Terms of Service

GHOSTMEMO Online Web Service Subscription Agreement

Last Updated: May 21, 2012

GHOSTMEMO ("Provider") will provide you access to Web Services and related website located at ghostmemo.com or such other Web addresses or uniform resource locators as may be specified by the Provider (collectively, the "Site"), specifically and solely for the purposes of receiving services under the related Subscription Plan. Please read carefully the following terms and conditions (this 'Agreement'). This Agreement governs your access to and use of the Site, Web Services, and constitutes a binding legal agreement between you (referred to herein as "You" or "Customer") and Provider.

YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING THE CHECKBOX OR BY ACCESSING OR USING THE SITE, OR WEB SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, OR WEB SERVICES. If you accept or agree to this Agreement on behalf of a company or other legal entity to this Agreement and, in such event, "Customer", "You" and "Your" will refer and apply to that company or other legal entity.

Definitions
  1. "Web Services" consist of a set of software programs, interfaces, and webpages running on computers hosted at Provier sites or at third-party hosting facilities accessible via the Internet as described in this Agreement and the Site.

  2. "Subscription Plan" means all the subscription plans selected by the Customer in connection with the purchase of the use of the Web Services. The Provider posts the available subscription plans and the specific use of the Web Services provided by each subscription plan on the Site, as they may be updated by the Provider from time to time. The current subscription plans offered with respect to the Web Services are located at http://www.ghostmemo.com/open/plans.

Modification

Provider reserves the right to modify, discontinue or terminate the Site or Web Services, or to modify this Agreement, at any time and without prior notice. If Provider modifies this Agreement, Provider will post the modification on the Site or provide you with notice of the modification. Provider will also update the "Last Updated Date" at the top of this Agreement. By continuing to access or use the Site or Web Services, after Provider has posted a modification on the Site or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Site and Web Services.

Registration

In order to access the Site or Web Services, You must register to create an account ("Account"). During the registration process, You will be required to provide certain information and You will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Provider reserves the right to suspend or terminate Your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding Your password. You agree not to disclose Your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify Provider of any unauthorized use of Your Account.

30 DAY FREE TRIAL

When Customer subscribes to a Subscription plan that offers a trial period, the Provider will provide a restricted use, free trial of the Site and Web Services to Customer for thirty (30) days (the “Free Trial”). THE RESTRICTIONS OF THE FREE TRIAL ARE DETERMINED SOLELY AT THE DISCRETION OF THE PROVIDER AND MAY BE MODIFIED AT ANY TIME. THE FREE TRIAL IS PROVIDED ONCE AND ONLY UPON YOUR FIRST REGISTRATION AT THE SITE FOR A SINGLE THIRTY (30) DAY PERIOD. THE FREE TRIAL IS NOT PROVIDED UPON SUBSQUENT REGISTRATION BY CUSTOMER. After the Free Trial period expires, Customer will be billed on a monthly basis for the regular price of the Subscription plan.

Purchase

Once Customer selects and purchases a Subscription Plan, access to the Site and Web Services, will be provided in accordance with the terms of said Subscription Plan selected by the Customer via the Site.

Web Services License

Subject to Customer's compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access and use the Web Services solely for said Customer's personal use. This Agreement governs Customer's access to and use of the Web Services and the Site. Customer acknowledges and agrees that but for this Agreement, Customer would have no rights or access to the Web Services and the Site.

Enforcement

Except as otherwise provided herein, Customer is responsible for all of Customer's activities occurring through its use of the Web Services.

Telecommunications and Internet Services

Customer acknowledges that the use of the Web Services by Customer is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Web Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.

Term and Termination

This Agreement will commence when You click "I accept" or "I agree" on the date of purchase (the "Start Date") of the Subscription Plan, if any, that you select to purchase to use the Web Services. This Agreement shall continue from the Start Date through the initial term specified by the Subscription Plan (the "Initial Term"). At the end of the Initial Term, this Agreement will automatically renew on the day following the last day of the Initial Term ("First Renewal Date") and will automatically renew thereafter on the first day of each renewal period ("Renewal Period") as specified by the Subscription Plan, unless either party provides to the other written or electronic notice of termination in accordance with the terms of this Agreement. The Initial Term specified by the Start Date and the First Renewal Date of the Subscription Plan, and each subsequent renewal term specified by the First Renewal Date and the Renewal Period of the Subscription Plan are collectively the "Term".

Right to Terminate

Either party may terminate this Agreement for any reason prior to the beginning of each renewal term as indicated by the First Renewal Date and the Renewal Period of the Subscription Plan by delivering written or electronic notice of termination at least ten (10) days prior to the beginning of each renewal term. Notwithstanding the foregoing, either party may terminate this Agreement at any time in the event that the other party breaches any material term of this Agreement and fails to remedy such breach within ten (10) business days after receipt of a written notice of any such breach, or if such breach cannot be remedied within that period of time, fails to demonstrate to the satisfaction of the non-breaching party that it is taking steps reasonably necessary to remedy the breach.

Survival

The provisions of the Definitions Section and Sections that by their nature should reasonably survive, and any amendments to the provisions of the aforementioned will survive any termination or expiration of this Agreement.

Subscription Fees

Customer will pay to Provider fees ("Subscription Fees") in connection with the Subscription Plan and the Support Plan selected by Customer to use the Web Services. Thereafter, Subscription Fees for Customer's use of the Web Services, shall be (i) as described and/or as selected by You via the Site in connection with purchase to use the Web Services or (ii) negotiated between You and Provider by creating an addendum to this Agreement. Unless otherwise negotiated between You and Provider in an addendum to this agreement, all Subscription Fees are due at the beginning of each subscription term as specified in the Subscription Plan and Provider will charge the method of payment You provide via the Site in the amount of the Subscription Fees in connection with the Subscription Plan that You select. Subscription Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, "Taxes"). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Provider's net income. Upon termination of this Agreement by Customer, any unused prepaid Subscription Fees will not be refunded to Customer.

Refund Policy

Refunds will only be issued in the event of a billing error made by Provider.

WARRANTIES, INDENMITY, AND LIMITATION OF LIABILITY

Warranty Disclaimers. OTHER THAN SPECIFICALLY SET FORTH HEREIN, (i) THE WEB SERVICES AND SITE, ARE DELIVERED TO CUSTOMER ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION PROVIDED, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, OR PERFORMANCE, (ii) PROVIDER MAKES NO WARRANTY THAT THE SITE WILL MEET CUSTOMER'S SPECIFIC OBJECTIVES OR NEEDS; (iii) PROVIDER MAKES NO WARRANTY THAT THE WEB SERVICES OR SITE WILL BE FREE FROM ERRORS OR BUGS; and (iv) PROVIDER MAKES NO WARRANTY THAT THERE WILL BE UNINTERRUPTED OPERATION OF THE WEB SERVICES OR SITE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROVIDER OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

Limitation of Liability

UNLESS OTHERWISE PROVIDED HEREIN, IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER'S ACCESS TO OR USE OF THE WEB SERVICES EXCEED THREE (3) MONTHS PRORATED SUBSCRIPTION FEES, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. PROVIDER WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY DAMAGES RESULTING FROM ANY INTERRUPTION OR DISRUPTION IN COMMUNICATIONS OR SERVICES, UNAVAILABILITY OR INOPERABILITY OF SERVICES, TECHNICAL MALFUNCTION, LOST DATA, OR LOST PROFITS, EVEN IF PROVIDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILTY OF OR COULD HAVE REASONABLY PREVENTED SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Miscellaneous Provisions

Excusable Delays. Any delay in performance of any provision of this Agreement caused by conditions beyond the reasonable control of either party will not constitute a breach of this Agreement, provided that the delaying party has taken reasonable measures to notify the affected party of the delay in writing and uses reasonable efforts to perform in accordance with this Agreement notwithstanding such conditions. The delayed party's time for performance will be deemed extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a party's reasonable control include, but are not limited to, natural disasters, acts of government, acts of terrorism, power failures, major network failures, fires, riots, and acts of war (collectively, "Excusable Delays").

Compliance with Laws and Policies. The parties hereby agree to abide by and comply with all applicable local, state, national, and international laws and regulations (including applicable laws that pertain to the transmission of technical data, privacy, the encryption of software, the export of technology, the transmission of obscenity, or the permissible uses of intellectual property).

Controlling Law. The parties agree the laws of the State of Texas, excluding conflict of laws provisions, will govern this Agreement and all matters arising out of or related to this Agreement. The parties submit to the jurisdiction of the courts of the State of Texas. The parties expressly agree to venue in the state and federal courts located in Austin, Texas and waive any objection based on personal jurisdiction.

Entire Agreement and Severability. This Agreement, including the Subscription Plan and Support Plan, as amended from time to time according to its terms, shall constitute the entire agreement between Customer and the Provider respecting the Site, the Web Services, the Support, the Data, and the Third Party Data described herein, and shall supersede all prior agreements, arrangements, representations or promises, whether oral or written, as to its subject matter. This Agreement may be amended only in a written agreement that is duly executed by authorized representatives of the parties.

Force Majeure. The Provider and their respective affiliates shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, fires, other catastrophes, power or telecommunications failure or any other cause beyond its reasonable control.

Waiver. No waiver by either party of any default by the other in the performance of any provisions of this Agreement shall operate as a waiver of any continuing or future default, whether of a like or different character.

Assignment. Neither party may assign this Agreement without prior written consent unless in connection with a merger or acquisition of either party.

Severability. If any provision of this Agreement (or any portion thereof) shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.

Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.

No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

Notice. The parties may give notice to each other via email, fax or certified mail. Notices sent to Provider should be directed to support@ghostmemo.com. Notices sent to Customer will be sent to Customer at the email address provided during registration to use the Web Services.