Dynamod Terms of Service
These Terms of Service ("TOS") constitute a binding legal contract. Once you sign up you will be bound to these terms. Please make sure you have read and understand them. The contract ("Agreement") is between Fluxure Advanced Motion Media, Inc. (our formal corporate name) ("we," "us," "Fluxure" or "Dynamod") and the user of our services ("you," "user" or "Customer") and covers our relationship and business dealings including the use of Dynamod's enhanced Portal services and any related products or services ("Service"). You can not sign up unless you are 18 years old or older.
We will host your website created by using one of our templates. The actual features provided may change from time to time. The features we provide will be listed on our site. We have the right to add and remove features. In return we expect you to pay your fees in a timely, manner and use the web site in an appropriate manner as set out in our Acceptable Use Policy ("AUP"). We also expect you to respect the intellectual property rights of others. We will not tolerate any copyright or trademark infringements by any customer using our services. WE HAVE THE RIGHT TO TERMINATE THE AGREEMENT AT ANYTIME FOR ANY REASON WITHOUT LIABILITY AND ARE ONLY RESPONSIBLE FOR REFUNDING TO YOU ANY PRORATE SHARE OF MONEY PAID TO US IN ADVANCE FOR THE SERVICE. Some of the reasons we may terminate or suspend Service are: (i) we reasonably believe that the Services are being used in violation of the Agreement; (ii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on our server(s) due to your use of the Service, (iv) your web site is accessed or manipulated by a third party without your consent, (v) you violate any third party's copyrights or trademark rights, (vi) there is another event for which we reasonably believe that the suspension or termination of Service is necessary to protect Dynamod or our other customers, or (vi) if required by law. We will attempt give you advance notice of a suspension under this paragraph unless we determine in our reasonable commercial judgment that a no notice is necessary to protect Dynamod or its other customers from harm.
Service is offered on a monthly basis for a term which begins on the date that Dynamod activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you have properly completed and confirmed the cancellation process accessed via the My Account page at www.dynamod.com. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus any applicable disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
3. Lawful Use Of Service
You agree to use the Service only for lawful purposes. You agree to abide by our AUP.
Please note that you are also responsible and liable to Dynamod if any third party who used your account, computer or password to gained access to your web site or account violates the terms of this agreement or causes harm to Dynamod. You agree to notify Dynamod immediately, in writing or by completing the "Contact Us" Form located at www.dynamod.com/contact_us.php, if you become aware at any time that your Service is being stolen or fraudulently used. When you write, you must provide your account information and a detailed description of the circumstances of the theft or fraudulent use of Service. You will be liable for all activity on your account until we receive written notice.
You agree not to use, or allow others to use, the Service and your web site for transmitting or receiving any communication or material of any kind when in Dynamod's sole judgment the transmission, receipt or possession of such communication or material (i) would constitute, or encourage conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) would in any manner infringe any copyright, trademark, patent, trade secret, or other proprietary right of any party. Dynamod reserves the right to terminate your service immediately and without advance notice if Dynamod, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at Dynamod's discretion be immediately charged to your credit card along with charges for any damages it incurs as a result of your improper use of the Service and/or violation of the AUP. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Dynamod against any and all liability for any such use. If Dynamod, in its sole discretion believes that you have violated the above restrictions, Dynamod may forward the objectionable material, as well as your communications with Dynamod and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
4. Dynamod's Copyright / Trademark / Unauthorized Usage Of Software
You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that we place on your web site or that appear on any software we provide for your use. You may not violate any copyright or trademark right of Dynamod.
The Service software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents and materials on Dynamod's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Dynamod are and shall remain the exclusive property of Dynamod and nothing in this Agreement shall grant you the right or license to use any of such marks.
IN ADDITION YOU SHALL NOT REVERSE COMPILE, DISASSEMBLE OR REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DERIVE THE SOURCE CODE.
5. Copyright Infringement Claims
If a third party makes a claim that you are infringing on their copyright and sends a proper DMCA take down letter (please review our Copyright Infringement Policy) we will take down your site and provide you with notice. If you send a proper Counter Notification and comply with the DMCA requirements we will put your site back up. If you believe the DMCA "Take Down" is wrong contact an attorney and provide a Counter Notification. What we will not do is get in the middle of the dispute, decide who is right or attempt to mediate a resolution. The DMCA can be found at, http://www.copyright.gov/title17/92chap5.html#512.
6. Changes To This Agreement
Dynamod may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the "Service Announcements" section of Dynamod's website (currently located at http://www.dynamod.com/terms_of_service.php ). Such changes will become binding on Customer, on the date posted to the Dynamod website and no further notice by Dynamod is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service.
7. Charges / Payments / Default / Taxes / Termination
You must give us a valid credit card number (Visa, MasterCard, Discover, American Express or any other issuer then-accepted by Dynamod) when the Service is activated. Dynamod reserves the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise Dynamod at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Dynamod decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, advanced feature charges, equipment purchases, disconnect fees. You also grant us the right to charge your account for any costs or expenses incurred by Dynamod as a result of your breach of this agreement, our copyright policy, our AUP or third party claims made against Dynamod as a result of your use of our Services.
If you have any billing disputes, you must notify Dynamod in writing within 7 days after receiving your credit card statement if you dispute any Dynamod charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
Customer Care Billing Department
Fluxure Advanced Motion Media, Inc.
1 Penn Plaza #6313
New York, NY 10119
Dynamod accepts payments only by credit card as set forth above. Your initial use of the Service authorizes Dynamod to charge the credit card account number on file with Dynamod, including any changed information given Dynamod if the card expires or is replaced, or if you substitute a different card, for Dynamod charges as set forth in Section 4.1. This authorization will remain valid until 30 days after Dynamod receives your written notice terminating Dynamod's authority to charge your credit card, whereupon Dynamod will charge you the disconnect fee and any other outstanding charges and terminate the Service. Dynamod may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Dynamod is declined or reversed, your credit card expires and you have not provided Dynamod with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you fully liable to Dynamod for all charges accrued before termination and for all costs incurred by Dynamod in collecting such amounts, such as (but not limited to) collection costs and attorney's fees.
Customers not subscribed to a monthly plan will be charged the then current disconnect fee per Portal upon termination of Service for any reason or for convenience by Customer. The disconnect fee becomes due and payable immediately upon termination and will billed directly to Customer's credit card. If Customer has multiple Portals, Customer will be charged a disconnect fee per Portal for each Portal disconnected.
Customer will be charged the then current reconnect fee per Portal for reactivation due to billing discrepancies that result in temporary account suspension and/or portal deactivation.
8. Liability Limitations
WE DO NOT PROMISE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY.
LIMITATION OF LIABILITY
Dynamod shall not be liable for any delay or failure to provide the Service, at any time or from time to time, or any interruption that is caused by any of the following:
1) act or omission of an underlying carrier, service provider, vendor or other third party;
2) equipment, network or facility failure;
3) equipment, network or facility upgrade or modification;
4) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
5) equipment, network or facility shortage;
6) equipment or facility relocation;
7) service, equipment, network or facility failure caused by the loss of power to Customer;
8) outage of Customer's ISP or broadband service provider;
9) act or omission of Customer or any person using the Service or Device provided to Customer; or
10) any other cause that is beyond Dynamod's control, including without limitation a failure of or defect in any device, the failure of an incoming or outgoing communication, the inability of communications to be connected or completed, actions of third parties, customers actions or the actions of any governmental authority.
We backup overall system data so in the event of a system failure we can restore the system back. We do not restore data deleted by the end user. We are not responsible for any data loss.
DYNAMOD SERVICES ARE PROVIDED "AS IS". DYNAMOD MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER.S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, DYNAMOD DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DATA OR INFORMATION. NEITHER DYNAMOD NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO DYNAMOD'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF DYNAMOD'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY DYNAMOD OR DYNAMOD'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
PLEASE NOTE: Dynamod's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to Dynamod's performance or nonperformance hereunder or (iii) any Dynamod act or omission in connection with the this agreement or the parties overall relationship hereof shall in no event exceed ten times the monthly service charges paid by Customer.
IN NO EVENT SHALL DYNAMOD, ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNIES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT DYNAMOD WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
This section shall survive termination of this Agreement.
9. Customer's Warranty And Indemnification
Customer warrants that they are over the age of 18 and that they have the right to enter into his agreement. That by entering into this agreement no third party right is being violated. That Customer in the use of the Services or the material found on the Customer's web site is in violation of any state, local, federal or foreign countries laws or regulations. That in the use of the Service they will not violate the rights of any third parties including but not limited to contract rights, right of privacy, right of publicity, copyright, trademark rights, trade secrets, trade dress rights, confidentiality or other obligations. That their use of the service will not constitute an unfair or improper trade practice nor violate the Lanham act.
Customer agrees to defend, indemnify, and hold harmless Dynamod, its officers, directors, employees, attorneys, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all suits, judgments, awards, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) incurred as a result of a breach, threatened or alleged breach of this Agreement by Customer, as a result of a breach of any warranty made by Customer or as result of any third parties claim resulting from Customers use of the Services and/or the content of their web sites or Customer actions. This section shall survive termination of this Agreement.
10. Governing Law / Resolution Of Disputes
The Agreement and the relationship between you and Dynamod shall be governed by the laws of the State of New York, U.S.A. without regard to its conflict of law provisions.
Any dispute or claim between Customer and Dynamod arising out of this Agreement or or relating to the Service provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in New York, New York and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration.
However, Dynamod may seek judicial injunctive or equitable relief in the event it feels it is necessary in order to protect its interests. Further, This clause shall not restrict Dynamod from bring any cross or counter claim in any litigation, nor shall it limit to Dynamod's right (at its option) to bring a claim in a court of competent jurisdiction against Customers for a violation of any of the terms of Section Four (4) above or for a breach of Customer's warranties. The parties designate New York, NY as the forum of resolution for all such disputes and grant the courts of competent jurisdiction (state and/or federal) therein personal jurisdiction over themselves for these purposes.
Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action Customer wishes to raise arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
11. Confidential Information
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
(i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Master Services Agreement,
(ii) to law enforcement or government agency if requested, or if either of us reasonably believes that the other's conduct may violate applicable criminal law;
(iii) as required by law; or
(iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
You agree that we may publicly disclose that we are providing services to you and may include your name and your website in promotional materials including press releases and on the Fluxure or Dynamod websites. Neither of us may publicly use the other party's logo or other trade or service mark without permission.
Customer may not assign the Agreement without Dynamod's prior written consent. Dynamod may assign the Agreement in whole or in part.
14. Force Majeure
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Entire Agreement
This Agreement and the rates for Services found on Dynamod's website constitute the entire agreement between you and Dynamod and govern your use of the Service, superseding any prior agreements between you and Dynamod and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon Dynamod unless and until posted in accordance with Section 3 hereof.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
16. Service Announcements
This Agreement was last updated on August 31, 2009