This AdButler Membership Agreement (the "Agreement") is a legal contract between the customer ("You", "Your" etc) and SparkLIT Networks, Inc., owners of AdButler ("AdButler"). The Agreement governs your purchase and use of the various online tools and services, whether fee-based or free of charge, offered on the AdButler website (each a "Service").
Your use of the Services is conditioned on your acceptance of this Agreement. The customer accepts and agrees to be bound by all the terms and conditions of this Agreement, as well as any additional terms specific to the particular Services for which you register. Such additional terms may be found in the Agreements & Policies section of AdButler's website, and shall be considered a part of this Agreement with respect to the Services they cover. Since this is a binding legal agreement between you and AdButler, please print a copy of this Agreement for your records.1. THE SERVICES
AdButler will provide you with the Services for which you register on AdButler's website, subject to the terms and conditions of this Agreement. You acknowledge that the Services may be offered in various separately priced service levels or packages ("Service Plans"), and you will only receive the Service Plans that you have registered for, and for which you are paying all associated fees. Descriptions of each Service, and the various Service Plans that are available for each Service, are available on the Adbutler website.
You may upgrade to a higher Service Plan, if available, at any time during the term of this Agreement by completing and submitting AdButler's then-current upgrade request form. Upon any such upgrade, you agree to pay the increased fees for that Service Plan in accordance with this Agreement. Upgrade pricing for the subscription period in which the upgrade occurs will be prorated in proportion to the number of days remaining in that subscription period at the time the upgrade becomes effective.
AdButler reserves the right to modify, enhance, or supplement the Services at any time in its sole discretion, provided that those modifications do not materially and adversely affect your rights or obligations under this Agreement.2. REGISTRATION PROCESS
To sign up for or receive any Service, you must submit or maintain on file with AdButler certain registration data, as requested by AdButler's online registration form for the Service. Such registration data shall include, but not be limited to, your name, address, email address, website URLs, credit card number, and other billing information. In addition, you must separately submit an online activation request for each Service you desire to use.
AS A CONDITION OF RECEIVING ANY SERVICES, YOU PROMISE, REPRESENT, AND WARRANT THE FOLLOWING.
(a) All of the registration information you supply to AdButler is true, complete, and accurate, and you will notify AdButler of any changes to your registration data during the term of this Agreement and submit updated information within twenty (20) days of any such changes;
(b) none of the URLs you submit to AdButler link to any web page or site that contains any:
i. hate propaganda or material that encourages or promotes illegal activity or violence;
ii. content that violates or infringes in any way upon the statutory, common law, or proprietary rights of others, including but not limited to copyrights, trademark rights,
patents, or any other third party intellectual property, contract, privacy, or publicity rights;
iii. material that promotes or utilizes software or services designed to deliver unsolicited email;
iv. material that violates any local, state, or national law or regulation;
v. misrepresentations or material that is threatening, abusive, harassing, defamatory, obscene, profane, indecent, or otherwise objectionable, offensive, or harmful; or
vi. other material that AdButler, in its sole discretion, deems inappropriate, including any violations of standards posted on AdButler's website or sent to you by email;
(c) You will safeguard your account user name and password by not disclosing your password to any third party, and you will assume responsibility for any and all harm or liability attributable to you or any other person accessing your account or any Services with your user name and password;
(e) You will comply with all local, state, and federal laws and regulations governing your actions under this Agreement; and
(f) You have full power and authority to enter into this Agreement and to perform your obligations hereunder.
Without limiting its other remedies, AdButler may refuse or cancel your account or Services at any time for any violation of the foregoing promises.
You agree to pay AdButler any set-up fees and recurring subscription fees listed on AdButler's website for the Service Plans you select. Completion and submission of any Service activation form authorizes AdButler to charge the credit card specified in your registration for all such fees and any related taxes corresponding to the selected Service. Such charges will be made on a periodic basis, coinciding with the subscription period for the selected Service (for example, monthly or annually). In order to avoid the full fee for any new subscription period, you must cancel the Service BEFORE the new period begins. Any failure to pay the amounts due under this Agreement will be a material breach of your obligations under this Agreement. Without limiting any other remedies available to AdButler, YOU AGREE TO FULLY REIMBURSE ADBUTLER FOR ANY COSTS AND EXPENSES THAT ADBUTLER MAY INCUR IN CONNECTION WITH COLLECTING OR ATTEMPTING TO COLLECT ANY SUCH UNPAID AMOUNTS.
Section 4.1 Price and Payment.
Customer shall pay AdButler monthly recurring fees, in U.S. Dollars, as indicated for the selected Service Plan(s) or, if an AdButler Written Agreement accompanies this document, as indicated by those terms. In addition to any recurring fees, Customer may be charged non-recurring fees as indicated at this same Web site, or as an AdButler Written Agreement specifies.
AdButler reserves the right to increase prices upon the expiration of the Customer's contracted term. Price increases shall be posted on AdButler's web site 30 days prior to taking effect. AdButler agrees to submit written notice to the primary email on record for the Customer at least 30 days prior to taking effect. This Agreement will automatically renew on a month-to-month basis at the month-to-month rate in effect at the time of the renewal unless cancelled in writing or modified in writing by the Customer prior to the renewal date. Customer will receive an invoice for charges and payment is due upon receipt, unless otherwise stated. It is our policy to bill our clients on a monthly basis, and in the absence of any agreement or arrangement to the contrary, we expect to be paid no later than the due date stated on the invoice. Our monthly statements will be itemized as to each general activity.
ection 4.2. Method of Payment.
AdButler accepts payment by Credit Card (Visa, MasterCard, Amex), Check and Postal Money Order. All funds shall be in U.S. Dollars. Customers submitting payment in foreign currencies will incur a $5.00 (U.S. Dollar) conversion fee. AdButler charges $20.00 for each check returned (rejected) by the bank.
Section 4.3. Late Payment.
Customer Balances are due no later than 3:00 PM Pacific Time, on the 20th day after the initial bill date for service stated on the invoice. If a Balance is due 31 days after the initial bill date for service, an interest charge of %2 (two percent) per month will begin to accrue from the initial bill date. If a Balance is due 57 days after the initial bill date for service, Customer's Account may be suspended for service. If a balance remains due 70 days past the initial bill date for service, Customer's Account may be submitted to AdButler's Collection Agency for processing, as described in Section 3.4. AdButler will make reasonable efforts to notify Customer, in advance, of pending late fees, account suspension and account submission to Collection Agency, but AdButler's failure to provide notice will not prevent AdButler from exercising any of its rights regarding past due amounts. AdButler will make reasonable efforts to preserve Customer's content off-line, for up to 70 days past the initial bill date for service. If Account Balance is not settled, AdButler reserves the right to destroy the content on AdButler's service to make space for new Customers.
Section 4.4. Collection Agency.
Customer Balances (Amounts) past due by 70 days are subject to submission to AdButler's Collection Agency. Customer Accounts will incur a Collections Service Fee of $20.00 (Twenty U.S. Dollars), which is in addition to the Late Payment Fee described in Section 3.3. Customer will also be liable for additional further collection costs.
Section 4.5. Credit Card Chargebacks.
Anytime a Chargeback Request is received from our Merchant bank, AdButler reserves the right to immediately suspend Customer's Account until the Chargeback Request has been formally resolved between AdButler and the Merchant Service Authority. This process may take up to, and possibly more than, a week. If you are disputing a billing error, AdButler encourages Customer to first contact AdButler's Customer Service to resolve any discrepancies to avoid having Customer's Account suspended upon notification of a Chargeback. AdButler reserves the right to refuse any additional service to Customer while a Chargeback Notice is pending investigation by the Merchant Service Authority.
5. PRICING CHANGES AND OTHER MODIFICATIONS
AdButler may change its Service fees, or any other terms of this Agreement, at any time by updating the applicable pricing information or other terms posted on AdButler's website. New pricing terms will become effective beginning with the first full billing cycle after AdButler posts such changes to its website. Changes to terms not related to pricing will become effective fifteen (15) days after such notification. If you do not agree to any changes posted by AdButler in accordance with this Section, you must cancel your account or the affected Service as provided herein before the given changes become effective; otherwise you will be deemed to have accepted and agreed to the changes.
Additional modifications to these terms and conditions may be made in special circumstances, but only if approved in advance in a signed writing on AdButler's letterhead by an executive vice president or higher-level officer of SparkLIT. Product sales and support representatives are not authorized to waive or modify any provisions of this Membership Agreement. No failure by AdButler to enforce any term of this Agreement shall be construed as a waiver thereof, nor shall it affect your obligations or AdButler's rights and remedies hereunder.
6. DURATION AND CANCELLATION OF SERVICES
Unless stated otherwise on AdButler's web pages applicable to a given Service, each Service will be provided and billed on a month-to-month or year-to-year subscription basis, measured from the beginning of the calendar month immediately following activation of the given Service. Subscriptions will automatically renew with each monthly or annual period, as applicable, until cancelled in accordance with this section. At any time after activation of a Service, you may cancel that Service either by providing written notice to AdButler, or by using AdButler's online cancellation system, in which case the Service will terminate on the date specified in the cancellation notice. If no date is specified, the Service will terminate at the end of the then-current billing period (for paid Services) or calendar month (for free Services). At the end of the then-current billing period, paid services will revert to the free service level if one is available. Upon successful cancellation a cancellation confirmation number will be provided which can be used as confirmation of cancellation in the future. AdButler reserves the right to cancel your service for any or no reason upon providing written notice of the cancellation. AdButler also reserves the right to cancel any individual Service immediately and without notice in the event that you breach any provision of this Agreement or any other terms that apply to that Service. NO REFUNDS WILL BE AVAILABLE ON ACCOUNT OF ANY SERVICE CANCELLATION BY EITHER PARTY, EXCEPT AS EXPRESSLY PROVIDED IN THE SECTION ENTITLED "REFUNDS" BELOW.
NOTE: As email is inherently unreliable, AdButler does not accept cancellations via email for the benefit of all parties.
7. TERM AND TERMINATION OF AGREEMENT
The term of this Agreement will begin on the date that AdButler accepts your initial registration and will continue in force until terminated according to this section. Upon cancellation of all active Services, or any time thereafter, either party may terminate your account and this Agreement by written notice to the other party. AdButler also reserves the right to terminate your account and this Agreement immediately and without notice in the event that you breach any provision of this Agreement. No refunds will be available on account of any termination of this Agreement, except as expressly provided in the Section entitled "Refunds" below. Sections 10 through 15 of this Agreement shall survive and remain in effect notwithstanding any termination of this Agreement.
If AdButler terminates this Agreement, your account, or any Service prior to the end of any active subscription period, and if you have not breached any provision of this Agreement, then you may request a partial refund of the fees that you have paid for that subscription period, based on the number of days remaining in the subscription period at the time of such termination. If your request is validly submitted in writing within thirty (30) days after such termination, then AdButler will issue the appropriate credit to your credit card or another reasonable method at AdButler's discretion.
Prepayments are non-refundable. You must request cancellation prior to your next billing cycle beginning to prevent charges from being assessed.
Exceptions may be made, in the favour of the customer, on a case-by-case basis
Without limiting any of the restrictions above, you acknowledge and agree that NO REFUNDS OR PARTIAL REFUNDS WILL BE ISSUED: (a) FOR ANY SERVICE THAT YOU CANCEL LATER THAN THIRTY (30) DAYS AFTER ACTIVATION; OR (b) IF YOU HAVE BREACHED ANY PROVISION OF THIS AGREEMENT.
9. OWNERSHIP RIGHTS
You agree and understand that the Services and all graphic designs, icons, Tags, HTML code, computer programming, and other elements incorporated therein are the exclusive property of AdButler. In addition, you acknowledge that AdButler owns all right, title, and interest in and to AdButler's trademarks, trade names, service marks, inventions, copyrights, trade secrets, patents, technology, software, and know-how related to the design, function, or operation of the Service. Your rights to the Services are strictly limited to the rights expressly granted in this Agreement.
10. DISCLAIMER OF WARRANTY
AdButler makes no guarantees of any kind regarding the use or the results derived from any Services in terms of dependability, accuracy, security, timeliness, availability, reliability, or usefulness. The Services and all related materials are provided "AS IS" without warranty of any kind. ADBUTLER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES AND RELATED MATERIALS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADBUTLER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL BE SUITABLE FOR YOUR NEEDS OR YOUR INTENDED APPLICATIONS, OR THAT THE SERVICES WILL BE COMPATIBLE WITH OR OPERATE IN THE HARDWARE, SOFTWARE, OR WEBSITE CONFIGURATIONS THAT YOU SELECT.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL ADBUTLER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOSS OF INCOME, LOSS OR DAMAGE OF DATA, AND DAMAGE TO BUSINESS REPUTATION, UNDER ANY THEORY OF LAW OR EQUITY, AND WHETHER OR NOT ADBUTLER IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHERMORE, IN NO EVENT WILL ADBUTLER'S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT RECEIVED BY ADBUTLER FROM YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PRECEDING THE EVENTS OR CIRCUMSTANCES GIVING RISE TO LIABILITY, OR, IF SUCH LIABILITY ARISES FROM ANY PARTICULAR SERVICE(S), THEN ADBUTLER'S LIABILITY WILL BE LIMITED TO THE FEES YOU HAVE PAID TO ADBUTLER FOR THE PARTICULAR SERVICE(S) DURING SUCH THREE-MONTH PERIOD. Without limiting the foregoing, AdButler is not responsible for any of your data residing on AdButler hardware. You are responsible for backing-up your data and information that may reside on AdButler's hardware or Network, whether or not such information is produced through the use of the Service.
You agree to indemnify, hold harmless, and (at AdButler's request) defend AdButler and its officers, directors, shareholders, and representatives from and against any and all liability, damages, losses, costs, or expenses (including but not limited to attorneys' fees and expenses) incurred in connection with any claim related to (a) your breach of any term, condition, representation, warranty, or covenant in this Agreement; or (b) the information you supply to AdButler or make available to any third party, including your registration data and the content of the web pages corresponding to the URLs you submit to AdButler. This obligation shall survive any termination of your relationship with AdButler.
13. SOLE AND EXCLUSIVE REMEDY
If you are dissatisfied with any portion of any Service, your sole and exclusive remedy is to cancel your account or your subscription to the given Service according to this Agreement. No refunds are available except as expressly provided in the Section entitled "Refunds" above.
14. GENERAL PROVISIONS
The laws of the Canada and the Province of British Columbia govern this agreement. You hereby consent to the jurisdiction of and venue in courts located in Victoria, BC in all disputes arising out of or relating to this Agreement or your use of the Services. In addition, you hereby consent to the exclusive jurisdiction of, and venue in, such courts for any action commenced by you against AdButler. The prevailing party in any dispute relating to the Services or this Agreement will be entitled to recover its costs, expenses and reasonable attorney fees incurred in connection with such dispute.
No party shall be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond the party's reasonable control, including without limitation, acts of any governmental body or failure of the software or equipment of third parties. Except as provided otherwise herein, any notice given under this Agreement will be made in writing by email and will be effective on the business day after it is sent. You may not assign this Agreement, and any attempt to do so is void. You acknowledge that your account is part of the SparkLIT network, and, consequently, you will receive periodic announcements and information regarding SparkLIT's services. You may request to be removed from the network's news mailing list at any time.
If you have any questions about this Agreement or AdButler's Services, please contact AdButler (https://adbutler.com/contact-us.spark).
Thank you for choosing AdButler. We look forward to doing business with you and hope you find our services valuable.