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Terms & Conditions + Customer Agreement
This Agreement is made and entered into by and between Auxway LLC, a Nebraska company, d/b/a Control Yours (hereinafter called "Control Yours"), and applicant as named in the application (hereinafter "Customer").
Control Yours is a service-based website hosting company that uses an online CMS to provide a vehicle for Customer to easily edit and manage the information and content on Customer's website. Additionally, Control Yours offers social media Ad Management services.
This customer agreement is a legal agreement between Control Yours and Customer. By executing this Agreement, Customer represents and warrants that Customer: (a) is authorized to sign for and bind the contracting party, and (b) agrees to be bound by all of the terms and conditions of this Agreement, including the disclaimers and limitations of liability set forth in Sections 10 and 11 below.
Control Yours provides website hosting services on a Membership basis. Membership includes all the essentials for managing a basic website: hosting, maintenance, domain registration, and 1 free professional email address.
Additionally, Control Yours offers a la carte services for developing, creating, and managing social media advertisements and campaigns.
Control Yours offers Membership at $100/month. Additional customizations and upgrades to Memberships are available for additional charges. Prices and services for upgrades and customizations are subject to change. Please refer to the Membership page of the Control Yours website for current offerings and prices.
Pricing for Ad Management services can be found on the Ad Management page of the Control Yours website, or may be quoted by request.
All payments shall be made electronically through the Control Yours website and authorized through the third party credit card payment gateway Wells Fargo Merchant Services, LLC with a preferred credit card or debit card of the Customer’s choice or transferred electronically from customer's designated bank account via an ACH transaction also authorized through the third party Check Commerce. If Customer chooses to make payments to Control Yours via an ACH transaction, Customer is authorizing Control Yours to automatically withdraw the monthly payment amount associated with the plan's price, chosen by Customer, when completing the online signup form on the Control Yours website.
If Customer is not able to pay via electronic means, they must notify Control Yours in writing and receive a confirmation of authorization from Control Yours. Payments must be made payable to Control Yours, and mailed or delivered to Auxway LLC, d/b/a Control Yours, at the following address: 304 E Railroad St., Kearney, Nebraska 68847.
If Customer fails to make payment in full with respect to any invoice within ten (10) days of its due date, a late fee will be assessed in the amount of $10.00. If Customer fails to make payment with respect to any invoice within thirty (30) days of its due date, Control Yours may cancel Customer's right to access its CMS immediately, without further notice, and Customer will be required to pay an early termination fee in the amount of 50% of the amount due and owing under the balance of the term of this Agreement. In addition thereto, the entire unpaid balance, including the aforementioned early termination fee, shall immediately become due and owing, and Control Yours shall have the right to immediately collect the unpaid balance from Customer. Control Yours shall have all rights granted to it under the terms and conditions of this Agreement, and all other rights under the laws of the State of Nebraska for the proper and effective enforcement of its contract rights. The failure of Control Yours to exercise any remedy provided to it by law or under the terms of this Agreement shall not constitute a waiver of Control Yours' right to such remedies.
If a third party charges an increased access fee or any other fees to Control Yours related to the service described in Section 3.A above, Control Yours reserves the right to request at any time a price increase for such Control Yours services, and, if Customer fails to accept such price increase, Control Yours shall have the right to terminate this Agreement on at least 30 days prior notice. If this Agreement is terminated pursuant to this paragraph, Customer will not be subject to any early termination fee.
Any technical support, software, customization or training services requested in writing by Customer which are not required to be performed by Control Yours hereunder shall be subject to the availability of Control Yours' technical staff and shall be billed at Control Yours then current time and material rates, plus out-of-pocket expenses, and subject to such other terms and conditions which may be agreed upon in writing before such services are performed. Any optional enhancements, modifications, features, products or services that may from time to time be announced by Control Yours with respect to Control Yours' services will be offered to Customer and, if Customer elects to utilize such enhancements, modifications, features, products or services, Customer shall pay the fee, if any, imposed by Control Yours therefore.
This Agreement shall begin on the date hereof and continue until terminated. See Section 7 for details on cancellation policy.
If Customer chooses to terminate this agreement or if this agreement is canceled pursuant to Section 7 of this agreement, Customer will have the opportunity to exit with their digital website information from Control Yours within the first week after termination. This information will be provided in the form of a ZIP file containing all client content and non-proprietary code. The Customer is responsible for any 3rd Party charges or commitments put in place, by either Control Yours or Customer, during the term of the Agreement.
In the case of Customer termination of this agreement or cancellation pursuant to Section 7.1/7.2, the remaining balance on the term of this Agreement is due immediately. If the agreement is cancelled pursuant to Section 7.3 of this Agreement, Customer is liable only for accrued expenses through the current monthly billing cycle.
Customer is solely responsible for the content of its website and any Ad Management content (though Control Yours may provide ideation and content creation services as part of certain paid offerings). Control Yours does, however, reserve the right to cancel Customer's right to access its account if Control Yours believes Customer's content may create liability for Control Yours. Customer's use of Control Yours' hosting services per this Agreement is subject to all applicable local, state, national and international laws and regulations (including, without limitation, those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). Customer agrees:
In accordance with this Agreement, Control Yours may grant Customer a limited license to use certain custom solutions pursuant to the terms and conditions of this Agreement. Customer acknowledges that certain software is proprietary to Control Yours and may be protected by copyrights, trademarks, product marks, patents, or other proprietary rights and law. Therefore, Customer is only permitted to use the software as expressly authorized by this Agreement.
Further, Customer may not reverse, engineer, de-compile, alter, modify, disassemble or otherwise attempt to derive source code from the Software. All rights not expressly granted in this Agreement are reserved to Control Yours. Control Yours also reserves the right to list Customer and Customer’s website in any marketing and/or advertising. Customer’s website may contain Control Yours’ logo and link indicating that the website was developed, created and/or maintained by Control Yours.
Customer will use the user name and password that they designate to access their Control Yours account. Customer agrees to carefully safeguard all of its passwords. Customer is solely responsible if it does not maintain the confidentiality of passwords and account information. Furthermore, Customer is solely responsible for any and all activities that occur under its account. Customer agrees to immediately notify Control Yours of any unauthorized use of its account or any other breach of security known to Customer, including if Customer believes that its password or account information has been stolen or otherwise compromised.
Separate password and security protocols will be necessary for Ad Management services, the terms of which will be provided once the scope of Ad Management services is determined.
Control Yours may immediately cancel Customer's license to use Control Yours' CMS, or any access to Ad Management services, per this Agreement if:
Membership for Customer begins immediately once signup form submission has been sent and payment process is successful.
If you are not satisfied with your service, you may notify Control Yours within 30 days of your payment. If we cannot resolve your concerns to your satisfaction, we may issue a partial or complete refund based upon: the nature of the project, any necessary expenses already paid, the terms and specifications outlined in this document, and any additional factors that may be relevant.
Customer expressly agrees that use of this service is at its sole risk. The service is provided on an "As is" basis. Control Yours expressly disclaims 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. Control Yours makes no warranty that the service will meet Customer's requirements, or that the service will be uninterrupted, timely or error free, nor does Control Yours make any warranty as to the results that may be obtained from the use of the service or the accuracy of any other information obtained through the service, or that defects in the software will be corrected. Customer understands and agrees that any material and/or data downloaded or otherwise obtained (including plug-ins) through the use of the service is at customer's own risk and customer will be solely responsible for any damage to Customer's computer system or loss of data that results from the download of such material and/or data. No information or device, whether oral or written, obtained by Customer from Control Yours or through the service shall create any warranty not expressly made herein. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to Customer.
In no event shall Control Yours be liable for any indirect, incidental, special or consequential damages resulting from the use or the inability to use the service, including, but not limited to, damage or loss of profits, even if Control Yours has been advised of the possibility of such damages. Control Yours' liability to Customer or any third party is limited to $50.00. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above limitations may not apply to Customer.
Control Yours shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond Control Yours' reasonable control.
Customer hereby agrees, at its expense, to indemnify, defend and hold Control Yours harmless from and against any loss, costs, damages, liability or expense arising out of or relating to (a) a third-party claim, action or allegation of infringement based on information, data, files, or other content submitted by Customer; or (b) any fraud or manipulation, or other breach of this Agreement by Customer.
This Agreement constitutes the entire agreement between the parties covering everything agreed upon or understood in the transaction. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind, its conditions or inducements to the execution hereof or in affect between the parties hereto, except as expressed in this Agreement.
This Agreement, and each and every document related to this Agreement, shall be governed by and construed in accordance with the laws of the State of Nebraska. This Agreement was negotiated, in part, in Buffalo County, Nebraska.
This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
If any provision of this Agreement is held to be invalid or unenforceable, such provisions shall be struck and the remaining provisions shall be enforced.
Control Yours' failure to act with respect to any breach by Customer does not waive Control Yours' right to act with respect to subsequent or similar breaches, and shall not be construed as waiving any such terms and conditions of this Agreement, and such terms and conditions shall continue and remain in full force and effect as if no such waiver had occurred.
In the event of any dispute under or relating to the terms of this Agreement, or the breach thereof, the Parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. If no agreement can be reached within 30 days, then, upon notice by either Party to the other, all disputes, claims, questions or disagreements shall be finally settled by arbitration administered by a member of the American Arbitration Association in Nebraska; or if the parties mutually agree to another private arbitration or mediation service.
Unless otherwise provided in this Agreement, any notice required or permitted to be given to Customer under this Agreement (including invoices and/or billing statements) shall be deemed to have been duly given if and when deposited in the United States mail, properly stamped, and addressed to the postal address as set forth in the Customer Application or to the email address as set forth in the Customer Application.
Unless otherwise provided in this Agreement, any notice required or permitted to be given to Control Yours shall be deemed to have been duly given if and when deposited in the United States mail, properly stamped, and addressed to the following address:
c/o DBA Control Yours
P.O. Box 661
Kearney, NE 68848
Time is of the essence in the performance of this Agreement and all conditions contained herein.
Control Yours and Customer, intending to be legally bound, have caused this Agreement to be executed by their authorized representatives as of the date first set forth above. This document has been electronically signed by an authorized officer of Auxway LLC, d/b/a Control Yours, making it a legally bound agreement for the year of 2015.
/Auxway LLC, d/b/a Control Yours/
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