Webaratus terms and conditions
The following are the terms and conditions for use of the Webaratus service described herein (the "Service") between Holiday Koala. and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You"). Please read them carefully. BY COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE ("AGREEMENT"). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
"Account" refers to the billing account for the Service.
"Customer Data" means the data concerning the content and information entered into System by You.
"Documentation" means any accompanying proprietary documentation made available to You by Webaratus for use with the Software, including any documentation available online or otherwise.
"System" means the proprietary Webaratus software, which is installed on a web page for the purpose of displaying Customer Data, together with any fixes, updates and upgrades provided to you.
"Site" means a group of web pages that are linked to an Account.
"Software" means the processing software contained on the Webaratus servers that facilitates the operation of the System..
2. FEES AND SERVICES . Subject to Section 14 herein, the Service is provided without charge to You for the selected Modules outlined on the website.Charges apply for extra Modules and services at the rates outlined in the System.
Webaratus may change its fees and payment policies for the Service from time to time including but not limited to the addition of costs for Modules, customer support, custom design and development. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by Webaratus will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with your account.
3. MEMBER ACCOUNT, PASSWORD, AND SECURITY . To register for the Service, You must complete the registration process by providing Webaratus with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You shall protect your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You agree to notify Webaratus immediately upon learning of any unauthorized use of Your Account or any other breach of security. From time to time, Webaratus's support staff may log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.
4. NONEXCLUSIVE LICENSE . Webaratus hereby grants You a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the System solely as necessary to use the Service for one or more web pages that You own and control (collectively, the "Website"). Your license of, use of and access to the System and the Service (which may include, without limitation, the Software, and Documentation) is conditioned upon Your compliance with the terms and conditions of the Agreement, including the following:
You will not nor will You allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the System, the Processing Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will use the Software, Service and Reports solely for Your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Service and Reports.
This license will terminate immediately if You fail to comply with the terms of this Agreement. Upon such termination, You must destroy all originals and copies of the System in Your possession and so certify in writing to Webaratus within three (3) business days of termination and cease any further use of the Service without the express written consent of Webaratus.
5. CONFIDENTIALITY . "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of Your password(s) and user name(s) issued to You by Webaratus, and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify Webaratus of any unauthorized use of Your account or any other breach of security known to You.
8. INDEMNIFICATION . You agree to indemnify, hold harmless and defend Webaratus, at Your expense, any and all third-party claims, actions, proceedings, and suits brought against Webaratus or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Webaratus or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) Your Brand Features. In such a case, Webaratus will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Webaratus reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
9. THIRD PARTIES. If You provide access to Your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party ("Third Party"), whether or not You are authorized to do so by Webaratus, the terms of this Section 9 shall apply to You.
If You use the Service on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party , (b) as between the Third Party and You, the Third Party owns any rights to Customer Data in the applicable account, and (c) You shall not disclose Third Party's Customer Data to any other party without the Third Party's consent.
You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. Webaratus make no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Webaratus, the Service, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend Webaratus, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against Webaratus or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Webaratus, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports.
10. DISCLAIMER OF WARRANTIES . The information and services included in or available through the Service, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Webaratus and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. Webaratus does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software are free of viruses or other harmful components. You specifically agree that Webaratus shall not be responsible for unauthorized access to or alteration of the Customer Data or data from Your Website.
THE SERVICE, THE SOFTWARE AND THE SYSTEM ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY WEBARATUS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, AND THE DOCUMENTATION. INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. WEBARATUS DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR SYSTEM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY . WEBARATUS WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WEBARATUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
Webaratus's total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed U.S. $500.
12. SERVICE LEVELS . Webaratus does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Webaratus's control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Webaratus or Your servers are located or co-located. Complete accuracy in all aspects of Your Statistics at all times also is not guaranteed.
13. PROPRIETARY RIGHTS NOTICE . The Service, which includes but is not limited to the System and the Webaratus Software and all intellectual property rights in the Service are, and shall remain, the property of Webaratus. All rights in and to the Software not expressly granted to You in this Agreement are hereby expressly reserved and retained by Webaratus and its licensors without restriction, including, without limitation, Webaratus's right to sole ownership of the Software and System. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Webaratus; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Webaratus other than in the name of Webaratus; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
14. TERM and TERMINATION . Either party to the Agreement may terminate it at any time and for any reason.
Upon any termination or expiration of this Agreement, Webaratus will cease providing the Service, and You will delete all copies of Webaratus's System code from all Pages and certify thereto in writing to Webaratus within three (3) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical data will no longer be available to You unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.
15. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES . Webaratus reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement to the site located at www.webaratus.com. You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Webaratus, (ii) You accept updated terms online, or (iii) You continue to use the Service after Webaratus has posted updates to the Agreement or to any policy governing the Service.