Universal Terms of Service for Floyd Innovations Software and Services

This Agreement ("Agreement") is by and between Floyd Innovations LLC ("Floyd Innovations") a New York company and You, Your heirs, agents, successors and assigns ("You"), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of Floyd Innovations software (“Software”) and services (“Services”) and explains Floyd Innovations’ obligations to You and Your obligations to Floyd Innovations in relation to the Software and Services You purchase.

This Agreement as well as any additional Floyd Innovations policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and Floyd Innovations concerning Your use of Floyd Innovations’ Software and Services, and supersede and govern all prior proposals, agreements, or other communications. By purchasing Floyd Innovations’ Software or Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which Floyd Innovations may establish from time to time, and any agreements that Floyd Innovations is currently bound by or will be bound by in the future. You may view the latest version of this Agreement on the website.

The General Terms in Section A apply to all customers of Floyd Innovations. The Software and Services Specific Agreements incorporated in Section B apply only to customers who have purchased those referenced Services.

You agree that Floyd Innovations may modify this Agreement and the Services from time to time. You agree to be bound by any changes Floyd Innovations may make to this Agreement when such changes are made. If You have purchased Services or Software from Floyd Innovations, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your usage, Floyd Innovations will not refund any amounts You have paid. You agree that You will be responsible for notifying Floyd Innovations should You desire to terminate Your use of Floyd Innovations' Services. Notification of Your intent to terminate must be provided to Floyd Innovations no later than five days prior to Your billing date.

You agree to maintain accurate information by providing updates to Floyd Innovations, as needed, while You are using Floyd Innovations’ Services. You agree that Floyd Innovations may use and rely on any such information provided by You for all purposes in connection with Your Services, subject to Floyd Innovations’ Privacy Policy. If You provide any information that is inaccurate, Floyd Innovations has the absolute right, in its sole discretion, to terminate its Services and close Your account.

3. PRIVACY.

You can view Floyd Innovations’ Privacy Policy on the website, which is incorporated herein by reference, as it is applicable to all Company Software and Services. The Privacy Policy provides Your rights and Company’s responsibilities with regard to Your personal information. Company will not use Your information in any way inconsistent with the purposes and limitations provided in the Privacy Policy.

4. ACCOUNT SECURITY.

You agree You are entirely responsible for maintaining the confidentiality of Your customer number/login, password, credit card number, and shopper PIN (collectively, the "Account Access Information"). You agree You are entirely responsible for any and all activities that occur under Your account. You agree to notify Floyd Innovations immediately of any unauthorized use of Your account or any other breach of security. You agree Floyd Innovations will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by Floyd Innovations or another party due to someone else using Your Account Access Information.

5. NO UNLAWFUL CONDUCT OR IMPROPER USE.

As a condition of Your use of Floyd Innovations’ Software and Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to Floyd Innovations if, for any reason, Floyd Innovations takes corrective action with respect to Your improper or illegal use of its Services.

Floyd Innovations reserves the right at all times to disclose any information as Floyd Innovations deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Floyd Innovations’ sole discretion.

If You have purchased Services, Floyd Innovations has no obligation to monitor Your use of the Services. Floyd Innovations reserves the right to review Your use of the Services and to cancel the Services in its sole discretion. Floyd Innovations reserves the right to terminate Your access to the Services at any time, without notice, for any reason whatsoever.

Floyd Innovations reserves the right to terminate Services for any reason, including, but not limited to, excessive use of resources, illegal activities, or any other activity that Floyd Innovations, determines, in its sole discretion, is contrary to the intended use of the Services.

6. NO SPAM; LIQUIDATED DAMAGES.

You agree Floyd Innovations may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay Floyd Innovations liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise You agree to pay Floyd Innovations' actual damages. You acknowledge You have read and understand and agree to be bound by the terms and conditions of Floyd Innovations’ Anti-spam Policy, available on the website. Such terms and conditions are applicable to the use of all Floyd Innovations Software and Services and are incorporated herein.

7. INTELLECTUAL PROPERTY.

You agree that Floyd Innovations or its licensor holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated.

8. USE OF FLOYD INNOVATIONS SOFTWARE.

If You have licensed software from Floyd Innovations, Floyd Innovations grants You a limited, non-exclusive, nontransferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time.

You agree to not alter or modify the Software. You agree You are not authorized to combine the Software with any other software program, create derivative works based upon the Software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.

Floyd Innovations provides this Software “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.

9. FEES AND PAYMENT.

As consideration for the Software or Services purchased by You and provided to You by Floyd Innovations, You agree to pay Floyd Innovations at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. Floyd Innovations expressly reserves the right to modify pricing through email notification and/or notice on its Web site. Payment may be made by You by providing either a personal check, or using PayPal (collectively, the "Payment Method"). Any Payment Method provided must be capable of handling any applicable charges to Your account.

You agree that You are solely liable for arranging that Your Services are renewed, and that Floyd Innovations shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your Services.

10. REPRESENTATIONS AND WARRANTIES.

You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement.

11. LIMITATION OF LIABILITY.

IN NO EVENT SHALL Floyd Innovations BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF FLOYD INNOVATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, Floyd Innovations’ liability is limited to the full extent permitted by law. You agree that in no event shall Floyd Innovations’ maximum aggregate liability exceed the total amount paid by You for the particular Software or Service in dispute purchased from Floyd Innovations .

12. DISCLAIMER OF WARRANTIES.

Floyd Innovations 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. Services are provided on an "As Is" and "As Available" basis. Floyd Innovations makes no warranty that its services will meet your requirements, or that the services will be uninterrupted, timely, secure, or error free, or that defects will be corrected. Floyd Innovations does not warrant, nor make any representations regarding the use, or results of, any of the services it provides, in terms of their correctness, accuracy, reliability, or otherwise.

Some jurisdictions do not allow the disclaimer of implied warranties, in which event that foregoing disclaimer may not apply to You.

13. INDEMNIFICATION.

You agree to defend, indemnify and hold harmless Floyd Innovations and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys' fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with Floyd Innovations whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from Floyd Innovations or Your breach of this Agreement or incorporated agreements and policies.

14. GOVERNING LAW, VENUE; WAIVER OF TRIAL BY JURY.

This agreement shall be deemed entered into in the State of New York. You agree that the laws and judicial decisions of New York County, New York, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement.

15. NOTICES.

You agree that all notices (except for notices concerning breach of this Agreement) from Floyd Innovations to You may be posted on our Web site. Notices concerning breach will be sent either to the email or postal address You have on file with Floyd Innovations. In either case, delivery shall be deemed to have been made five (5) days after the date sent.

Notices from You to Floyd Innovations shall be made either by email, sent to the address provided on the Floyd Innovations Web site, or first class mail to Floyd Innovations’ address at:

Floyd Innovations LLC, 101 East 116^th Street, Suite 4C, New York, NY 10029

16. HEADINGS.

The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.

17. ENTIRE AGREEMENT.

You agree that this Agreement including the policies and agreements it refers to (i.e. our Dispute Resolution Policy, etc.) constitute the complete and only Agreement between You and Floyd Innovations regarding the Services contemplated herein.

18. SEVERABILITY.

You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.

19. WAIVER.

The failure of Floyd Innovations to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of Floyd Innovations thereafter to enforce such provisions.

20. FORCE MAJEURE.

Floyd Innovations will make every effort to keep its Web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold Floyd Innovations liable for any of the consequences of such interruptions.

21. SURVIVAL.

Sections 1, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive any termination or cancellation of this Agreement.

22. NO THIRD PARTY BENEFICIARIES.

Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

B. SOFTWARE AND SERVICES SPECIFIC AGREEMENTS

If You purchase Services from Floyd Innovations, the following Software and Services specific agreements shall apply and are incorporated within this Agreement in addition to Sections 1-21:

• Business Website Package Hosting Service Agreement
• Email/Webmail Services User Agreement

• Custom Website Design Service Agreement

Last updated: Wednesday, February 20, 2008

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