Terms

Warhead Terms of Service

THESE TERMS OF SERVICE (THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU (“CUSTOMER”) AND WARHEAD, INC. (“WARHEAD”) AND SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH WARHEAD AGREES TO GRANT CUSTOMER THE RIGHT TO ACCESS AND USE CERTAIN WARHEAD PRODUCTS AND SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR PLACING AN ORDER (AS DEFINED IN SECTION 1 BELOW) THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “CUSTOMER,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY.

1. Construction.

Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, and Customer’s Order. For the purpose of this Agreement, an “Order” means an order for one or more Warhead services placed by Customer and accepted by Warhead. The Order may be a physical purchase order or may be a form that you click through electronically, including by signing up for specific services on the Warhead website. Warhead offers both free and paid products and services. If your Order indicates that your selected product or service will be provided at no charge, the payment obligations set forth in Section 3.1 will not apply until such time as you upgrade to a paid product or service or place an order for paid products or services.

2. The Service.

2.1 Access. Commencing on the Start Date specified in the applicable Order, Warhead shall make available to Customer the Warhead services identified in the Order for use by the number of Authorized Users specified in the Order, subject to the terms of this Agreement and any scope limitations set forth in the Order (the “Service”).

2.1 Rights to the Service. Subject to the terms and conditions of this Agreement, Warhead hereby grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Service and permit the number of individual users specified in the Order to use the Service subject to the scope limitations applicable to your Order.

2.3 Account Provisioning. Warhead will issue to one Authorized User ("Site Owner") an individual login identifier and password ("Site Owner's Login") for purposes of administering the Warhead Services. Using Site Owner's Login, the Site Owner shall assign each remaining Authorized User a unique login identifier and password and assign and manage the business rules that control each such Authorized User's access to the Warhead Services. Customer acknowledges and agrees that its Site Owner and any Authorized User account with sufficient privileges granted by Customer to transact business through the Service shall be Customer’s agent with the full authority to act on behalf of and is authorized to bind Customer in connection with any service provided to Customer under this Agreement.

2.4 Updates. At no charge to Customer, Warhead shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.

2.5 Restrictions and Conditions. Customer shall not, directly, indirectly or through its Authorized Users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service or access to data provided through the Service; (b) publicly publish, copy (except for internal use), duplicate or replicate the Service or any data provided through the Service; (c) scrape any data, content or intellectual property, or otherwise trespass or interfere with Warhead's Service or systems; (d) "frame," "mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (e) allow access to the Service by multiple individuals impersonating a single end user; (f) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Warhead technologies, services, systems or other offerings, including data transmission, storage and backup; (g) use the Service for the purpose of developing a product or service that competes with the Warhead online products and services; (h) circumvent or disable any security features or functionality associated with Service; or (i) use the Service in any manner prohibited by law.

2.6 Delivery of Service and Materials. The Service, and any updates or maintenance releases thereof, shall be made available only on a hosted basis, and will not be delivered in object code or physical media to Customer. The Service, and any deliverables provided under this Agreement will be delivered only through an electronic transfer.

2.7 Service Limitations. Customer agrees and acknowledges that any software or applications that are provided as a part of the Warhead Services may include errors or bugs that may result in erroneous information, including but not limited to, computations and calculations, for the Customer. Customer agrees that Warhead is not responsible or liable for any errors, bugs, malfunctions, or incomplete or erroneous information that may result from Customer's use of Warhead Services or from any related software or applications that are provided by Warhead or a third party. Customer agrees and acknowledges that any tax computation(s) that Customer generates or requests from Warhead Services may not be reliable and Customer should therefore always use a third party professional to calculate any and all taxes. Customer expressly agrees that Warhead is not responsible or liable in any way to the Customer for the accuracy of any tax computation or calculation of any kind that the Customer performs using Warhead Services, any related software or applications. Warhead is not responsible for making any sales or creating introductions or transaction opportunities for Customer. Warhead does not warranty or guarantee that Warhead’s services will result in increased revenue, profitability, sales, or traffic for customer. Warhead is not liable for transactions or the outcome of transactions between Customer and any third party.

3. Customer Obligations.

3.1 Fees and Payment Terms. In consideration of the rights granted herein, Customer shall pay Warhead the amounts specified in each applicable Order (“Fees”). The Services may include Warhead’s performance of potential revenue-generating services for Customer if and as specified in the service description of an applicable Order. Fees based on a revenue share or referral fees will be paid as specified in the applicable Order or Warhead’s Fee Schedule, as published by Warhead from time to time.

(a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Warhead is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Warhead for all amounts paid.

(b) Unless otherwise specified in the applicable Order, all amounts shall be paid to Warhead immediately upon the execution of the Order, or the receipt of Net Revenue by Customer, if applicable. Fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Warhead further reserves (among other rights and remedies) the right to suspend access to the Service. Amounts payable to Warhead shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Warhead. Customer authorized Warhead to charge the credit card or account that Customer has on file with Warhead any fees or outstanding balances that Customer owes to Warhead. Customer shall immediately update its credit card, account, or payment information if such information changes in any manner, or if payment is declined or unable to be processed.

(c) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term.

3.2 Compliance with Laws and Acceptable Use Policy. The Warhead Service is of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights. Customer agrees to adhere to Warhead’s Acceptable Use Policy, available for review at http://www.warhead.com/aup, as updated by Warhead from time to time (the “AUP”). Warhead reserves the right to deny, suspend, terminate or revoke access to the Warhead Services, in whole or in part, if Warhead believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the Warhead Services inconsistent with the terms and conditions of this Agreement or the AUP.

3.3 Feedback and Use of Data. Customer has no obligation to give Warhead any suggestions, comments or other feedback (“Feedback”) relating to the Service or other current or potential Warhead products or services. However, Warhead may use and include any Feedback that Customer provides to improve the Service or other Warhead products, services, software and technologies. Accordingly, if Customer provides Feedback, Customer grants Warhead and its affiliates and subsidiaries a worldwide, non-exclusive, irrevocable, royalty-free, perpetual license to, directly or indirectly, use, reproduce, license, sublicense, distribute, make, have made, sell and otherwise commercialize the Feedback in the Service or other products, services, software and technologies. Customer further agrees not to provide any Feedback that (a) Customer knows is subject to any patent, copyright or other intellectual property claim or right of any third party or (b) is subject to license terms which seek to require any products incorporating or derived from such Feedback, or other Warhead intellectual property, to be licensed to or otherwise shared with any third party.

3.4 Public Announcements. Customer grants Warhead the right to use Customer's name in press releases, product brochures and financial reports indicating that Customer is a customer of Warhead. Customer grants Warhead a royalty-free, irrevocable license for the Term to use, publish, copy, and exhibit its trademarks, wordmarks, and logos in furtherance of the Services and promotion of the Warhead Service.

4. Proprietary Rights.

4.1 Reservation of Rights. All rights not expressly granted to Customer are reserved by Warhead, its suppliers and licensors.

4.2 Ownership of Document. Customer will retain all right, title and interest to the documents created by Customer using the Warhead Services, subject to any rights of Warhead and its affiliates to elements provided by Warhead and any associated Derivative Work or underlying documents, graphics, images, data or information related to the Warhead Service.

4.3 Limited License to Warhead. By submitting any content (including without limitation, any photograph, words, pictures, or symbols) or information to Warhead in connection with your registration for and use of the Service, you grant Warhead a license to use, copy, modify, create derivative works, publicly perform and distribute such content for the purpose of providing Customer with the Service, and for the purposes of improving Warhead’s products and services. If Customer posts content to public facing features of the Service, including as part of a website hosted by Warhead, you grant Warhead a perpetual, irrevocable, worldwide, non-exclusive, royalty-free license, sublicensable through multiple tiers, in all media now known or hereinafter created and for any purpose, license to use, copy, modify, create derivative works, publicly perform and distribute such content in connection with providing Warhead products and services to you. Customer represents and warrants that Customer has sufficient rights to grant Warhead the foregoing licenses. The foregoing licenses include any personality or publicity rights encompassed in such content, and Customer acknowledges Warhead may use any such content to promote the Service. Customer must obtain consent and a release from any person (or the legal guardians of any persons) depicted in Customer's content before Customer submits it to Warhead, with full knowledge from these persons that Warhead may use and publish the content in which they are depicted it in any manner whatsoever.

4.4 Responsibility for Content. Customer is solely responsible for any content that Customer submits, posts or transmits via the Warhead Service. Customer may not post or submit any content that: (i) infringes the copyright, trademark, or other intellectual property rights of any person; (ii) is defamatory; (iii) contains nudity or sexually explicit content, or is otherwise obscene; (iv) may disparage any ethnic, racial, sexual, religious, or other group by stereotypical depiction or otherwise; (v) depicts or advocates the use of illicit drugs; (vi) makes use of offensive language or images; (vii) characterizes violence as acceptable, glamorous or desirable; (viii) provides a link to any other websites; or (ix) provides a phone number, email or other personal contact information. Warhead has no obligation to process or post any specific content from Customer or anyone else. Warhead may, in sole and unfettered discretion, edit, remove or delete any content that Customer posts or submits, including without limitation, if such content is judged by Warhead to violate the foregoing restrictions or otherwise inappropriate for the Service.

4.5 Derivative Works. To the extent that Customer creates any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to Customer, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Warhead and its affiliates and all right, title and interest in and to each such Derivative Work shall automatically vest in Warhead and its affiliates. Warhead and its affiliates shall have no obligation to grant Customer any right in any such Derivative Work. Title, ownership rights and intellectual property rights in and to the content accessed through the Services, such as a product catalog, are the property of Warhead and the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives Customer no rights to such catalog or related content separate or independent of the Services.

5. Term and Termination.

5.1 Term. Unless otherwise specified in the Order, the initial term of this Agreement will begin on the Effective Date and shall continue thereafter until the End Date specified in the Order (the “Initial Term”), and shall thereafter automatically renew for additional periods of one (1) month (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”) unless either party provides written notice of its intention not to renew to the other party at least forty five (30) days prior to expiration of the current term, and no sooner than ninety (90) days prior to the expiration of the current term. If no End Date is specified in the Order, the End Date will be one month from the Effective Date of this Agreement.

5.2 Termination. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof. Warhead, in its sole discretion, may terminate this Agreement and Customer’s Service with Warhead, Customer’s password, and/or its account, and remove any content within the Service for any reason, including and without limitation, the lack of use, or if Warhead believes that Customer has violated or acted inconsistently with the letter or spirit of these Terms of Service or the Warhead AUP. Warhead may also in its sole discretion and at any time discontinue providing the Warhead Service, or any part thereof, with or without notice. Customer agrees that any termination by Warhead of access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledges and agrees that Warhead may immediately deactivate or delete any Customer website hosted on the Service, as applicable, and all related information and files. Warhead reserves the right to bar any further access to such files or the Warhead Service. Customer agrees that Warhead shall not be liable to Customer or any third-party for any termination of access to the Warhead Service.

5.3 Effect of Termination. Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by Warhead. No later than the end of the Term, Customer shall return to Warhead any and all Warhead Services, equipment, software, documentation or other deliverables provided to Customer by Warhead including any copies thereof held by Customer, and Customer shall expunge all data acquired under this Agreement through the Service. Upon request Customer will provide written certification that it has deleted all data acquired under this Agreement, in compliance with the requirement above.

6. Indemnification.

Customer shall indemnify and hold Warhead, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with Customer’s use of the Service or breach of this Agreement. In the event Warhead is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney's fees.

7. Warranty / Liability / Total Liability

7.1 Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein. Customer represents and warrants to Warhead that: (a) Customer will use all necessary security options with any equipment or software that Customer uses in conjunction with Warhead Services; (b) Customer’s authorized representative is of legal age (at least 18 years of age) to enter into this Agreement; (c) Should Customer receive notice of any claim regarding the Warhead Services, Customer shall promptly provide Warhead with a written notice of such claim.

7.2 Disclaimer. THE SERVICE AND ANY OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, “SERVICES”) AND ALL DATA PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" BASIS. WARHEAD DOES NOT WARRANT THE COMPETENESS OR ACCURACY OF DATA PROVIDED, AND CUSTOMER SHOULD INDEPENDENTLY VERIFY SUCH INFORMATION. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY WARHEAD, ITS SUPPLIERS AND ITS LICENSORS.

7.3 Internet Risk. CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. WARHEAD IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND WARHEAD’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY WARHEAD.

7.4 Limitation. CUSTOMER’S EXCLUSIVE REMEDY AND WARHEAD’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, UP TO THE GREATER OF THE AGGREGATE AMOUNTS PAID BY CUSTOMER AND RECEIVED BY WARHEAD HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR ONE HUNDRED US DOLLARS ($100). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. CUSTOMER HEREBY RELEASES WARHEAD, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT WARHEAD’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.

7.5 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL WARHEAD BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.

8. Copyright Infringement.

Warhead respects the intellectual property rights of others, and asks Customer to do the same. It is Warheads policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Service in a way that constitutes copyright infringement, please contact Warhead at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the time(s) and date(s) the material that you claim is infringing was displayed on the Service; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

If you believe that your user content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your user content, you may send a counter-notice containing the following information to the copyright agent: (1) your physical or electronic signature; (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in the Western District of Washington and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at the sole discretion of Warhead.

Warhead's designated agent for notice of copyright infringement can be reached at: Warhead, Inc., Attention: Copyright Notice, 11335 NE 122nd Way, Ste 105, Kirkland, Washington 98034, copyright@warhead.com.

9. Modifications

Modifications to Agreement. Except as otherwise provided in this Agreement, Customer agrees, during the term of this Agreement, that Warhead may: (a) revise the terms and conditions of this Agreement; and/or (b) change part of the Services provided under this Agreement at any time. Any such revision or change will be binding and effective on Customer through Customers continued use of the Warhead Services after any such revisions. Customer agree to periodically review notices posted on the Service, to be aware of any such revisions. If Customer does not agree with any revision to the Agreement, Customer may terminate this Agreement at any time by providing Warhead with notice. Notice of Customers termination will be effective on receipt and processing by Warhead. By continuing to use Warhead Services after any revision to this Agreement or change in service(s), Customer agrees to abide by and be bound by any such revisions or changes.

10. General.

This Agreement shall be governed by Washington State law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in King County, Washington. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Warhead to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. Sections 1, 2.5, 3, 4, 5, 6, 7, 8, 9 and 10 survive termination or expiration of this Agreement for any reason. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement may not be transferred or assigned by Customer to any third party, including by operation of law, without Warhead’s prior written consent. This Agreement, together with any applicable Orders comprises the entire agreement between Customer and Warhead and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.