Carefully read the following terms and conditions of this agreement. By accessing and using the ExoLumina managed services and associated software of Gary Smith Marketing, LLC. (“ExoLumina”), you (“Customer”) indicate the acceptance of the following terms and conditions and you agree to be bound by them. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE EXOLUMINA MANAGED BUSINESS WEBSITE SERVICE or associated software / services.
This agreement constitutes the complete and exclusive statement of the agreement between you and ExoLumina with respect to the Managed Business Website cloud services and associated software and SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, oral or written, and any other
communications relating to the subject matter of this agreement.
Now, therefore, in consideration of the mutual covenants set forth herein, ExoLumina and Customer agree as follows:
1. Order Acceptance, Payment.
- All orders are subject to acceptance by ExoLumina. An order will be deemed accepted by ExoLumina when ExoLumina responds by email to the order receipt of the Customer.
- Customer shall use a valid major credit card at a secure payment web site or other payment method as agreed upon by both parties for paying in advance the applicable set-up fees and monthly fees as agreed upon by Customer and ExoLumina in the Customer Order. Such fees and charges shall include, without limitation, the fees for connectivity to the managed cloud application servers, operator group design and maintenance services, and charges by any and all third parties whose materials are included as part of the service. ExoLumina reserves the right to change the amount of, or basis for determining, any fees or charges and institute new fees and charges upon prior notice to Customer to be visible in the Customer Order. ExoLumina shall honor originally outlined pricing for fees paid in advance. Customer agrees to pay for monthly services as part of this agreement on the date outlined in the Customer Order. Customer shall access the referenced secure site with valid major credit card information, unless otherwise agreed upon, to make the payment. All fees must be paid in advance, in US Dollars (USD) only. Unless otherwise specified and agreed upon, Customer must pay, in advance, for each billing period of service. If payment by Customer’s credit card or other source of funds as agreed upon is denied, or Customer’s charge is returned to ExoLumina for any reason, including charge back, or Customer otherwise fails to make any payments owing to ExoLumina by payment due date, ExoLumina shall, at ExoLumina’s discretion, suspend or terminate access to the ExoLumina Services and/or terminate this Agreement, anytime after payment due date when payment hasn’t been received, without prior notice to Customer. Customer’s right to use the ExoLumina Services is subject to any limits established by ExoLumina or by the issuer of Customer’s credit card or alternative source of funds if applicable. Customer shall be responsible for any and all taxes related to this Agreement.
2. ExoLumina Services.
During the term of this Agreement, ExoLumina shall provide the following software and support services to Customer:
- Routine activities including but not limited to provisioning, security updates, application updates, backup operations and maintenance.
- Support Ticket access for services support and operations communication.
All fees are nonrefundable.
4. Third Party Providers.
Access to and use of ExoLumina Managed Services requires Internet access service which is not included in the services provided by ExoLumina. Customer acknowledges that in order to access ExoLumina Managed Services, Customer may have to agree to and execute agreements with third party providers who may charge Customer fees and charges which are in addition to the fees and charges imposed by ExoLumina. This Agreement does not in any way relate to or modify the terms of such agreements.
5. Rules and Regulations.
By using this service, Customer agrees to and will abide by the following rules and regulations:
- The managed service cannot be used for distributing pornography or other objectionable material, or for committing any criminal offenses.
- Malicious intent or action of any kind against ExoLumina managed services, software, or other ExoLumina customers subscribing to ExoLumina managed services is strictly prohibited. Attempting to guess user names and passwords of other service or trial operators and masquerade as their identity constitutes malicious intent.
6. License Grant.
During the term of this Agreement, ExoLumina grants to Customer a non-exclusive, personal, non-transferable license to access and use the ExoLumina Managed Services solely on and as part of ExoLumina’s World Wide Web site and servers. ExoLumina may modify the ExoLumina Managed Services at any time for any reason and may provide modified versions of the ExoLumina Managed Services agreement to Customer without any additional charges for such changes.
7. Intellectual Property Rights.
Customer acknowledges and agrees that the ExoLumina Managed Services constitute confidential and proprietary information of ExoLumina and its licensors and embodies trade secrets and intellectual property of ExoLumina and its licensors protected under United States copyright and other laws and international treaty provisions. Customer further acknowledges that all right, title, and interest in and to all parts of the ExoLumina Managed Services, including, without limitation, associated intellectual property rights, are and shall remain with ExoLumina and its licensors. Customer shall not, and shall cause its employees and agents not to, disclose or transfer any portion of the ExoLumina Managed Services to any third party. Customer further agrees not to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, sublicense, distribute, remarket or otherwise dispose of any portion of the ExoLumina Hosting Services. Customer hereby acknowledges that, if ExoLumina at any time or from time to time performs any customizations or modifications to ExoLumina Managed Services, all rights and interests to such customizations or modifications shall be the sole property of ExoLumina. All Customer content on ExoLumina Managed servers are property of the Customer and remain the property of the Customer even after termination of this Agreement between ExoLumina and Customer.
8. Term and Termination.
- This Agreement shall have an initial term of twelve (12) months and shall thereafter automatically renew for successive one (1) month periods. This Agreement and Customer’s access to the ExoLumina Managed Services shall terminate as follows:
- Either party may terminate after the initial twelve (12) month term;
- ExoLumina may immediately and without prior notice terminate upon a violation by Customer of ExoLumina’s Rules and Regulations;
- ExoLumina may terminate immediately and without prior notice in accordance with Section 1; and
- ExoLumina may terminate immediately if, after 15 days prior notice to Customer, Customer has failed to correct any breach of this Agreement.
- Early termination fee that will apply for agreed upon services is as follows: if seven (7) or more months remain, $250.00; if 1 day through six (6) months remain, $125.00. Pricing does not include taxes, fees, or other surcharges.
- In cases where Customer’s account has been cancelled by Customer per Section 8(A)(i), and Customer is requesting reactivation, ExoLumina, at it’s option, may reactivate the same account, only if the account had been cancelled less than thirty (30) days prior. Otherwise, or after thirty (30) days, Customer will be required to set up a new account and must pay all associated set-up fees.
- To cancel an ExoLumina managed service, Customer can process the cancel subscription service from the ExoLumina Accounts subscription dashboard or send a request via their access to the support ticket system.
- Sections 1, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive any termination of this Agreement.
Exclusion of Warranties. EXOLUMINA PROVIDES THE MANAGED SERVICE ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.
While ExoLumina makes reasonable efforts to maintain the ExoLumina Managed service, many factors are not within ExoLumina’s control. Therefore, ExoLumina does not warrant, and is not responsible for (even if caused by the negligence of ExoLumina) any loss of data, delays, non-delivery or mis-delivery of information, lack of access, slow response time, or service interruptions or errors. Loss, delay or non-delivery of service or data can be due to but not limited to ExoLumina’s own negligence, viruses or other third parties. This disclaimer and waiver shall apply equally to any and all third party providers. While ExoLumina makes every attempt to secure Customer’s service from others, it is unlikely but possible for someone to guess operator user names and passwords, and masquerade as one of Customer’s operators. Customer is responsible for ensuring secure operator password use and practices to prevent such an occurrence. While ExoLumina makes reasonable efforts to accommodate varying types of user (operator and end-customer) computer systems and web browsers, ExoLumina provides no guarantee to Customer that the service will work with all user systems and browsers, especially older ones. ExoLumina provides no warranty to Customer regarding the accuracy of usage statistics, which ExoLumina may provide at its discretion. Further, no advice or information given by an ExoLumina representative shall create a warranty or serve as an amendment to this agreement.
Customer’s Data is defined as any data held or generated by ExoLumina and includes chat session transcripts, service hosting data, user names, descriptive information and user email addresses. Any such Customer’s Data is confidential information of the Customer and ExoLumina will: (i) hold such data in confidence, and not disclose or reveal to any person or entity without the clear and express prior written consent of a duly authorized representative of Customer; and (ii) not use or disclose such data for any purpose at any time. ExoLumina is not responsible for accidental or deliberate breach of such data while the data is being transmitted to the Customer via emails or other electronic media.
ExoLumina has the right to change prices, or add or delete product features of any existing product or service. ExoLumina shall honor originally quoted pricing for fees paid in advance. The right to change products or services extends to any software supporting a product or service. ExoLumina has the right to discontinue products or services and the right to reassign the IP address of the managed services which may require modification to all Customer’s web site. ExoLumina also has the right to deactivate Customer’s service with a thirty (30) day notice. Except for certain products and services specifically identified as being offered by ExoLumina, ExoLumina does not control any materials, information, products, or services on the Internet. The Internet contains unedited materials, some of which are sexually explicit or may be offensive to you. ExoLumina has no control over and accepts no responsibility for such materials. You assume full responsibility and risk for use of the services and the Internet and are solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information, and the quality and merchantability of all merchandise provided through the service or the Internet.
9. Limitation of Liability and Damages.
THE TOTAL AGGREGATE LIABILITY OF EXOLUMINA TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT PAID TO EXOLUMINA BY CUSTOMER HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH EXOLUMINA IS LIABLE TO CUSTOMER. IN NO EVENT SHALL EXOLUMINA BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED UPON BREACH OF CONTRACT, TORT, OR OTHERWISE AND WHETHER OR NOT EXOLUMINA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer acknowledges that by reason of its relationship with ExoLumina, it may have access to certain information and materials relating to ExoLumina’s business, customers, software technology and marketing which ExoLumina treats as confidential (collectively “Confidential Information”). Customer shall: (i) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the clear and express prior written consent of a duly authorized representative of ExoLumina; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
Customer shall indemnify and hold ExoLumina harmless against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), attorney’s fees and expenses that Company may sustain or incur by reason of any breach or alleged breach of any term or condition of this Agreement (including reasonable attorney’s fees) and for any act or omission of Customer or its clients which are in any way related to the ExoLumina Service.
12. Export Control.
Customer agrees to comply with all United States and other applicable laws, rules and regulations relating to the export, re-export or transshipment of the ExoLumina Managed Services within or outside of the United States.
13. Force Majeure.
Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
Customer may not assign its rights or delegate any of its duties under this Agreement without the prior written consent of ExoLumina, and any attempted assignment or delegation without such consent shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of partners or joint ventures. ExoLumina may subcontract any work, obligations or other performance required of ExoLumina under this Agreement without consent of Customer provided ExoLumina shall ensure continuity in services rendered under this Agreement which if not so done shall amount to material breach of the terms of the Agreement. Other than the termination of this agreement, all notices provided hereunder sent by email, mail or certified mail to ExoLumina, will be effective upon transmission. ExoLumina has the right to amend the Agreement from time to time, and will do so by mailing or emailing the new Agreement to all active Customers.
The Agreement shall be governed by the laws of Texas, without giving effect to applicable conflict of laws provisions. The federal and state courts located in Baird, Texas alone have jurisdiction over all disputes arising out of or related to this Agreement and the Services. Customer consents to the personal jurisdiction of such courts sitting in Texas with respect to such matters or otherwise between Customer and ExoLumina, and waives Customer’s rights to removal or consent to removal. In the event any litigation or other proceeding is brought by either Party in connection with this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to recover from the other Party all costs, attorneys’ fees and other expenses incurred by such prevailing Party in such litigation.
15. Site Design / Redesign.
- ExoLumina has the experience and ability to do everything ExoLumina agreed with Customer and ExoLumina will attempt to do it all in a professional and timely manner. ExoLumina endeavors to meet every deadline that is outlined however emphasis must be maintained that an ETA (estimated time of arrival) is still an estimate.
- Browser testing no longer means attempting to make a website look the same in browsers of different capabilities or on devices with different size screens. It does mean ensuring that a person’s experience of a design should be appropriate to the capabilities of a browser or device.
- Mobile browser testing using popular smaller screen devices is essential in ensuring that a person’s experience of a design is appropriate to the capabilities of the device they’re using. Mobile testing happens after the base design is approved, mobile responsiveness is not completed until the last step. Customer is likely to receive initial designs / mockups that are not mobile responsive.
- ExoLumina will carry out work in accordance with good industry practice and at the standard expected from a suitably qualified company with relevant experience. ExoLumina cannot guarantee that said work will be error-free as web frameworks and technology change, so ExoLumina cannot be liable (9. Limitation of Liability and Damages.) to Customer or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if Customer advised us of them.