TERMS AND CONDITIONS – MANAGECASA, INC. CUSTOMER MARKETING WEBSITES
IMPORTANT – PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS (“Terms”) WHICH GOVERN THE USE OF THE MANAGECASA TOOLS FOR BUILDING AND PUBLISHING CUSTOMER MARKETING WEBPAGES (THE “TOOLS”) AVAILABLE AS PART OF THE MANAGECASA SERVICE. BY ACCESSING OR USING THE TOOLS: (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO AND ACCEPT THESE TERMS (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), ON BEHALF OF THE ENTITY OR PERSON IN RESPECT OF WHOM THE TOOLS WERE ORDERED IN CONNECTION WITH SUCH PERSON OR ENTITY’S SUBSCRIPTION TO THE MANAGECASA SERVICE (SUCH ENTITY OR PERSON, THE “SUBSCRIBER”), AND TO BIND SUBSCRIBER TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE SUCH AUTHORITY, DO NOT ACCESS OR USE THE TOOLS.
THESE TERMS ARE SUBJECT TO MANAGECASA’S APPROVAL OF SUBSCRIBER’S USE OF THE TOOLS AND BY ENTERING INTO THESE TERMS, SUBSCRIBER REPRESENTS THAT SUBSCRIBER RECEIVED SUCH APPROVAL FROM MANAGECASA TO ACCESS AND USE THE TOOLS.
These Terms are incorporated into and made a part of the ManageCasa Terms of Service agreement available at managecasa.com/terms/ (for purposes of these Terms, the “Agreement”). Capitalized terms used and not expressly defined in these Terms will have the meanings given to them in the Agreement. In the event of any conflict between the terms of the Agreement and these Terms, these Terms shall control solely with respect to the use of the Tools and Services provided hereunder.
1.1. “Admin Portal” means the administration portal made available to Subscriber to build and publish the Subscriber Websites and configure certain parameters thereof.
1.2. “Hosting Services” has the meaning given to such term in Section 4.1.
1.3. “Order Form” means a written or electronic order form entered into by ManageCasa and Subscriber for Subscriber’s purchase of subscription access to the Tools and Hosting Services and/or Professional Services.
1.4. “Professional Services” has the meaning given to such term in Section 4.2.
1.5. “Subscriber Websites” means the website(s) or webpage(s) generated by Subscriber using the Tools and through which Subscriber markets, promotes, or provides information regarding Subscriber’s property services, located at the URL owned by Subscriber or, if Subscriber does not own its own URL, at the URL established by ManageCasa.
1.6. “Subscriber Content” means text, music, sound, images, video, graphics, logos, trademarks, and all other content provided, uploaded, and/or submitted by or on behalf of Subscriber in connection with Subscriber’s use of the Tools and/or Services.
2. Subscriptions. ManageCasa will provide Subscriber the Hosting Services and Professional Services, if applicable (collectively, the “Services”), and access to the Tools, in accordance with the subscription plan purchased by Subscriber from ManageCasa (the “Subscription Plan”) as set forth in the Order Form. Each Subscription Plan shall begin on the date set forth in the Order Form and continue for the applicable subscription period (e.g., monthly or annually) selected by Subscriber for the Subscription Plan (the “Subscription Term”). The Subscription Term shall automatically renew for successive periods equal to the initial Subscription Term, unless Subscriber provides us with written notice of non-renewal or termination prior to the expiration of then-current Subscription Term. For more information regarding our Subscription Plans, please see our Pricing Page.
3. Access to and Use of the Tools
3.1. Access. Subject to the terms and conditions of these Terms (including payment of applicable fees), ManageCasa grants Subscriber a non-exclusive, nontransferable, non-sublicensable, limited license, during the Subscription Term, to access and use the Tools, over the internet, through the Admin Portal and solely in connection with Subscriber’s internal business purposes.
3.2. Restrictions. In addition to the obligations and requirements set forth in Section 11 of the Agreement, Subscriber agrees that it will not, and it will not permit any third party to: (a) reproduce, use, distribute, transfer, rent, lease, loan, sell, or sublicense access to the Tools to any third party, other than as expressly authorized in accordance with these Terms and the Agreement; (b) reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or attempt to derive the source code of the Tools; (c) translate, modify or make derivative works of the Tools; (d) include any links, content, information or other materials that reference, promote or advertise any third party products and services which are or may be competitive to the ManageCasa Service; and (e) access the Tools in order to build a similar or competitive product or service.
4.1. Hosting and Maintenance Services. Subject to the Subscriber’s compliance with these Terms and the Agreement (including payment of applicable fees) ManageCasa will use commercially reasonable efforts to host, maintain, and serve the Subscriber Websites during the Subscription Term and subject to the Subscription Plan. Subscriber acknowledges and agrees that ManageCasa shall have the right, at its expense, to modify the format and the presentation of the Subscriber Websites, including without limitation the display of the Subscriber Content, solely to optimize the presentation of such pages for access by users via mechanisms other than stand-alone personal computers (e.g., mobile, tablet and handheld devices). ManageCasa reserves the right to include the notice “powered by ManageCasa” on each Subscriber Website, and any other notices that ManageCasa may reasonably specify from time to time.
4.2. Professional Services. Subject to the terms and conditions of this Agreement (including the payment of applicable fees), ManageCasa may provide Subscriber certain implementation and other professional services related to the creation of Subscriber Websites specified in an Order Form (collectively, the “Professional Services” which, for the avoidance of doubt, excludes Hosting Services). The scope, timeline and tasks of the parties with respect to the Professional Services shall be as specified in the Order Form and/or a statement of work mutually agreed upon and executed by the parties, as applicable. Unless the fees for Professional Services specified in any Order Form or Statement of Work are set forth in that Order Form or Statement of Work, as applicable, the fees payable to ManageCasa for Professional Services shall be based on ManageCasa’s then-current rates for such Professional Services.
5. Subscriber Websites
5.1 Subscriber Content. Subscriber hereby grants to ManageCasa, a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Subscriber’s intellectual property and proprietary rights, to reproduce, modify, incorporate, display, perform and otherwise use the Subscriber Content as reasonably necessary for ManageCasa to provide Subscriber the Tools and Services hereunder. Subscriber will be solely responsible for the accuracy of the information uploaded and/or submitted in connection with the use of the Tools (including, without limitation, Subscriber Data (defined below) and Subscriber Content), and ManageCasa will have no liability regarding such information. Subscriber will ensure that only authorized persons have access to Subscriber’s password and user I.D. to access and use the Admin Portal. Subscriber shall be the owner of all right, title, and interest in and to the Subscriber Content, including any and all intellectual property rights thereto.
6. Fees and Payment
6.1 Fees. Subscriber shall pay the fees set forth in the applicable Order Form for the Subscription Plan and any Services purchased hereunder. Except as otherwise set forth in this Agreement, the fees payable for the Subscription Plan will remain fixed during the Subscription Term unless Subscriber: (i) exceeds the applicable usage parameters and/or limits of Subscriber’s then-current Subscription Plan, (ii) upgrade the Subscription Plan, and/or (iii) subscribe to additional features, products and/or services. In the event a price change, Subscriber will be charged at the start of the next billing cycle for such additional fees. For the avoidance of doubt, Subscriber acknowledges and agrees that any downgrade to the Subscription Plan shall not take effect until the next renewal date of the applicable Subscription Term, regardless of the billing cycle for such Subscription Plan (i.e. for monthly Subscription Plans, prior to the start of the next month, and for annual Subscription Plans, prior to the start of the next year). Subscriptions Plans shall renew at ManageCasa’s then-current pricing for such Subscription Plan.
6.2 Payment Terms. All fees are due and payable in advance, unless otherwise expressly and mutually agreed to by Subscriber and ManageCasa in writing. Subscriber expressly agrees that ManageCasa is permitted to bill Subscriber the applicable fees, any applicable tax and any other charges incurred in connection with the use of the Tools and Services under the Subscription Plan (including, without limitation, any additional and/or increased fees as set forth in Section 6.1), and Subscriber hereby authorizes ManageCasa to charge such fees to the credit card Subscriber provides in accordance with the billing terms in effect at the time a fee or charge is due and payable. All fees are non-refundable and non-cancellable. If payment is not received or cannot be charged to Subscriber for any reason in advance, ManageCasa reserves the right to suspend or terminate Subscriber’s access to the Tools and cease or suspend the Services and/or terminate these Terms and/or the Agreement.
6.3 Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Subscriber will be responsible for payment of all such taxes (other than taxes based on ManageCasa’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Tools and/or Services, or performance of any other services by ManageCasa hereunder.
7. Exclusions. Notwithstanding anything in these Terms or the Agreement to the contrary, ManageCasa will have no responsibility or liability of any kind under these Terms, arising or resulting from: (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by ManageCasa; (b) nonconformities resulting from Subscriber’s, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Tools and/or Services, or other services provided hereunder by ManageCasa; (c) modification, amendment, revision, or change to the Tools and/or Services by any person other than ManageCasa; or (d) any other factor outside of ManageCasa’s reasonable control.
8. Disclaimer. MANAGECASA MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THE TOOLS AND/OR SERVICES, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY MANAGECASA HEREUNDER, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. MANAGECASA DOES NOT WARRANT THAT THE TOOLS AND/OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE.
9. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MANAGECASA BE LIABLE TO SUBSCRIBER OR TO ANY OTHER PERSON ARISING FROM THESE TERMS OR THE USE OF OR INABILITY TO USE THE TOOLS AND/OR SERVICES FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY SUBSCRIBER TO MANAGECASA FOR THE TOOLS AND SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND MANAGECASA’S REASONABLE CONTROL.
10. Indemnification. Subscriber will indemnify and hold harmless ManageCasa, its officers, directors, employees or contractors for and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) to the extent that the action is based on: (a) allegations that the Subscriber Websites, Subscriber Content, or Subscriber’s activities in connection with the Tools and/or Services hereunder, violate any applicable law (including the CAN-SPAM Act) or infringe or misappropriate the intellectual property or other proprietary rights of any third party; and/or (b) Subscriber Data or a violation of any applicable privacy law, rule or regulation by Subscriber. In the event of any claim, ManageCasa will (i) promptly notify Subscriber in writing of such claim (provided that failure to provide notice will not relieve Subscriber’s indemnity obligations hereunder except to the extent the Subscriber has been materially prejudiced thereby), (ii) give Subscriber sole control of the defense thereof and any related settlement negotiations, and (iii) at Subscriber’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Subscriber enter into any settlement that involves an admission of liability, negligence or other culpability of ManageCasa or any or requires ManageCasa to contribute to the settlement without ManageCasa’s prior written consent. ManageCasa may participate and retain its own counsel at its own expense.
11. Miscellaneous. Any waiver, amendment or modification of any provision of these Terms must be in writing and executed by both parties. The failure of either party to exercise any right provided for by these Terms shall not be deemed a waiver of that right. If any term or provision of these Terms is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from these Terms and shall not affect the legality, enforceability or validity of the remainder of these Terms. The parties acknowledge and agree that they are dealing with each other as independent contractors. ManageCasa may delegate the performance of any services hereunder to its affiliates and contractors. Nothing in these Terms and its performance shall be construed as creating a joint venture or agency between the parties. These Terms and the Agreement, constitute the entire agreement between the parties regarding this subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word “including” means “including but not limited to.”