Your Launch Documents
Terms of Service
Last Updated: July 11, 2016
"WHAT THIS MEANS"
You signify your consent to these terms by accessing or using any of our services, You may use our services only if you fully consent to all of our terms. If you do not consent to these terms you may not use our services.
The Terms of Service is a binding and enforceable legal contract between DarkMatter and you, so please read it carefully.
We provide Users with access to certain Licensed Content (as defined below) to help our customers create and manage websites (“User Website(s)”) by providing general and personalized content, website hosting services, communication tools and forums, mobile applications, and e-commerce tools and services (collectively, the “Services”) directly and through the Website. This Agreement explains Our obligations to you, and your obligations to Us. This Agreement is the entire Agreement between you and Us.
Plain language summaries are provided only for your convenience and are not legally binding. Please read this Terms of Service for a complete explanation of your rights and obligations in using our Services. By using DarkMatter, you are agreeing to these terms.
1. USER ACCOUNT
You are responsible for providing accurate and complete information and keeping that information up to date.
You are responsible for the security of your user account access information. If you share your user account with someone else, you are responsible for any actions they may take.
If your account was given to you by a web designer that has a designer account with us, that web designer will have administrative access to your website.
The owner of the website is the person or business who is making payment on the account. If you are the owner of the website you can choose to remove designer account access.
We will determine the ownership of all user accounts and websites if necessary.
In order to access and use certain sections and features of the Services, you must first register and create an account with DarkMatter (“User Account”).
You agree to fully and accurately provide complete information requested by us when setting up your User Account and using the Services, and to regularly update such information. Your failure to do so may result in the cancellation of your account and loss of Services.
You agree to provide your own (or your company’s) contact and billing details, including your valid email address, as we may use it to identify and determine the actual and true owner of the User Account, User Website(s) and User Content (as defined below) submitted to Us. You agree to not provide access to your User Account to anyone who is not your employee and to ensure all individuals permitted to use the Services via your User Account are aware of and have agreed in writing to comply with these Terms of Service.
The Services also allow for User Accounts that allow the User the ability to design and manage multiple Websites which may then be assigned to another User (“Designer Account”). If a User Website was created under a Designer Account, the Designer Account will have full administrative access to the User Website created by the User owning the Designer Account.
If anyone other than you accesses your User Account or any of your User Websites’ settings, they may perform any actions available to you, make changes to your User Website(s) and User Account, and accept any legal terms available therein, make various representations and warranties and more – and all such activities will be deemed to have occurred on your behalf and in your name. You will be solely and fully responsible for all activities that occur under your User Account or User Websites (including for any representations, warranties and undertakings made therein), whether or not specifically authorized by you, and for any damages, expenses or losses that may result from such activities. DarkMatter may access your User Account at anytime to provide support or content updates.
In the event of multiple User Accounts having access to a User Website(s) and User Content the User Account that is set up for billing for the Services will be the owner of the User Website(s) and User Content (as defined below).
Notwithstanding the foregoing, we reserve the right to determine and grant ownership to a User Account, in our sole discretion, based on our reasonable judgment, whether or not an independent investigation has been conducted by us. However, if we cannot make such determination (as we may deem in our sole discretion), we reserve the right to avoid doing so, without liability to you or to any other party.
2. YOUR OBLIGATIONS
To use our services, you must abide by certain obligations and conditions.
You acknowledge and agree that your failure to abide by any of the obligations contained in this section or any misrepresentation made by you herein may result in the immediate termination of your User Account and any Services provided to you, with or without further notice to you, and without any refund of amounts paid on account of any such Services.
2.1 Representations and Warranties
You must be at least eighteen (18) years old and use our services in a permitted location.
You represent, warrant and agree as follows:
a. you are at least eighteen (18) years of age, or of the legal age of majority in your jurisdiction, and possess the legal authority, right and freedom to enter into these Terms of Service and to form a binding agreement, for yourself or on behalf of the person or entity committed by you to these Terms of Service;
b. you are not a resident of (or will use the Services in) a country that the U.S. government has embargoed for use of the Services, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations;
c. your country of residence and your company’s country of incorporation is the same as the country specified in the contact and billing address you provide us;
d. you understand that DarkMatter does not provide any legal advice or any recommendation with respect to any laws or requirements applicable to your use or any of your End Users, or your compliance therewith;
e. you will ensure the email address provided in your account registration is valid at all times and will keep your contact information accurate and up-to-date;
2.2 User Content
You must own, or have a license for, all the content that you use to create your website. You cannot use any content on your website is illegal and violates any laws.
You are legally responsible for all information, data, text, images, fonts, logos, designs, animations, software, compositions, artworks, interfaces, text, literary works, sound, photographs, graphics, video, messages or other materials (“Content”) uploaded, posted or stored in connection with your use of the Services (“User Content”). DarkMatter is not responsible for your User Content. You hereby grant DarkMatter, and its partners, subsidiaries and third-party service providers, a worldwide, royalty-free, non-exclusive license to host and use the User Content in order to provide you with the Services and hereby represent and warrant that you have all the rights necessary to grant us such license. In addition, you grant DarkMatter a worldwide, royalty-free, non-exclusive license to display your User Content and Websites for inclusion in portfolios, samples, self-promotional materials, advertisements, design contests, investor materials, editorial use, or for display on the Website in any format whatsoever. You are responsible for any User Content or Content that may be lost or unrecoverable through your use of the Services.
You represent, warrant and agree as follows:
a. you own all rights in and to any User Content, or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such User Content;
b. the User Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to possess, post, transmit or display in the United States or any country in which you or your User Website’s visitors and users (“End Users”) reside, or for DarkMatter or your End Users to use or possess in connection with the Services;
c. you have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and image or likeness of any person, entity or property which is part of the User Content, and you will adhere to all laws applicable thereto;
2.3 User Responsibilities
You are responsible for complying with all applicable laws or agreements that would affect your use of our services. You are responsible for saving backup copies of any content that is contained in the website or that you obtain while using our services. We love what you create with DarkMatter and we want to show it off. You agree to let us use your website for promotional and marketing services.
You further agree:
a. to fully comply with all applicable laws and any other contractual terms which govern your use of the Services (and any related interaction or transaction), including those specific laws applicable to you or your End Users;
b. to be solely responsible and liable with respect to any of the uses of the Services which occur under your User Account and User Website(s), and for any of your User Content (including for any consequences of using or publishing such User Content on or with respect to the Services);
c. to regularly and independently save and backup any of your User Content and the information that is being processed by you regarding your User Website, including with respect to End Users, User Products, and any applications or Third Party Services used by you;
d. to receive from time to time promotional messages and materials from DarkMatter or its partners, by mail, email or any other contact form you may provide us with (including your phone number for calls or text messages);
e. to allow DarkMatter to use in perpetuity, worldwide and free of charge, any version of your User Website (or any part thereof) for any of DarkMatter’s marketing and promotional activities, online or offline, and modify it as reasonably required for such purposes, and you waive any claims against DarkMatter or anyone on its behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that you may have in or to your User Website with respect to such limited permitted uses;
f. that the means, manner, and method for performing the Services, including those regarding the hosting, transmission, publication or display of any User Websites or Content (including the inclusion and presentation of any advertisements or other commercial content with respect thereto) shall be determined at DarkMatter’s sole discretion.
2.4 User Restrictions
In order to use the services, there are some things you cannot do.
You cannot copy or reverse engineer our Services or those of our partners. We worked hard on this, so don't steal it.
You cannot post any content that would be offensive, harmful, threatening, obscene or otherwise harm another person. You cannot use our services for any illegal activities. We decide what is offensive, harmful, threatening or obscene. No porn, sorry.
You cannot do anything that would disable the services or cause them to operate in a way that they were not intended to do.
You agree not to:
a. copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the Website, the Services (or any part thereof), any Content or software offered by DarkMatter or Third Party Services for use and display within User Websites (“Licensed Content”) or any part thereof in any way, or publicly display, perform, transmit or distribute any of the foregoing without DarkMatter’s prior written and specific consent or as expressly permitted under these Terms of Service;
b. submit, transmit, provide links to or display any Content, User Content or use Licensed Content in a way, which may be deemed as pornographic, sexually explicit, defamatory, slanderous, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of DarkMatter or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval;
c. use the Services for any unlawful purposes or to conduct any unlawful activity, including, but not limited to, fraud, embezzlement, money laundering or insider trading;
d. publish or make any use of the Services or Licensed Content on any website, media, network or system other than those provided by DarkMatter, or frame, “deep link”, “page scrape”, mirror or create a browser or border environment around any of the Services, Licensed Content or User Website (or any parts thereof), except as expressly permitted by DarkMatter, in advance and in writing;
e. attempt to or actually access the Services by any means other than through the interfaces provided by DarkMatter;
f. use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Services (or its data), or in any way reproduce or circumvent the navigational structure or presentation of any of the Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Services;
g. act in a manner which might be perceived as damaging to DarkMatter’s reputation and goodwill or which may bring DarkMatter into disrepute or harm;
h. purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use DarkMatter or DarkMatter's Intellectual Property or any variations and misspellings thereof;
i. impersonate any person or entity or provide false information on the Services or User Website (directly or indirectly), or otherwise perform any manipulation in order to disguise your identity or the origin of any message or transmittal you send to DarkMatter or any End Users;
j. falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that DarkMatter or any third party endorses you, your User Website, your business, your User Products, or any statement you make;
k. reverse look-up, trace, or seek to trace another User of Services, or otherwise interfere with or violate any other User’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the Services or User Website without their express and informed consent;
l. disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Services, User Website, the account of another User(s), or any other systems or networks connected to the Services, by hacking, password mining, or other illegitimate or prohibited means;
m. attempt to or actually override any security component included in or underlying the Services;
n. probe, scan, or test the vulnerability of the Services or any network connected to the Services;
o. upload to the Services or User Website, or otherwise use them to design, develop, distribute or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
p. take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or DarkMatter’s systems or networks connected to the Services, or otherwise interfere with or disrupt the operation of any of the Services, the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
q. use any of the Services or User Website in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising;
r. sell, license, or exploit for any commercial purposes any use of or access to the Services or Licensed Content, except as expressly permitted by the Terms of Service;
s. remove or alter any copyright notices, watermarks, restrictions and signs indicating proprietary rights of any of our licensors, including copyright mark [©], Creative Commons [(cc)] indicators, or trademarks [® or ™] contained in or accompanying the Services or Third Party Services; or
t. violate, attempt to violate, or otherwise fail to comply with any of the Terms of Service or any laws or requirements applicable to your use of the Services.
3. YOUR CONTENT AND INTELLECTUAL PROPERTY
You will own all of the content you add to your website, but you grant us a license to use the content to show off your content if we use your website for promotional or marketing purposes.
You shall own all intellectual property rights in your User Content, including any Content by you using the Service. You hereby grant DarkMatter a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable right and license to use your User Content (in whole or in part) worldwide in order to provide you with the DarkMatter Services, and as further specified in Section 2.3(e) above.
4. OUR CONTENT AND INTELLECTUAL PROPERTY
4.1 What We Own
We own all of the intellectual property that is a part of our website and the services, including our brand names, software code and images.
All rights, title and interest in and to the Services, Content, Licensed Content or material available on the Website and all material and Services provided by or through DarkMatter, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners, including any and all materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law including, but not limited to, any artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, the “look and feel” of the Services, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers as well as all derivative works thereof, whether or not registered or capable of being registered (collectively, “Intellectual Property”), and any derivations thereof, are owned by or licensed to DarkMatter. All DarkMatter trademarks and service marks, logos, slogans and taglines are the property of DarkMatter. All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners.
4.2 Your Right to Use Our Intellectual Property
You can use our intellectual property for the purpose of creating your website and selling your products via your website. If you want to use our intellectual property for any other reason, you must get our written permission. You do not have the right to let anyone else use our intellectual property.
Subject to these Terms of Service, DarkMatter hereby grants you, a limited, non-exclusive, non-transferable, non-sublicensable, fully revocable, license to use the Website, Services, Intellectual Property and Licensed Content, via your User Account for the purpose of generating and displaying your User Website to End Users and offering your User Products and services therein, only as expressly permitted under these Terms of Service.
The Terms of Service do not convey any right or interest in or to DarkMatter’s Intellectual Property (or any part thereof), except only for the limited license expressly granted herein. Nothing in these Terms of Service constitutes an assignment or waiver of DarkMatter’s Intellectual Property rights under any law. Except as provided herein, nothing should be construed as granting any license or right to use any Intellectual Property displayed on the Website without Our express written permission, or the express written permission of such third-party that may own the Intellectual Property.
You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Intellectual Property, create derivative works based on or in any manner commercially exploit the Intellectual Property, in whole or in part, other than as expressly permitted in this Agreement. Any use of the Intellectual Property for any purpose other than as specifically permitted herein or without Our prior consent or the prior written consent of Our licensors, as applicable, is expressly prohibited. We reserve all rights not expressly granted in these Terms of Service.
4.3 Comments and Feedback
Any comments or feedback you send us is not private or confidential. We can display or use your comments or feedback for any purpose.
Any questions, comments, suggestions, ideas, feedback, or other information provided by you to Us (“Comments”) are not confidential and you hereby grant Us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as We deem appropriate, for any and all commercial and non-commercial purposes, in Our sole discretion. By providing such Comments to Us, you (1) represent and warrant that such Comments are accurate, complete, and do not infringe on any third party rights; (2) irrevocably assign to DarkMatter any right, title and interest you may have in such Comments, (3) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Comments.
6. SERVICE FEES
We offer monthly or yearly service plans at various levels. You can choose to upgrade or downgrade your plan. If you downgrade your account, you will receive a credit towards your next bill. We do not give cash refunds.
Your use of the Services is subject to your selection of a service contract agreement with DarkMatter, and payment of particular fees, as determined by DarkMatter in its sole discretion (“Fees”). You may agree to a one (1) month or twelve (12) month contract period which will begin upon your selection of a service contract agreement and payment of all applicable fees (“Term”).
You may choose to upgrade or downgrade your service agreement to any other contract agreement that DarkMatter is currently offering for sale at any time during your Term. In the event of a contract downgrade, a credit will be issued to your account for the difference in the cost of the two contracts over the remainder of your original Term. This credit can be applied to future Fees for Services with DarkMatter, and does not, in any way, entitle you to a cash refund.
At the end of your contract term (monthly or yearly) we will automatically renew your contract term for the same period as the previous contract (monthly or yearly). If you do not want your contract to be automatically renewed, you must terminate your account at least five days before the end of the contract term.
If your contract does not automatically renew because of your failure to keep your payment information up to date, we are not responsible for any losses you suffer.
At the end of the contract term, your contract will automatically renew for an additional contract Term until explicitly terminated by you. The Term for such automatic renewal shall be the same as the original Term for such Service and shall be automatically charged to the payment method you have on file with DarkMatter.
Termination must be issued as detailed in Section 7.2. Any termination issued must be done at least five (5) day prior to the end of the contract Term to allow for adequate processing time.
You are, and shall be, solely responsible to verify and ensure the successful renewal of the Services. You shall be solely responsible with respect to any discontinuation of any Services previously purchased by you, including due to a cancellation, failure to charge the applicable recurring Fees, or due to any Services not being automatically renewed. You acknowledge and agree that you shall not have any claims against DarkMatter in relation to the discontinuation of any Services or Third Party Services, for whatever reason.
6.3 Trial Period
If you participate in our free trail you must decide to launch your website within the trial period or purchase a software-as-a-service package. If you do not make a purchase you will not be able to retain your content uploaded during the free trial.
If you registered for a trial use of the Services ("Trial Period"), you must decide to purchase the Services within the Trial Period in order to retain any User Content or User Websites that you have posted, uploaded or created during the Trial Period. If you do not purchase the Services by the end of the Trial Period, your Content will no longer be available to you.
6.4 Storage of Information
You agree that we, or our third-party vendors, can store your payment information for the purposes of billing you for your use of the services. If your credit card expires and you don’t update it, your website will be shut off and your account may be terminated.
If you purchase any Services that We offer for a Fee, you agree that DarkMatter, or our third party service providers, may store your payment card information. You expressly agree that We are authorized to charge you (i) a monthly Fee for any applicable Services billed on a monthly basis, (ii) any other Fees for Services you may purchase, and (iii) any applicable taxes in connection with your use of the Services to the payment card you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorize Us to continue billing you and you agree to remain responsible for any uncollected Fees
You are responsible for the payment of all taxes related to your use of the services. If you sell things through your website you are responsible to calculate and pay all necessary taxes on those sales.
To the extent permitted by law (and unless specified otherwise by DarkMatter in writing), all Fees are exclusive of all taxes (including value added tax, sales tax, goods and services tax, etc.), levies or duties imposed by taxing authorities (“Taxes”), and you shall be responsible for payment of all applicable Taxes relating to your use of the Services, or to any payments or purchases made by you. If DarkMatter is obligated to collect or pay Taxes for the Fees payable by you, and whether or not such Taxes were added and collected from you for previous transactions, such Taxes may be added to the payment of any outstanding Fees and will be reflected in the receipt for such transaction.
You take full responsibility for all taxes and fees of any nature associated with Services, including any sales tax related to the purchase or sale of User Products. When purchasing or selling User Products, it is your responsibility to determine whether or not sales taxes apply to a transaction and to collect, report and remit the correct amounts to the appropriate authority. Any tools provided in connection with the Services indicating estimated taxes due are for illustration purposes only. You take full responsibility for all taxes and fees of any nature associated with the Services, including any sales tax related to the purchase or sale of User Products.
If you cancel, reject or chargeback your payments for the services we will terminate your account and you may loose the content of your website. You will also be responsible for any fees we incur due to your chargeback or payment cancelation.
If, at any time, you contact your bank or credit card company and decline, chargeback or otherwise reject the charge of any payable Fees (“Chargeback”), this act will be considered a breach of your payment obligations hereunder, and your use of the Services may be automatically terminated.
In the event a Chargeback is performed, your User Account may be blocked without the option to re-purchase or re-use it, and any data contained in such User Account, including any domains, applications and Third Party Services may be subject to cancellation and Content Loss (as defined in Section 7.3 below).
Your use of the Services will not resume until you re-subscribe for any such Services, and pay any applicable Fees in full, including any fees and expenses incurred by DarkMatter and any Third Party Services for each Chargeback received (including Fees for Services provided prior to the Chargeback, handling and processing charges and fees incurred by the payment processor).
If you have any questions or concerns regarding a payment made to DarkMatter, we encourage you to first contact Us before filing a Chargeback or reversal of payment, in order to prevent the Services from being canceled and your User Account being blocked, and to avoid the filing of an unwarranted or erroneous Chargeback, which may result in your being liable for applicable Fees, in addition to re-payment of all the Fees applicable to the Services purchased (and charged-back) by you.
We reserve our right to dispute any Chargeback received, including by providing the relevant credit card company or financial institution with any information and documentation proving that the User responsible for such Chargeback did in fact authorize the transaction and make use of the services rendered thereafter.
7.1 Termination by Us
If you do not abide by these terms or fail to make payment we can terminate your account.
The Services may be terminated by Us, without cause, at any time. We may terminate Services at any time, without penalty and without notice, if you fail to comply with any of the terms of this Terms of Service or the intellectual property protections provided for herein.
Failure to pay any Fees due hereunder shall entitle Us to suspend or terminate your User Account and User Website, in Our sole discretion.
7.2 Termination by You
You can terminate the services at any time. If we receive a termination notice, your account will terminate at the end of the current contract period. We will need five days to process your request, so please plan ahead.
You may request to terminate the Services at any time, without cause, by providing email notice of such cancellation to support@DarkMatterplatform.com at least five (5) days prior to the expiration of the then current Term. The effective date for termination of the Services shall be at the end of the then current Term.
7.3 Loss of Data and Content.
If your account gets terminated, you may loose the contents, data and/or layout of your website. You should keep backup copies of all content you add to your website.
If your User Account or the Services are canceled, suspended or terminated (whether at your request or at DarkMatter’s discretion), it may cause or result in the loss of certain content, features, or capacity of your User Account or User Website, including, but not limited to, User Content, End User data or other data retained therein (“Content Loss”). You are solely responsible for saving a backup of your User Account, User Content, and End User data. DarkMatter shall not be liable in any way for any such Content Loss.
8. SALES THROUGH USER WEBSITE(S)
You are responsible for any and all sales of goods or services through your website. We are not involved with these activities, and will not take any responsibility or blame for such sales activities.
You agree not to sell any illegal or infringing products, weapons, offensive or explicit products, or products that are harmful to others. If you do sell any of these types of products we may remove the items, suspend your account or terminate your account.
The Services include certain features which enable you to sell goods, content, media and services through your User Website (“User Products”, and collectively “E-Commerce”).
You are solely responsible for your User Products and E-Commerce related activities, and any promotions and related Content contained or referred to in your User Website, and compliance with any laws applicable thereto. We are merely providing the platform for you to manage your online E-Commerce activities and for buyers and sellers to negotiate and complete transactions for these User Products. We are not involved in your relationship and/or any transaction with any actual or potential buyer of your User Products. When someone purchases your User Products, such transaction’s payments will be processed through such third party payment service providers with which you decided to register and set up an account (“Payment Provider(s)”), in accordance with such E-commerce Service Provider’s terms of service and other applicable policies. We are neither a party to nor are responsible in any way for your relationship with any such Payment Providers, or for the actions of any of these Payment Providers.
In addition to the other rules and requirements described in this Agreement, by using any of Our E-Commerce Service or selling any User Products through your User Website(s), you acknowledge, warrant and agree that:
a. you will not offer or sell illegal or potentially illegal User Products, including those that are counterfeited, stolen or fraudulent. User Products sold using the Services comply with all applicable laws, including User Products sold to individuals outside of the U.S. You will not offer or sell any items identified as “not for distribution within the United States” using the Services;
b. you will not offer or sell User Products that infringe or have the potential to infringe the intellectual property rights or proprietary rights of another;
c. you will not offer or sell any User Products that We, in our discretion, determine are inappropriate, offensive, pornographic, sexually explicit or violent;
d. you will not offer or sell any User Products that are manufactured as, or primarily intended to be used as, weapons, including firearms, restricted devices or ammunition. We reserve the right to determine, in our sole discretion, whether User Products constitutes “weapons” for purposes of this Agreement;
e. you will not offer or sell any User Products that infringe upon or have the potential to infringe upon an individual’s privacy or that may be libelous, slanderous or otherwise defamatory;
f. you will not use images or names of any third party (including notable personalities or celebrities) when offering or selling User Products without first obtaining that third party’s permission;
g. you shall be solely and fully responsible for all Taxes and fees of any nature associated with your E-Commerce activities, including any Taxes related to the purchase or sale of the User Products, and to collect, report and remit the correct amounts to the appropriate authorities and/or inform your End Users of such and provide them with a duly issued invoice as required by law;
h. you shall be responsible for and bear all costs of procuring and delivering your User Products, and for providing them in a safe and professional manner, consistent with industry standards; and
i. you are solely responsible for any and all statements and promises you make and for all assistance, warranty and support regarding the User Products, and shall provide true contact information in your User Website for any questions, complaints or claims.
Without limiting anything else in this Agreement, we may immediately suspend, disable access to, or remove your User Website and/or any User Products determined, in Our sole discretion, to be in violation of this Agreement, without any liability to you or to any End Users, including for any Content Loss resulting therefrom.
9. THIRD-PARTY SERVICES
We do not control our third-party service providers or their websites. We are not responsible for anything that happens if you use their services or websites.
The Website may contain links to other web sites owned by third parties ("Third Party Sites"). Please note that when you click on any of these links, you are entering another website for which we have no responsibility or control. You may also have the ability through the Website to login to accounts that you have for services provided by third parties (“Third Party Services”) or to link accounts for Third Party Services to your User Account or User Website. DarkMatter is not responsible for any activity occurring within Third Party Services, even if logged in through or linked to a User Account.
You agree that We shall not be responsible for any loss or damage of any sort incurred as a result of your use of any Third Party Sites and/or Third Party Services, whether or not you were linked to or directed to a Third Party Website or Third Party Services through the Website. You acknowledge that Third Party Sites and Third Party Services may be subject to the applicable third party provider’s terms of service, and you are solely responsible for reviewing and complying with any such terms of service. Any and all use of Third Party Services shall be done solely at your own risk and responsibility, and may be subject to such legal terms which govern such Third Party Services, which you are encouraged to review before engaging with them. In no event shall any reference on the Website to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party. DarkMatter will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between you and any Third party Services.
DarkMatter may, at any time and at its sole discretion, suspend, disable access to or remove from your User Account, User Website(s) and/or the DarkMatter Services, any Third Party Services without any liability to you or to any End Users.
10. COPYRIGHT COMPLAINT POLICY
We do not control our third-party service providers or their websites. We are not responsible for anything that happens if you use their services or websites.
11. DISCLAIMER OF WARRANTY
We make no warranties regarding our services, including their quality, reliability, security, compatibility and conditions.
We are not to be considered a “publisher” of your content, we do not endorse your content, and will not be liable for any content used by you or anyone else.
We may monitor or edit your website or content as we deem necessary.
The website, services and content are provided “as is,” “as available,” “with all faults” and without any warranty of any kind, express or implied. To the fullest extent permissible under applicable law, DarkMatter and its licensors disclaim all warranties of any kind, either express or implied, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Neither DarkMatter nor its licensors warrant that access to the website, the content or the services available on or through the website will be uninterrupted or error-free, or that defects, if any, will be corrected; nor does DarkMatter or its licensors make any representations about the accuracy, reliability, currency, quality, completeness, compatibility, usefulness, performance, security, legality or suitability of the services, the content or the website. In addition, neither DarkMatter nor its licensors warrant nor represent that the services, website or content are suitable for or compatible with any of your (or your end users') contemplated activities, devices, operating systems, browsers, software or tools, or that they will remain as such at any time, or that their operation will be free of any viruses, bugs or other harmful components or program limitations. You expressly agree that your use of the website and your reliance upon the services or the content is at your sole risk. In addition, DarkMatter is not responsible, and makes no representations or warranties for the delivery of any messages (such as emails, posting of answers or transmission of any other user generated content) sent through the website to anyone.
In addition, you acknowledge and agree that any data, information, content or content contained in or made available in connection with the services is not intended as a substitute for, the knowledge, expertise, skill and judgment tax, legal or other professionals. The services do not provide tax or legal advice. You are responsible for obtaining such advice.
Further, DarkMatter and its licensors make no representation or warranties that the services or the content or the website are appropriate or available for use in all geographic locations. If you use the website, the services or the content outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Neither DarkMatter nor any third party providers, partners or affiliates warrant that the website, its servers the content or the services or any e-mail sent from the website or any third party providers, partners or affiliates are free of viruses or other harmful components.
This agreement applies solely to the website. As part of the services provided to other DarkMatter users, we host websites for certain third parties (“third party websites”). Third party sites include content generated by third parties and are not under the management and control of DarkMatter. DarkMatter is not responsible for such third party sites, including without limitation, the accuracy, sufficiency, correctness, reliability, veracity, completeness or timeliness thereof, any link contained therein, or any changes or updates thereto, or any goods or services sold thereon. Your access or use of any third party website is governed by the terms applicable to such third party website. The hosting of any third party website by DarkMatter does not imply an endorsement thereof by DarkMatter, or of the provider of such content or services, of any third party website.
Notwithstanding anything to the contrary in the foregoing, in no circumstances may DarkMatter be considered a “publisher” of any user content or user website. DarkMatter does not in any way endorse any user content or user website, and assumes no liability for any user content uploaded, posted, published and/or made available by any user or any other party on or through the DarkMatter services, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that you or others may suffer or incur as a result of or in connection with publishing, accessing or relying on any user content. Furthermore, DarkMatter shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, pornography, incitement or any other unlawful or infringing user content or user website you or any other party may encounter.
DarkMatter may, at its sole discretion, without any obligation to do so, screen, monitor or edit any user website or user content, at any time and for any reason, with or without notice.
12. LIMITATION OF LIABILITY
Subject to applicable law, we will not be liable for any damages you incur by using our services.
We are not liable to you or any other person for damages of any kind, including without limitation any punitive, exemplary, consequential, incidental, indirect or special damages (including, without limitation, any personal injury, lost profits, business interruption, loss of programs or other data on your computer or otherwise) arising from or in connection with use of the website, the services, the content, your content, the user products or any third party user generated content available on or through the website, whether under a theory of breach of contract, negligence, strict liability, malpractice or otherwise, even if DarkMatter has been advised of the possibility of such damages. You hereby release DarkMatter and hold DarkMatter and its parents, subsidiaries, affiliates, licensors, and their officers, directors, trustees, affiliates, subcontractors, agents and employees, harmless from any and all claims, demands, and damages of every kind and nature (including, without limitation, actual, special, incidental and consequential), known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the use of the services, content, website, your content, commercial products or any third party user generated content available on or through the website. You hereby waive the provisions of any state or local law limiting or prohibiting a general release. You acknowledge and agree that these limitations of liability are agreed allocations of risk constituting in part the consideration for DarkMatter’s services to you, and such limitations will apply even if DarkMatter has been advised of the possibility of such liabilities.
13. EXCLUSIVE REMEDY
If there is any problem with the website, services or your content your only remedy will be to stop using the services, website and content.
In the event of any problem with the website, the services, or the content, you agree that your sole and exclusive remedy is to cease using the website, the services and the content. Under no circumstances shall DarkMatter, its affiliates, or licensors be liable in any way for your use of the website, the services, the content, your content, the user products or third party user generated content available on or through the website, including, but not limited to, any errors or omissions, any infringement of the intellectual property rights or other rights of third parties, or for any loss or damage of any kind incurred as a result of, or related to, the use of the website, the services, the content, your content, the commercial products or any third party user generated content available on or through the website.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
If we get sued or are placed in harms way by anything you did, you will be required to pay the associated costs and damages that we incur.
You agree to indemnify, hold harmless, and defend DarkMatter and its licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively "Indemnified Parties") from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys' fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account’s) use of the Services, the Website or the Content, (ii) your User Content, or (iii) any User Products you offer on or through the Website, your User Website or using our Services. This includes, but is not limited to, any breach or violation of this Terms of Service Agreement by you or anyone utilizing your account. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.
15. ADDITIONAL REMEDIES
We will have the ability to seek an injunction stopping you from any activity that violates these terms of service. We will also be able to recover our costs and attorney's fees that we incur in obtaining an injunction.
You acknowledge that a violation or attempted violation of any of this Agreement will cause irreparable damage to DarkMatter, the exact amount of which would be impossible to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that DarkMatter shall be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of these Terms of Service by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by DarkMatter in obtaining such an injunction, including, without limitation, reasonable attorney's fees. You agree that no bond or other security shall be required in connection with such injunction.
In no event shall you be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of DarkMatter, the exploitation of any advertising or other materials issued in connection therewith, or the exploitation of the Website or any content used or displayed through the Website.
16. AMENDMENTS, CHANGES AND UPDATES
We can amend these terms of service at any time, and the changes will be effective as soon as we make any changes. We will post a notice on our website if we make any changes.
We may change, suspend or terminate our services or certain features at any time. We may also change our prices as we deem necessary. We will provide you with email notice of such changes before they become effective. If you do not agree to pay an increased fee, we may cancel your account or offer you a modified version of the services.
We reserve the right, in our sole discretion, to modify or replace any part of this Agreement at any time, effective upon the date of the change. In the event of any such change, we will post a notice on the Website that we have changed this Agreement. If you have a DarkMatter account, we may, but are not required to, provide you with notice via the email address that we have on file for you that we have changed this Agreement.
DarkMatter may change, suspend or terminate any of the Services, or any features thereof, or prices applicable thereto, at any time and in any manner. Such changes may become effective upon notice to you, via the email address that we have on file for you, and in any event, not in a retroactive manner, except as required otherwise by law. If any such changes involve the payment of additional Fees, we will provide you with a notice, via the email address that we have on file for you, of such Fees prior to enabling such specific changes. If you fail or refuse to pay such Fees, we may, at our sole discretion, cancel your User Account , continue to support your then-current Services without enabling such changes, or provide you with alternative Services.
You and DarkMatter both understand that sometimes there are issues with email communication. We are not responsible if any email notice gets caught by your SPAM filter and you do not see it, if you have given us the wrong email address (or failed to update your address) or if there are other communications issues that prevent email from reaching you. Therefore, we encourage you to frequently visit this page periodically to monitor any changes. Your continued use of or access to the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
We may also, in the future, offer new services and/or features through the Website (including the release of new tools and resources). For the avoidance of doubt, such new features or services shall be subject to the terms and conditions of this Agreement.
17. GOVERNING LAW AND JURISDICTION
We are a Minnesota company. These terms of service are governed by Minnesota law. If there are any legal disputes related to this agreement, you agree that they will be held before a court in Minnesota.
The formation, interpretation and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of the state of Minnesota without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of the United States of America. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Minneapolis, Minnesota, and you hereby submit to the personal jurisdiction of such courts and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
We may contact you by email about important software updates or matters regarding your account. We are expecting you to read our emails to learn bout changes to your account and that your account stays up-to-date.
We may provide you with notices by email, sent to the email address you provided us. DarkMatter’s notice to you will be deemed received and effective within twelve (12) hours after it was sent, unless otherwise indicated in the notice.
20. RELATIONSHIP OF PARTIES
This Agreement, and your use of the Services, does not create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between DarkMatter and you.
We may assign our rights and obligations to other parties. You may only assign your rights and obligations with our prior written consent.
DarkMatter may freely assign its rights or interests hereunder, delegate the performance of its duties hereunder, or transfer ownership rights and title in the Services and Licensed Content to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights, interests, duties or obligations hereunder without the prior written consent of DarkMatter. Any attempted or actual assignment thereof without DarkMatter’s prior explicit and written consent will be null and void. In any event, an assignment or transfer pursuant to this Section 21 shall not in itself grant either DarkMatter or you the right to cancel any Services then in effect.
The various sections of these terms are independent from one another. If any one of them is found invalid, the remaining sections will remain in force.
If any provision of this Agreement is held invalid, prohibited, or unenforceable for any reason, this Agreement shall be ineffective only to the extent of such invalidity, prohibition, or unenforceability, and the remaining provisions shall continue to be given full force and effect.
If we do not enforce any portions of these terms it does not mean that we waive those rights. And we may enforce them at any time in the future.
DarkMatter's failure to insist upon strict enforcement of any provision(s) of this Agreement, or to exercise any power, right or option conferred herein, in any one or more instances, shall not considered a waiver.
24. ENTIRE AGREEMENT
25. USE IN LEGAL PROCEEDINGS
A printed or electronically delivered version of this Agreement shall in admissible in a court of law.
A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
26. HEADINGS, CAPTIONS AND EXPLANATIONS
Only the language in black text on white is legally binding. This blue box and larger text is merely for clarity.
All headings, captions or section titles contained herein, and any everyday language summaries at the the top, are provided only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provisions of this Agreement and do not legally bind you or Us in any way.