systems' total cumulative liability for any and all claims in connection with the Service will not exceed an amount equal to your Service charge for one month. You agree and acknowledge that the foregoing limitations on liability are an essential basis of these Terms of Use and that Primero Systems would not provide the Services absent such limitation.
g. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
13. General
a. This Agreement is governed by the laws of the State of California. Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms of Use, including without limitation this paragraph.
b. Any action or proceeding arising out of or related to this Agreement or your use of the Service must be brought in the state or federal courts of the State of California, and you consent to the exclusive personal jurisdiction and venue of such courts.
c. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Primero Systems as a result of this Agreement or use of the Service.
d. Primero Systems’ performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Primero Systems’ right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by Primero Systems with respect to such use.
e. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
f. Unless otherwise specified herein, this Agreement constitutes the entire Agreement between you and Primero Systems with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Primero Systems with respect to the Service.
g. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
h. You and Primero Systems agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
i. A party may give notice to the other party only in writing at that party's principal place of business, attention of that party's principal legal officer, or at such other address or by such other method as the party shall specify in writing. Notice shall be deemed given upon personal delivery or, if sent by certified mail with postage prepaid, 3 days after the date of mailing.
j. The section titles in the Terms of Use are solely used for the convenience of the parties and have no legal or contractual significance.