Terms of Service
1. Services Provided.
a. Obligations. Ninth Degree, Inc. ("Ninth Degree"), a California Corporation, shall provide an Xpress Web Site ("Web Site") for use on the Internet in accordance with the descriptions of service on the 9dx.com web site. The service ("Service") provided by Ninth Degree includes setup and internet accessibility of the Web Site, as well as email service. By checking the box and making payment for the Web Site, the customer ("Client") indicates acceptance of the terms and conditions delineated below ("Agreement"). The obligation of Ninth Degree to perform in accordance with the terms and conditions of this Agreement is expressly conditioned upon the performance of Client in accordance with the terms hereof.
b. Service Interruptions. Ninth Degree does not represent or warrant to Client that Client will receive continual and uninterrupted service. In no event shall Ninth Degree be liable to Client for any damages resulting from or related to any failure or delay of Ninth Degree to provide service hereunder, including delays or failures related to strikes, riots, fire, inclement weather, acts of God, theft, vandalism, or other cause or circumstance beyond Ninth Degree's reasonable control, as defined by standard practices in the industry. Such failure or delay shall not constitute a default under this Agreement with Ninth Degree.
c. After-hours Service Fees. Ninth Degree provides an after-hours emergency number to provide notification to our technical team in cases where service is interrupted. Should the Client use this number for a reason not related to a service interruption for which Ninth Degree is directly responsible, including problems which are caused by the Client's own ISP or which have been initiated through some action of the Client, such as a DNS change or a change to the domain registration, or because service was suspended for lack of payment, the Client agrees to pay a $100 service fee for each after-hours call.
d. Right to terminate or refuse. Ninth Degree reserves the right at its sole discretion to refuse or cancel service at any time. Violation of any of Ninth Degree’s terms and conditions could result in a warning, suspension, or possible account termination. Accounts terminated due to policy violations will not be refunded. Client may terminate Services with 30 days notice to Ninth Degree by regular mail or fax. Client agrees that Ninth Degree is under no obligation to refund any payments made up to and through the end of the billing cycle concluding 30 days after notification of termination. Ninth Degree will issue no refund of setup fees after the point that development of the Client's site has begun or 30 days after the time of the sale.
e. Revision. Client agrees that Ninth Degree may revise the terms and conditions of this Agreement, revise its billing rates and account surcharges, and revise the services provided under this Agreement at any time. Any such revisions will be binding and effective immediately on posting the revised Agreement on the 9dx.com web site, or on notification to Client by e-mail or regular mail. Client agrees to review the Agreement periodically to be aware of any such revisions. If any revision to this Agreement is unacceptable to Client, Client may terminate service by providing Ninth Degree with written notice by email, regular mail or fax. Notice of termination will be effective on receipt by Ninth Degree, though Client is responsible for payments due until 30 days after termination. Client agrees that, by continuing use of Ninth Degree's Services following notice of any revision to the Agreement, Client accepts any such revisions and agrees to abide by same.
f. Competition. Client agrees that Ninth Degree may solicit customers and provide goods or services to customers who compete with Client. Client agrees that the Web Site developed for its use will make use of graphic and software elements that are reused in other sites developed by Ninth Degree.
g. Time Frame. Ninth Degree reserves the right to complete the Web Site in any time frame it determines, without respect to any promise or expectation made to the Client. Client is entitled to cancel their order and receive a full refund of their setup fees provided Ninth Degree has not begun the process of development, should the Client deem any delay unreasonable.
2. Intellectual Property Rights.
a. Software Components. Client acknowledges and agrees that Ninth Degree either owns or rightfully possesses various development tools, routines, subroutines and other programs, data and materials relating to database integration that Ninth Degree may use or include in the Web Site developed under this Agreement ("Software Components"). Ninth Degree retains all right, title and interest, including all copyright, patent rights and trade secret rights in the Software Components. Ninth Degree grants Client a nonexclusive, non-transferable license to use the Software Components and operate Web Site developed and delivered under this Agreement for as long as Ninth Degree extends service to the Client. Upon termination of Client's account with Ninth Degree, this non-exclusive, non-transferable license shall terminate without notice and Client shall discontinue forthwith any and all use of such works in Client's business, on Client's website or otherwise. Ninth Degree is under no obligation to provide Client with any data, content, source code, scripts, executables or HTML pages arising from Services provided by Ninth Degree.
b. Web Site Elements. Client acknowledges that Ninth Degree owns the designs used to develop the pages and graphics used in the Web Site ("Graphic Elements"). Ninth Degree owns all right, title and interest, including the copyright in the Graphic Elements. Ninth Degree may, at the Client's request, integrate the Client's logo or branding into the Web Site design. Aside from the original graphic representation of the client's logo, Ninth Degree retains ownership of all Graphic Elements used in the design of the Web Site. Aside from the operation of the Web Site, Client shall make no use of Graphic Elements without the written consent of Ninth Degree.
c. Content. All intellectual property rights, titles, and interests respecting the content added to the site by the Client belong to the Client.
d. Domain Name. All intellectual property rights, titles and interests respecting the domain name (if applicable) belong to the Client, if the Client registered the domain name. If the Client registered and owns the domain name, use of the domain name by Ninth Degree shall be restricted to the Web Site design and hosting services, except as otherwise designed by this Agreement. If Ninth Degree registered the domain name, title remains with Ninth Degree unless transfer of ownership is negotiated with the Client.
e. Credits. Ninth Degree shall have a license to picture the Web Site on the 9dx.com or ninthdegree.com web sites or within other Ninth Degree marketing materials, and may also include a hypertext link and/or screen reproductions leading directly, or within a frame, to the Web Site.
3. Content.
a. Lawful Use. Client agrees that Web Site may be used for lawful purposes only. Client agrees not to submit, publish, or display on the Web Site any defamatory, illegal, inaccurate, abusive, obscene, infringing, or threatening content. Client agrees not to submit, publish, or display any content in violation of any Federal, state, or local laws, ordinances, regulations, or orders. Client accepts sole responsible for any content made accessible on the Web Site while using Ninth Degree's servers and networks. Client agrees not to use the Web Site to assist any other person or entity to violate any Federal, state, or local laws, ordinances, regulations, or orders. Client acknowledges that Ninth Degree has the right to terminate service for any unlawful use of Web Site.
b. Copyright Infringement. Material available to Client when using Ninth Degree's Services may be subject to protection under Federal or state law, or other laws, protecting copyrights, trademarks, trade secrets and/or other proprietary information. Except when expressly permitted by the owner of such copyrights, Client agrees that it will not use Ninth Degree’s Service in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, that Client accesses or receive through Ninth Degree.
c. Obscenity. Client agrees that Ninth Degree is not obligated to monitor the Web Site for the purpose of examining Client's content. Client hereby acknowledges that Ninth Degree has the right, but not the obligation, to edit, remove or deny access to content that is determined to be, in Ninth Degree's sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable. Ninth Degree has the right to terminate service in such a case. Ninth Degree may disclose any content or records concerning Client's account as required to satisfy any legal requirement, regulation, government request or court order.
d. Prohibited Content. Pornography and sexually-related merchandising are expressly prohibited on the Web Site. This includes implying sexual content, display of nudity, or any link to adult content anywhere on the web. Client acknowledges that Ninth Degree has the right to terminate service if the Web Site is used in connection with any display of pornographic or sexually explicit material. Non-acceptable content in the Web Site (or links to non-acceptable content) include but are not necessarily be limited to:
i. The sale of or promotion of bulk email services.
ii. Sites containing any erotic or pornographic material, links to adult sites, or advertisements for adult sites.
iii. Sites which promote or distribute any software that is copyrighted and not freely available for distribution without cost; e.g. ROMs, ROM Emulators and MPEG Layer 3 files (MP3).
iv. Sites which contain violation of copyrights held by individuals and corporations or other entities.
v. Sites with material, links, or resources for hacking, phreaking, viruses, anarchy, or any type of site that promotes or participates in willful harm to Internet sites or providers.
e. Electronic Commerce. Client is solely responsible for the development, operation and maintenance of any products sold through the Web Site and all contents and materials appearing online or within Client's products, including without limitation (a) the accuracy and appropriateness of content and materials appearing within the store or related to Client's products, (b) ensuring that the content and materials appearing within the store or related to Client's products do not violate or infringe upon the rights of any third party, and (c) ensuring that the content and materials appearing within the store or related to Client's products are not libelous or otherwise illegal. Client will be solely responsible for the final calculation and application of shipping and sales tax. Client will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising therefrom. Client is also responsible for the security of any customer credit card numbers and related customer information Client may access as a result of conducting electronic commerce transactions through the Web Site. Client will keep all such information confidential and will use the same degree of care and security as Client uses with its confidential information. 4. Unsolicited Email ("Spam").
Unsolicited commercial advertisements (spam) sent via Ninth Degree's mail servers are not allowed in e-mail, and will likely result in account termination. The following activities are specifically prohibited:
(a) Unsolicited bulk or commercial messages ("spam"). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts. Such messages may only be sent to those who have explicitly requested it from Client's Web Site.
(b) Forging, altering or removing electronic mail headers. Any Client sending stealth spam will be terminated without warning and without refund.
(c) Sending numerous copies of the same or substantially similar message with the intent to disrupt a server or account ("mail bombing").
(d) Mail used to harass or intimidate others. Harassment, whether through language, frequency of messages, or size of messages, is prohibited. Sending a single unwelcome message may be considered harassment. If a recipient asks to stop receiving e-mail, Client must not send that person any further messages.
5. Client Contact.
Ninth Degree reserves the right to distribute informative e-mail to its subscribers on an ad hoc basis that it feels is pertinent to the quality of its service. These announcements are predominately informative in nature and often provide its subscribers with notification describing changes, upgrades, and other critical information pertaining to services. Client agrees to accept such email and to provide Ninth Degree with accurate, complete, and updated registration information. If Client does not provide Ninth Degree with accurate registration information, Client agrees that its account may be terminated.
6. Payment.
a. Responsibility. Client is responsible for all activities and charges associated with account ("Account"). If any unauthorized charges are made on or through Client's account, the Client is responsible for such charges until the Client notifies Ninth Degree of a breach of security and changes its password. Please be advised that the contact person or owner of Account is solely and personally responsible for activities conducted through, on, or with their Account. If Client, or any third-party to whom Client has given access to the Account, violates the Agreement, Client's Account may be terminated.
b. Monthly charges. If Client pays by credit card, Client expressly authorizes Ninth Degree to charge the credit card account number associated with Account for any service charges that accrue from month to month. Client reauthorizes Ninth Degree to charge the designated credit card account each month Client makes use Ninth Degree's Services. This authorization will remain valid until Client terminates said authorization in writing. Ninth Degree may immediately terminate Client's Account, in Ninth Degree's sole discretion, for declined credit cards, returned checks, or any other non-payment of account charges.
c. Term of Service. Clients who are using a discount code to order their site which provides greater than a 25% discount on setup fees must commit to a minimum of 5 months of paid service. Clients who wish to terminate service prior to 5 months of the initial date of service are financially responsible for the entire 5 months, and Ninth Degree may in its discretion charge them for 5 months of service in advance. Clients who do not use a discount code or who use a discount code for 25% discount or less on their setup fees must commit to a minimum of 1 month of paid service. The service fee for the last month of service is charged at the time the site is ordered. Website build out fee is refundable if service is cancelled within 7 days of order. Build out fee is non-refundable after 7 days of order.
d. Billing Cycle. A billing cycle will begin the first day of the month following the date Client purchases Ninth Degree's Service and will continue for one month from that date. A new billing cycle will begin on the first of the month thereafter. Client's account will be considered to be in default if payment of account charges is not received by the 15th of the month. If Client's account is still unpaid thirty days after the due date, Client may have Service interrupted or Account terminated. Ninth Degree may require advance payment for custom work.
e. Returned payment. If any instrument received in payment is returned to Ninth Degree in default, in addition to the amount due, Client will be subject to a returned check charge of $25. If Client's Account is terminated or interrupted for non-payment, Client must continue to pay your monthly account charges. Only Client's written request to terminate the Account will relieve Client of its obligation to pay the monthly account charges. If Client's account is in default, Client is subject to an interest charge of 1.5% per month, or the maximum allowable rate under law. If Client defaults on its Account or otherwise under this Agreement, Client agrees to pay Ninth Degree its reasonable expenses, including attorneys' fees and collection agency fees incurred in enforcing Ninth Degree's rights under the Agreement.
7. Indemnification.
CLIENT AGREES THAT IT SHALL DEFEND, INDEMNIFY, SAVE AND HOLD NINTH DEGREE HARMLESS FROM ANY AND ALL DEMANDS, LIABILITIES, LOSSES, COSTS AND CLAIMS, INCLUDING REASONABLE ATTORNEY'S FEES ASSERTED AGAINST NINTH DEGREE, ITS AGENTS, ITS CUSTOMERS, OFFICERS AND EMPLOYEES, THAT MAY ARISE OR RESULT FROM ANY SERVICE PROVIDED OR PERFORMED OR AGREED TO BE PERFORMED OR ANY PRODUCT SOLD BY CLIENT, IT'S AGENTS, EMPLOYEES OR ASSIGNS. CLIENT AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS NINTH DEGREE AGAINST LIABILITIES ARISING OUT OF; (1) ANY INJURY TO PERSON OR PROPERTY CAUSED BY ANY PRODUCTS SOLD OR OTHERWISE DISTRIBUTED IN CONNECTION WITH NINTH DEGREE'S SERVER; (2) ANY MATERIAL SUPPLIED BY CUSTOMER INFRINGING OR ALLEGEDLY INFRINGING ON THE PROPRIETARY RIGHTS OF A THIRD PARTY; ( 3) COPYRIGHT INFRINGEMENT AND (4) ANY DEFECTIVE PRODUCTS SOLD TO CUSTOMER FROM NINTH DEGREE'S SERVER.
8. Disclaimer.
NINTH DEGREE WILL NOT BE RESPONSIBLE FOR ANY DAMAGES YOUR BUSINESS MAY SUFFER. NINTH DEGREE MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED FOR SERVICES WE PROVIDE. NINTH DEGREE DISCLAIMS ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY NINTH DEGREE AND ITS EMPLOYEES. NINTH DEGREE RESERVES THE RIGHT TO REVISE ITS POLICIES AT ANY TIME.
NINTH DEGREE AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CLIENT AGAINST LIABILITIES ARISING OUT OF; (1) ANY MATERIAL SUPPLIED BY NINTH DEGREE INFRINGING OR ALLEGEDLY INFRINGING ON THE PROPRIETARY RIGHTS OF A THIRD PARTY; ( 2) COPYRIGHT INFRINGEMENT AND (3) ANY LICENSING RELATING TO THE HOSTING SERVER AND OPERATING SYSTEM.
ALL SUB-NETWORKS, RESELLERS AND DEDICATED SERVERS OF NINTH DEGREE MUST ADHERE TO THE ABOVE POLICIES. FAILURE TO FOLLOW ANY TERM OR CONDITION WILL BE GROUNDS FOR IMMEDIATE ACCOUNT TERMINATION.
9. Non-waiver.
Any failure by Ninth Degree to enforce any provision provided for in this Agreement shall not constitute a waiver of such provision or prejudice the right of Ninth Degree to enforce such provision at any subsequent time. The remedies reserved by Ninth Degree herein shall be cumulative and in addition to any other remedies provided in law or equity.
10. Governing law; Jurisdiction.
This Agreement is to be governed by, and interpreted according to the laws of the State of California without applying its choice of law provisions. The parties consent to the jurisdiction of the state and federal courts in California. Customer agrees service of process is effective if Ninth Degree sends a summons and complaint, filed in any California court, by certified United States mail to Client's last known address.
Should any portion of this Agreement be found to be in violation of any law in any locality, then this agreement shall be deemed to be modified only to the extent necessary to be considered legal and enforceable in such locality only.
The parties agree that any arbitration or legal action to enforce any provision of this Agreement shall be brought in the County of Orange, California.