(the Agreement) sets forth the terms and conditions on which you will be allowed to use inkFrog, Inc. (inkFrog) services.
Eligibility; Registration. a. To be eligible for our Services, you must be at least eighteen (18) years old and a resident of the United States. In the event you are not a resident of the United States and wish to use our Services, you agree to submit yourself to jurisdiction in the United States and the State of Arizona. b. To use the Services, you must submit a complete registration form on behalf of yourself or the corporation, partnership or other legal entity that will be using the Services. By accepting this Agreement, you represent that (a) you are eighteen (18) or older and, if applicable, (b) you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Services. You agree to provide current, complete and accurate registration information, and then update the information as required to keep the registration information current, complete and accurate.
Intellectual Property. All logos, domain names, website content and other intellectual property that entail our products and services are the exclusive property of inkFrog. You will not copy, imitate, modify, alter, amend or use any of the inkFrog intellectual property without our prior written consent.
User Conduct. While using our Services, you agree to the following:
To comply with all applicable laws, statutes, ordinances and regulations related to use of the Services;
You may not use our Services to engage in fraud or other illegal activity, or advocate illegal activity;
You may not use our Services to infringe upon or violate any right of a third party including: (a) trademark, copyright, patent, trade secret or other proprietary, intellectual property or contractual rights; (b) right of privacy (i.e. you must not distribute another person's personal information of any kind without their express permission) or publicity; or (c) any confidentiality obligation;
To comply with the terms and conditions of all agreements you have with third parties, including but not limited to eBay;
You will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the inkFrog website, or any transaction conducted on the website. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure or limits our ability to provide the Services. You will not unload, send or post any information that contains a virus or other harmful component, or otherwise tampers with, impairs or damages the inkFrog website;
You agree not to collect, copy, reproduce, alter, modify, create derivative works, or publicly display any content or information from the inkFrog website without the prior written consent of inkFrog and the appropriate third-party.
You agree not to use any robot, spider, or other automatic device or routine to access or interface with the inkFrog website.
You will not use or submit any materials that are (a) defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) bigoted, hateful, or racially or otherwise offensive; (c) violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity.
You are solely responsible for all information, data, text, graphics, photographs, images, or other materials you provide to inkFrog or other users of our Services, including but not limited to all information you submit to eBay that inkFrog obtains via the Services (i.e. such as eBay email addresses, user IDs, passwords), and you acknowledge by using the inkFrog Services that inkFrog is acting only in a passive manner for your online storage, distribution, and publication of your materials;
You will only use the space allocated to you in the Image Library for storing images used in advertisements placed through the Services;
By using the Services and the inkFrog website, you agree that inkFrog has the right to access, monitor, remove, modify, or disable access to any or all of you materials at any time at the sole discretion of inkFrog;
inkFrog cannot and does not assure that other users will comply with the foregoing User Conduct rules or any other provisions of this Agreement, and, as between you and inkFrog, you assume all risk of harm or injury resulting from any such lack of compliance.
Passwords & Security. You will at all times maintain the confidentiality of your user names and passwords. In the event there is a breach of security through your account, you must immediately change your password.
You agree to waive all claims against inkfrog in the event the security of your account is compromised. Further, you agree to indemnify, defend, and hold inkfrog harmless in the event inkfrog incurs damages to its intellectual property or other financial damages due to a breach of confidentiality.
Fees & Payment Terms. You agree to pay all fees and taxes associated with using our Services. All fees are in U.S. Dollars unless stated otherwise. inkFrog requires a monthly membership which covers use of all Services. Changes to fees and payment terms are effective immediately unless otherwise indicated, and it is your responsibility to check for any changes. Payment of inkFrog invoices will be set-up and paid automatically through either PayPal or a credit card accepted by inkFrog. All such payment information, including all Paypal information and credit card information will be on file with inkFrog. You can also elect to prepay inkFrog for a minimum of three (3) months via PayPal. Failure by you to make all timely payments may result in inkFrog immediately terminating all Services, at the sole discretion of inkFrog. Furthermore, in the event your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms, which include but are not limited to retaining collection agencies and legal counsel to pursue collection.
Excessive Usage. Excessive users (Excessive Users) will be charged additional fees for inkFrog services without notice. inkFrog may deem a user an Excessive User in the event that inkFrog determines, in its sole and absolute discretion, that such user is scheduling or launching items beyond the scope charged by inkFrog pursuant to inkFrog's package prices. Examples of an Excessive User include, but are not limited to, a user that has: a. One calendar day where 4,000 or more eBay items are scheduled and/or launched; or b. One calendar month where 50,000 or more eBay items are scheduled and/or launched 50,000 or more items that are saved as profiles and/or in the library. c. One calendar month where there are over 5,000 images hosted in a users account
inkFrog reserves the right to immediately terminate the accounts of all "Excessive Users at inkFrog's sole and absolute discretion. In addition, inkFrog reserves the right to charge all Excessive Users additional charges beyond package prices to use inkFrog Services. Such charges are part of our fees, and must be paid immediately in order to remain an inkFrog user with an active account. The amount of these charges are in inkFrog's sole and absolute discretion. Companies, individuals, or other business entities, including but not limited to all affiliated entities will be deemed an "Excessive User" in the event that inkFrog finds a user attempting to circumvent this Excessive Usage rule by setting up additional inkFrog accounts that post to multiple eBay accounts.
Abuse, Suspension, Termination. Without limiting our other remedies, we may limit, suspend, or terminate our Services and your user account(s) at our sole discretion, without notice, and for any reason in the event we think you are abusing our services, you fail to follow the terms and conditions of this Agreement, you are creating problems or potential legal liabilities, you are infringing on the intellectual property rights of us, any of our affiliates, any third parties, or you are acting inconsistent with our policies or the spirit of our policies. In the event inkFrog limits, suspends, or terminates your account, all monies paid to inkFrog are non-refundable.
Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without our prior written consent. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time without your consent.
Limitation of Liability. Under no circumstances, including but not limited to negligence, will inkfrog be liable to you or any other person or entity for any direct, indirect, incidental, punitive, special or consequential damages including lost profits, personal injury (including death), loss of materials, loss of content, loss of files, loss of goodwill, costs of procurement of substitute goods and services, and property damage of any nature whatsoever, that result from (a) the use of, or the inability to use, the inkfrog website or content, or (b) the conduct or actions, whether online or offline, of any user of the inkfrog website or any other person or entity, even if we have been advised of the possibility of such damages. In the event inkfrog is found liable, inkfrogís total liability to you for all damages, losses and causes of action whether in contract, tort (including but not limited to negligence) or otherwise will not exceed the amount paid by you in the past six (6) months, if any, or $100, whichever is less.
Release. If you have a dispute with one or more users, you release us (which includes but is not limited to our officers, directors, agents, subsidiaries, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
No Agency. No agency, partnership, joint venture, employee-employer, franchisee-franchisor, or principal-independent contractor relationship is intended or created by this Agreement.
Cancellation. We reserve the right to cancel all inactive accounts at our sole discretion and without notice.
Indemnification. By accepting this Agreement, you agree to indemnify, defend, and hold inkFrog and its officers, directors, agents, subsidiaries, joint ventures, and employees harmless from all claims, judgments, costs, expenses, or liabilities, including reasonable attorneys fees and costs arising out of any acts or omissions made by a third party arising from the breach of this Agreement or a violation of law or the rights of a third party.
Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is in violation of any statute or public policy, then only the portions of this Agreement which violate such statute or public policy shall be stricken. All portions of this Agreement which do not violate any statute or public policy shall continue in full force and effect. Further, any court order striking any portion of this Agreement shall modify the stricken terms to give as much effect as possible to the intentions of the parties under this Agreement.
Attorneys Fees. In the event suit is brought about or an attorney is retained by inkFrog pursuant to this Agreement to enforce the terms hereof, to collect any monies due hereunder, or to collect money damages for a breach hereof, inkFrog is entitled to recover in addition to any other remedy, regardless of the outcome of such suit, the reimbursement for reasonable attorneys fees, court costs, costs of investigations, expert witnesses, discovery and other related expenses incurred in connection therewith as determined by the court and not a jury.
Governing Law / Venue. This Agreement shall be governed by and construed under and in accordance with the laws of the State of Arizona and with the laws of the United States of America. Venue for any action will take place in Phoenix, Arizona, United States of America. By accepting this Agreement, you subject yourself to jurisdiction in federal and state courts located in Phoenix, Arizona, United States of America.
Authority. Each individual that agrees to this Agreement on behalf of a corporation or other entity warrants that he is authorized to do so and that this Agreement will constitute the legally binding obligation of the entity which he represents.