1. Acceptance of Terms
This Terms of Service Agreement (“Agreement”), electronically or written, is between Acuta Digital, Inc. (“Acuta Digital”, “we”, “us”, or “our”) and you (“Customer”, “you”, “your”, “Client”) governs your purchase and use, in any manner whatsoever, of all services provided to you by Acuta Digital (“Services”). Client also agrees that Client’s electronic acceptance of this Terms of Service shall have the same force and effect as if Client had agreed to this Agreement in writing.
Acuta Digital provides its services to Client subject to the following Terms of Service Agreement, which may be updated from time to time without notice. Client may review the most current version of the Agreement at http://www.acutadigital.com/terms-of-use. Failure to comply with the Agreement may result in account termination. By using Acuta Digital’s services Client agrees to (and hereby signs) the most current version of the Agreement. If Client does not expressly reject the Agreement and cancel Client’s account within 5 days from the date of initial sale, Client agrees to (and hereby signs) this Agreement and Acuta Digital is instructed to commence work on the Client’s website as if Client had expressly accepted the terms in this Agreement.
2. Description of Service
Acuta Digital designs and hosts web sites (“websites”) and provides other website-related services, which may include, but not limited to, support and modification of websites, e-commerce, flash, web-traffic reporting, database development, easy interface for updating the website, email accounts and additional website-related services. Client understands that Acuta Digital services may include certain communications from Acuta Digital such as advertisements, notices, service announcements and newsletters. Client is responsible for obtaining access to Acuta Digital services that may involve 3rd party fees (including but not limited to, ISP, merchant accounts and gateways). Client is also responsible for all equipment and software necessary to access Acuta Digital services.
3. Electronic Delivery Policy
Acuta Digital is a website-related business and communicates with its Clients electronically. When Client accepts this Agreement Client consents to receive electronically from Acuta Digital any notices, agreements, disclosures, or other communications (“Notices”). Client agrees that Acuta Digital may send electronic Notices in either of the following ways. 1) To the email address provided to Acuta Digital at the time of sale or 2) to the new email address account Client set up through Acuta Digital. Client agrees to check the designated email addresses regularly for Notices. Notice from Acuta Digital is effective when sent by Acuta Digital, regardless of whether the Notice is read or received by Client.
5. Unacceptable Practices
As Acuta Digital strives to offer the very best service, there are certain guidelines and policies that must govern Acuta Digital’s efforts and relationships with its clients. Practices that are in violation of these guidelines and policies are strictly forbidden and will result in the immediate termination of Acuta Digital’s services. Such decisions are at the sole discretion of Acuta Digital Inc. Unacceptable practices include, but are not limited to:
Adult or pornographic material including, but not limited to, sexually explicit or suggestive material. Distribution of internet viruses or other harmful or destructive activities. Harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racial, chauvinistic, ethnically offensive or otherwise objectionable content or language. Defamatory, hateful or revenge content or language. Content or language that is harmful to minors in any way
Illegal activities such as ponzi schemes, fraudulent charging of credit cards, copyright violations, plagiarism, software piracy, and all unauthorized use of materials or content that infringes on third parties’ intellectual properties
Intentional or unintentional violations of any applicable local, state, national or international law.Reselling email accounts or hosting accounts to third parties. Reselling of any Acuta Digital services including, but not limited to, design services, updates, and WTD to third parties without a written re-seller agreement. Spamming and all other forms of unsolicited messages including, but not limited to, spam, pyramid schemes, chain letters, and junk email Links to other sites that are in violation of Acuta Digital’s policies and guidelines
Other activities, whether lawful or unlawful, that Acuta Digital deems to be in poor taste or that reflect adversely on Acuta Digital or Acuta Digital’s other clients
Acuta Digital reserves the right to refuse to design or host an account at its sole discretion at anytime.
As a Acuta Digital Client, you agree to conduct your business in a legal and professional manner. Client is fully responsible for all website content and agrees to hold Acuta Digital harmless in the event of third parties’ legal issues brought against Client for Client’s business practices (See Acuta Digital Inc. Proprietary Rights). Acuta Digital retains the right to terminate any accounts that are in violation with the letter or spirit of this Agreement. Acuta Digital may also at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice. If an account is terminated by Acuta Digital for an Agreement violation the Client is not eligible for a full refund and any refund is subject to the Cancellation Fee and Refund Policy. (See Termination)
Client acknowledges that Acuta Digital may access, preserve, and disclose Client’s account information and content if required to do so by law or in a good-faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal processes, enforce the Agreement, provide customer service or protect the rights, property, or safety of Acuta Digital and the public.
6. Intellectual Property Policy
Acuta Digital respects copyright laws and the intellectual property of others. Acuta Digital may terminate accounts for copyright infringement. Acuta Digital will not use copyrighted or trademarked materials on any Client’s website without the express written consent of the copyright or trademark owner. It is Client’s responsibility to ensure that all content submitted to Acuta Digital is original content and free from third-party copyright or trademark protection, or to obtain permission to use from the copyright or trademark owner. Client assumes full liability for any copyright or trademark infringement of Client’s website on any third-party copyright or trademark, including, but not limited to, any infringement due to website content, website design or the look and feel of Client’s website.
7. International Use
Recognizing the global nature of the internet, Client agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Client agrees to comply with all laws regarding the transmission of technical data exported from the United States, or the country in which Client resides and/or transacts business.
8. Interstate Communications
Client acknowledges that by using Acuta Digital’s services Client will be causing communications to be sent through Acuta Digital computer networks, which may be located throughout the United States. Due to the nature of electronic communications, even communications that seem to be intrastate can result in the transmission of interstate communications. Client acknowledges that use of Acuta Digital’s services results in interstate data transmissions.
9. Website Construction Procedure
With help and input from the Client, Acuta Digital will prepare the appropriate custom design and work with the content provided by the Client for development of the site. Client must submit content to the design department before site construction begins on the custom website. The first payment received by Acuta Digital from Client denotes acceptence of terms and service. After content is submitted by the Client the website is developed. Prior to the website being taken live the client will receive a missing information notification if content is incomplete.
In submitting content, links to sample sites the Client likes are for general information purposes only and assist Acuta Digital with the design of the Client’s custom website. The functionality and detail of the sample sites will not be duplicated unless such functionality and detail are specifically included and itemized in invoice.
The design and content layout are completed by the designer and presented to the Client for approval. After the Client approves the website, the website will go live. The Acuta Digital Quality Control team may review the text before site goes live to correct any possible errors. Acuta Digital will not be held liable for accuracy of information, typos, or spelling errors in any of the content approved by the Client and published on the website. Client will be notified by email that the website is now live.
Client understands, agrees and acknowledges that Acuta Digital does not guarantee a time frame for completion of ANY custom website. A custom website cannot be completed without submission of complete content, design approvals and participation from the Client. If Client continues submitting additional content throughout the design process, the design time frame is increased. If Client does not submit complete content and Acuta Digital is not able to start or complete the custom website design, Client is still responsible for all fees incurred including, but not limited to, set-up, hosting and domain fees. Enhancement and monthly hosting charges that begin accruing from the date the website is launched. If Client’s website requires custom programming, functionality, flash, e-commerce or the use of a database, the overall development time will be extended.
Client is provided with a “space holder” immediately after sale. Upon request, client is also provided with an optional welcome website shortly after the initial sale. The welcome website is a temporary website Client can modify and send customers to while the custom website is being built. Client may choose not to have a welcome website if so desired
10. Client Approval
Client is responsible for testing the functionality of the website upon Acuta Digital’s request for approval, and notification that the website has been completed. This includes, but is not limited to, functionality of all website pages, database, e-commerce store, payment functions, galleries, forums etc. Upon Client approval of the website to go live Client agrees services have been rendered and functionality of website has been tested and approved by Client.
The Client understands and agrees that if the Client does not respond within 5 business days to Acuta Digital’s request for approval, and notification that the website has been completed, the website along with the functionality of the website and services rendered, will be deemed to be approved by the Client, and the website will be taken live “as-is” or “under construction”.
The Client understands and agrees that if the Client does not respond to requests for missing information a final notification will be sent to the Client. If the Client does not respond within 5 business days to Acuta Digital notification or requests for missing information, the website, along with the functionality of the website and the services rendered, will be deemed to be approved by the Client, and the website will be taken live with the missing information
11. Website Change Requests After Website Goes Live
Acuta Digital agrees to build a website or database to specifications quoted per the original sale and original invoice. Any additions or changes requested after the site has gone live will be billed at Acuta Digital standard hourly labor rate, or according to the updating services associated with Acuta Digital applicable Website Design Plan.
Acuta Digital does not guarantee a time frame for completion of ANY custom database or custom programming. A “custom Database Specifications Summary” may be presented to the Client. Acuta Digital agrees to complete the database design according to the specifications outlined. If the Client does not object or respond to the Database Specifications Summary in writing within 5 business days it will be deemed to be accepted by the Client and Acuta Digital will proceed with development of the custom database as outlined. A Database Specifications Summary may not be presented to the Client for purchase of pre-built database modules and e-commerce store modules.
If Client requests changes to a pre-packaged database, pre-built database module, or e-commerce store module, changes are to be billed to Client at standard hourly rate. There is no guarantee that changes made by Acuta Digital to a pre-packaged database, pre-built database module, or e-commerce store module will work. Client agrees charges are valid and agrees to pay for all fees incurred for Client’s requested changes to pre-packaged databases, pre-built databases modules, or e-commerce store modules. Once work has begun on a database or custom programming there is No Refund if cancelled.
Client is responsible for testing the functionality of the website upon Acuta Digital’s request for approval and notification that the website has been completed. This includes, but is not limited to, testing the functionality of the custom database or programming. Upon Client approval of the website to go live, Client agrees services have been rendered and functionality of website has been tested and approved by Client.
13. Enhancements to Website
Client may purchase enhancements to the website at the time of initial sale or anytime thereafter. Enhancements to the website may include, but are not limited to, custom programming, database, flash, e-commerce, logos, galleries, rollovers, etc. Client’s requests for enhancements to the original sale will be due and billed separately and at the time of request. The monthly hosting fee will be adjusted according to the enhancements requested or the hosting package selected by Client.
Some enhancements such as, but not limited to, flash, custom programming, functionality, etc may require that a specifications summary be presented to the Client. If the Client does not object to the specifications summary within 5 business days, the summary will be deemed to be accepted, and Acuta Digital will proceed with the development as outlined. Once work has begun on enhancements purchased by the client there is No Refund if cancelled. Enhancements or additional services purchased after the initial sale are separate purchases and are in addition to and separate from the original sale. If a client cancels an enhancement the original sale is not cancelled.
14. Additional Services
Client may purchase at an additional monthly cost additional services offered by Acuta Digital. Additional monthly services may include, but are not limited to, the web stat reporting, search engine indexing or mailing list capabilities. Additional monthly services include a monthly fee that is incurred and billed every month beginning from the date of purchase of the additional service. Acuta Digital will Not Refund any fees incurred for additional services or paid by the Client prior to the cancellation effective date for the additional service. Any fees invoiced and incurred are valid and Client agrees to pay. Additional services purchased may be cancelled with 30 days written notice.
15. Technical Support
Acuta Digital technical support department should be contacted at firstname.lastname@example.org for any concerns with Client email accounts or any problems with hosting or functionality of the website after the website is live. If Client uses technical support services, Client acknowledges and understands that Acuta Digital does not warranty that technical support services will meet Client’s requirements or be error free. (See Disclaimer of Warranties and Limitation of Liabilities.)
16. Use and Storage
Client acknowledges that Acuta Digital may establish general guidelines and limits concerning use of Acuta Digital services and may modify these guidelines at any time. Limits may include but are not restricted to, the maximum number of days that email messages or other content will be retained, maximum number of email messages that may be sent from or received by an account, the maximum size of any email messages sent and the maximum disk space that will be allotted on Acuta Digital servers on Client’s behalf. Acuta Digital periodically backs up the websites it hosts. However, Client acknowledges that Acuta Digital is not responsible for backing up Client’s website and data; unless specified. Client should seek appropriate backup solutions.
17. Domain Names Purchased/Hosting Agreement
Monthly hosting is billed every 30 days beginning from the date of site launch date. Monthly hosting is billed from the date of launch date, because hosting costs are incurred immediately. Server space is secured for the developing website and/or for existing Client domain names. In addition, email accounts and support are available from the date of sale and are paid for with monthly hosting fees.
Domain names purchased by Acuta Digital and website designs, databases, stores, or programs created by Acuta Digital are the property of Acuta Digital. At that time ownership of the site and it’s functionality, and domain name may be transferred to the Client’s control upon receipt of the Client’s written request. Sham purchases of sites may not be transacted with the intent and/or result of having a site built, then transferring the site to another hosting provider.
Upon transfer of domain and/or website to Client or another service provider, at anytime, Client agrees that Acuta Digital has met in full its obligation to Client, and Acuta Digital is released of all past and future obligations to the client. Additional work and/or hosting done for Client must be agreed to in writing and paid for by Client.
Domain names are purchased through a third party service. Acuta Digital cannot guarantee the availability of domain names and has no liability for a domain name not being available for purchase after the initial sale. If a domain name is not available for purchase Acuta Digital will assist the Client in selecting and purchasing an alternate domain name. Domain names already owned by the Client remain the property of the Client and renewal of the domain name is the Client’s responsibility. The renewal of any domain names transferred to the Client is the responsibility of the Client.
18. Marketing Representations
Acuta Digital makes no representations as to the marketing of Client’s products, services or sales. Client’s obligation to pay fees due to Acuta Digital are due when website design and hosting services are ready to be launched, and are not contingent upon Client’s marketing of said website. Client is responsible for all marketing of Client’s website.
19. Billing Policy
The initial design set-up fee, lease fee and/or add-on services are due and billed in full at the time of the original sale. (Installment payments may be accepted but total amount is due before website or services are launched or available to Client.) Monthly leasing, hosting and other service fees are billed and due every month, is build in 30 days cycle starting from launch date. of the month Acuta Digital is to render services. The Client hereby requests that Acuta Digital renew and bill monthly applicable leasing fees, hosting fees and additional service add-on fees, if applicable, every 30 days, unless the Client cancels in writing, after 30 days of Acuta Digital receiving said request. (See Cancellation Effective Date section)
Monthly leasing, hosting and additional services fees may be billed on the 15th of each month to coincide with Acuta Digital’s billing cycles. The amount of the initial design set-up fee and monthly hosting fees are detailed on the original invoice confirming amounts of sale. Monthly hosting amounts may vary depending upon the hosting package selected by Client.
Acuta Digital reserves the right to change prices at any time including, but not limited to monthly hosting amounts and hourly design fees.
Acuta Digital accepts payment via check, credit card, debit card, transfers from Clients’ PayPal account, Electronic checks (E-Checks) or instant transfers Client’s bank account. Upon Client’s authorization of payment to Acuta Digital via credit card, debit card or Client’s PayPal account payment, Client thereby authorizes all recurring monthly leasing, hosting and/or additional services fees to be charged to the same method of payment, credit card, debit card or Client’s PayPal account for future charges until such authorization is withdrawn by Client in writing.
The Client may change payment methods including credit card, debit card or Client’s PayPal account with 30 days notice. To change payment methods Client should contact Acuta Digital’s Customer Service department. Client should not email new billing information for security purposes.
20. Billing Disputes
Acuta Digital charges up to a $45.00 fee for returned checks and a $200.00 fee to handle unauthorized credit card transactions. If Acuta Digital does not receive payment in full when due, Acuta Digital may, to the extent permitted by the law of the state of the billing address on file for Client at the time, charge a late fee of up to 1.5% per month (18% per annum), or a flat fee of $5 per month, whichever is greater, on any unpaid balance. Acuta Digital may, to the extent permitted by the law of the state of the billing address on file for Client at the time account is sent to a collection agency, also charge Client for any collection agency fees and/or attorney’s fees billed to Acuta Digital for collecting from Client. Acuta Digital will not honor limiting notations made by a Client on a check.
If Client wishes to dispute a charge Client must first contact Acuta Digital Customer Service department and must allow up to 10 business days for a response. To avoid any dispute about Client’s attempt to contact Acuta Digital, Client must send the request in writing to: Attn: Customer Service Department, Acuta Digital Inc., P.O. Box 6654, Pittsburgh, PA 15212. Requests may be emailed to email@example.com. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation. If Client initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client. (See Arbitration)
21. Termination/Cancellation of Services
Acuta Digital, at its sole discretion, may terminate its service and remove and discard any content, for any reason, including and without limitation, for lack of use, or if Acuta Digital believes Client has violated this Agreement. Acuta Digital may also at its sole discretion and at any time, discontinue providing services, or any part thereof, with or without notice. Client agrees that any termination of access to Acuta Digital services under any provision of this Agreement may be effected without prior notice and that Acuta Digital may deactivate or delete Client’s account and all related information files. Client agrees that Acuta Digital shall not be liable to Client or any third-party for any termination of services. Paid accounts that are terminated will not be refunded. In addition, accounts that become 30 days delinquent will be terminated. Acuta Digital also reserves the right to discontinue the designing of Client’s website at any time, at Acuta Digital’s sole discretion, with an appropriate refund to the Client. Under no circumstances is the refunded amount to exceed the amount collected by Acuta Digital.
If the Client cancels an account before the work is completed or site is live, a cancellation fee is retained per the Cancellation Fee and Refund Policy. Client agrees that all fees incurred and billed prior to cancellation effective date are valid and Client agrees to pay. Upon request for termination of services the website will be removed. A back-up copy of the website may not be maintained by Acuta Digital.
Client agrees to pay all domain fees, hosting fees and additional services fees owed from the time of sale until the cancellation effective date. Transferring a domain name to another provider or non-use of Client’s hosting account does not constitute termination of the account. Client must notify Acuta Digital in writing or via email to terminate the account services and avoid further monthly leasing, hosting and if applicable, add-on service charges. It is Client’s responsibility to secure confirmation from Acuta Digital that the request for termination has been received and no further hosting fees will be billed.
Requests for cancellation of website hosting services or additional services should be sent to the following address:
Attn: Customer Service Department, Acuta Digital Inc, P.O. Box 6654, Pittsburgh, PA 15212
Requests may be emailed to firstname.lastname@example.org. If Client chooses to send request by email, a copy of the request must also be sent by mail as confirmation.
22. Cancellation Effective Date
Client may terminate leasing, hosting and if applicable add-on services with 30 days written notice. The effective date of cancellation is to be 30 days from the date of Acuta Digital’s receipt of written notice to cancel. Any monthly fees scheduled to bill after receipt of written notice to cancel but before the effective date of cancellation are valid and client agrees to pay.
If Client has not paid all design, enhancement, hosting and additional services fees due, such fees are due in full at the time of cancellation and Client authorizes Acuta Digital to collect any outstanding fees due, subject to the Cancellation Fee and Refund Policy. Client understands any pending billing for design fee installments previously agreed to will not be cancelled.
23. Cancellation Fee and Refund Policy
No Refund will be issued on any website cancelled after services have been rendered, including but not limited to, collection of data, the design work having been completed and/or the website taken live.Client agrees that all fees incurred and billed prior to cancellation date are valid and Client agrees to pay. (See Termination).
24. Account Transfer
Requests for transferring the ownership of a website or hosting account from Client to a new owner must be completed in writing by both the current account owner and the new designated owner. The transfer is not valid until a signed request is received by Acuta Digital in writing which is to include payment authorization and new billing account information from the new owner, documentation of the ownership transfer (purchase agreement etc), documentation of copyright transfer, and acceptance of this Agreement by the new Owner.
25. Acuta Digital Inc. Proprietary Rights
Client acknowledges and agrees that Acuta Digital services may contain proprietary and confidential information that is protected by intellectual- and proprietary-rights laws. You will own the Customer Content, but you will not own either the Third-Party Material or Background Technology (defined in Limited License to the Background Technology section). “Customer Content” means all content or information (including, without limitation, any text, music, sound, photographs, video, graphics, data, or software), in any medium, that you provide to Acuta Digital. “Third-Party Material” means any content, software, or other computer programming material used by Acuta Digital to provide the Services that is owned by an entity other than Acuta Digital and either licensed by Acuta Digital or generally available to the public under published licensing terms. Acuta Digital owns and retains all rights to the design of the website we create for your use. If you stop paying the monthly fee for the Services you will no longer be entitled to use the web site for any purpose whatsoever.
Client agrees to not reproduce, duplicate, copy, sell, resell or exploit any portion of Acuta Digital services.
26. Limited License to the Background Technology
“Background Technology” means computer programming/formatting code or operating instructions developed by or for Acuta Digital and used to host or operate your web site or a web server in connection with your we site, and includes, but is not limited to, any files necessary to make forms, buttons, checkboxes, and similar functions and underlying technology or components, including style sheets, animation templates, interface programs that link multimedia and other programs, customized graphics manipulation engines, and menu utilities, whether in database form, non-dynamic or dynamically-driven. Background Technology does not include any Customer Content. Client may not duplicate or distribute any Background Technology to any third-party without the prior written consent of Acuta Digital. All rights to the Background Technology not expressly granted to Customer hereunder are retained by Acuta Digital. Customer agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of the Background Technology.
27. Use of Client Information
Client herby gives permission to Acuta Digital to use samples or links to Client’s custom website designed by Acuta Digital for marketing and advertising purposes, including but not limited to, use in Acuta Digital online portfolio.
28. Third-Party Services
From time to time third parties may offer service to Acuta Digital clients. Use of such third-party services will be at Client’s own risk and subject to the terms and conditions of those third parties. Acuta Digital does not represent nor warrant that use or access to any third-party services will be compatible, uninterrupted, error free, without defects or that Client will be able to access Acuta Digital’s services. Client also agrees that Acuta Digital is under no obligation to provide Client with any enhancements, updates, or fixes to make Acuta Digital services accessible through any third-party applications.
Client understands and agrees that Acuta Digital, its directors, officers, employees and agents are not liable and are held harmless from and against all claims associated with typos or the accurateness of said Client listing. Once Client information has been listed, Acuta Digital will transfer applicable username and password to Client so any adjustments and/or updates will be made directly by Client.
29. Contract Service Providers
Acuta Digital may contract with Contract Service Providers to complete a portion, or all of the Client’s custom website and/or additional services or features.. The Client agrees not to do business directly with the Contract Service Provider, nor to remit payment to the Contract Service Provider or any Acuta Digital employee directly for services. All payments for services rendered must be made directly to Acuta Digital. Contract Service Providers are required to enter into employment contracts and to follow company policies and procedures. Contract Service providers are provided with only the information needed to complete the design or development portion of the Client’s website and do not have access to Client’s personal information including payment information.
30. Disclaimer of Warranties
CLIENT’S USE OF Acuta Digital SERVICES IS AT CLIENT’S OWN RISK. Acuta Digital SERVICES ARE PROVIDED “AS IS”. Acuta Digital DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Acuta Digital DISCLAIMS ANY WARRANTIES REGARDING Acuta Digital’S SERVICES INCLUDING THAT THEY WILL MEET CLIENT’S REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. Acuta Digital DISCLAIMS ANY WARRANTIES REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF Acuta Digital’S SERVICES, INCLUDING RESULTING SALES AND WEB TRAFFIC. Acuta Digital DISCLAIMS ANY WARRANTIES REGARDING THE MARKETING OF CLIENT’S PRODUCTS, SERVICES, SALES, OR WEBSITE. Acuta Digital DISCLAIMS ANY WARRANTIES REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, ADVERTISED OR OBTAINED THROUGH Acuta Digital SERVICES, OR LINKS PROVIDED BY Acuta Digital’S SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE PROVIDED BY Acuta Digital OR OBTAINED THROUGH LINKS PROVIDED THROUGH Acuta Digital SERVICES.
CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF Acuta Digital SERVICES ARE DONE AT CLIENT’S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA OR OTHER LIABILITY THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT.
31. Limitation of Liability
CLIENT UNDERSTANDS AND AGREES THAT Acuta Digital, IT’S SUBSIDIARIES, AFFILIATES, OFFICERS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, (EVEN IF Acuta Digital HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OF OR INABILITY TO USE Acuta Digital SERVICES, RELIANCE ON Acuta Digital SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF Acuta Digital SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES.) THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED THROUGH Acuta Digital SERVICES OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S DATA OR TRANSMISSIONS AND ANY STATEMENTS OR CONDUCT OF A THIRD PARTY OR ANY OTHER MATTERS RELATING TO Acuta Digital SERVICES. SUCH LIMITATION SHALL FURTHER APPLY, WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED IN ANY WAY TO Acuta Digital SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.
Without limiting the foregoing, under no circumstance shall Acuta Digital be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, or other casualties, illness, accidents, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non performance of third parties, or loss of or fluctuations in heat, light or air conditioning. Acuta Digital full and complete liability, for any reason whatsoever, shall be limited to the full refund of all monies paid to Acuta Digital.
32. Tort Claims
Client waives all tort claims against Acuta Digital, it’s subsidiaries, affiliates, officers, employees and agents. The relationship between the parties is contractual in nature only. Client waives any tort claims that arise by act, or omission.
Client agrees to defend, indemnify and hold harmless Acuta Digital, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees that may arise or result from any content Client submits, posts, transmits or makes available through Acuta Digital’s services, from any product sold by Client, its agents or employees or assigns, from any service provided or performed or agreed to be performed by Acuta Digital or from Client’s violation of this Agreement or Client’s violation of any rights of another. Client further agrees to defend, indemnify and hold harmless Acuta Digital, its directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising from or related to contracts, representations, agreements, promises, etc, made between Client and third parties, or arising from or related to Client’s negligence toward third parties.
Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and in English and may be delivered personally, or may be sent by email, facsimile or certified mail, return receipt requested, to the address set forth below. If Client chooses to send request by email or facsimile, a copy of the request must also be sent by mail (to the address below) as confirmation of the request.
Acuta Digital Inc.
P.O. Box 6654
Pittsburgh, PA 15212
35. Contact Acuta Digital
Client may contact Acuta Digital at 412-235-1638 M-F from 9:00 - 5:00 Eastern Standard Time. Client may visit our website at www.acutadigital.com at any time. Client may also email Acuta Digital at the following department email addresses:
36. Negative Comments/Slander
Client specifically agrees not to engage in negative comments or slander regarding Acuta Digital, including but not limited to publishing, or causing to be published, complaints or derogatory comments regarding Acuta Digital in any format, including but not limited to, print, newspaper, television, radio or on internet complaint sites, blogs or other public internet forums. Should there be a breach of this condition Acuta Digital will be entitled to liquidated damages in the amount of $2,500.00 for each publishing or posting. If said breach occurs on an internet complaint site each hit to that website will be considered an individual breach of this condition, and subject to additional liquidated damages of $100 per occurrence. Further, Acuta Digital shall be entitled to litigate this matter, and obtain the money damages together with injunctive relief. The prevailing party to that litigation shall be entitled to an award of attorney’s fees.
In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision the remainder of this Agreement shall remain valid and enforceable according to its terms.
This Agreement shall be governed by the laws of the State of Pennsylvania. All legal proceedings are to be submitted exclusively to the jurisdiction of the courts in the State of Pennsylvania, County of Allegheny.
In lieu of litigation, Client agrees to binding arbitration if requested by Acuta Digital. Arbitration will be through the Better Business Bureau or other neutral third-party Arbitrator to be selected by Acuta Digital. If Client initiates a credit card dispute the decision of the credit card company is made through an arbitration process and the decision of the credit card company shall be binding upon Client. (See Billing Disputes)
Acuta Digital may investigate any reported violations of this agreement, its policies or any other complaints and take any action it deems appropriate to protect its systems, facilities, Clients, and/or third parties.
41. General Information
This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior oral or written agreements (including, but not limited to, any prior versions of this Agreement). Any modifications to this agreement must be in writing and signed by an authorized officer of Acuta Digital. All representations not in writing are null and void. Written agreements may include, but are not limited to, emails and electronic acceptance of this Terms of Service.
Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of Acuta Digital’s services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this Agreement are for convenience only and have no legal or contractual effect.