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ProfitBuilder Terms of Service
   
GENERAL TERMS 

The following Terms of Service (TOS) apply to your use or access of any resources, services, or information on the ProfitBuilderWebsites.com, TryProfitBuilder.com, or the client websites leased by ProfitBuilder Websites, Inc. (herein after known as “Service Provider”). Please read all of the following terms fully and carefully before using this website or any website or service owned and operated by Service Provider. All information and/or Content (as defined solely in these Terms) on the Service Provider web sites (including, but not limited to the design, layout, organization, and the underlying source code, which herein may be referred to as “Site") may be used solely under the following Terms.

You must accept the terms of this Agreement before using our services or websites or accessing or using the services and websites. By checking the "ACCEPT" checkbox on the free trial or ordering screen on our website, or by downloading, copying, or otherwise using our Websites or Services, You are indicating that You have read and understood, and that You assent to be bound by, the terms of this Agreement. If You do not agree to the terms of the Agreement, You are not granted any rights whatsoever to access our services or websites and must immediately exit our website now and discontinue any use of our services.

The terms contained in this agreement may be changed at any time by Service Provider, at its sole discretion, without notice. Use of the Site subsequent to any change constitutes User’s acceptance of the change. You are advised to read these Terms every time You access our website or services for any changes to these Terms.

 
BILLING AND PAYMENT 

If You signed up or requested a 21-day Free Trial of any Service Provider product or service, you will receive 21 days of service at no charge, beginning on the same day you requested the free trial. On the 22nd day, You will automatically be billed the non-refundable $497 set-up fee. You will continue to be billed $37 each month thereafter on the same day as the first charge was posted (i.e., if first charge was posted on the 13th, any future charges will be billed to your credit card on the 13th of each month. If you were billed on the 29th, 30th, or 31st, you will be billed each month on the 28th). Client agrees to the pricing terms and authorizes Service Provider to charge the monthly recurring fees either by auto charge or auto debit. Further, Client authorizes Service Provider to auto charge or auto debit his/her account for services or products ordered in the future from Service Provider (whether by phone or in writing), if an auto charge or auto debit account has been set up with Service Provider.

All invoices not paid within thirty (30) days from the due date will also be assessed a service charge of $20.00 per month to cover the administrative costs of rebilling and collection. For accounts which go beyond 60 days past due, we reserve the right to deactivate services. If we choose to deactivate and you wish to re-join, a reactivation fee may be charged. For any amounts more than thirty (30) days overdue, you will be responsible for paying any collection costs incurred (including reasonable attorneys' fees) with respect to the amount of any past due fees, as well as remaining fees due in the contract terms. 
 
CANCELLATION 

Please visit our Cancellation page for further details.

 
SERVICE PROVIDER’S INTELLECTUAL PROPERTY 

Service Provider grants Client a single user, non-exclusive, revocable, worldwide, non-transferable license during the Term to use Service Provider’s products, tools, and modules which Client has ordered or which have been developed by Service Provider for Client only on Service Provider's server. All such licenses shall terminate at the end of the Term, the cancellation of the license or upon the Service Provider’s cancellation of the services to Client, whichever occurs first. Client shall not under any circumstances resell, distribute or allow any other company, entity or person to use any of Service Provider’s products, modules, tools, scripts, graphics, text, database/programming code and object/source code or data attained by or through Service Provider without Service Provider’s written consent. As between Client and Service Provider, the parties agree that Service Provider shall own and retain all intellectual property rights, copyrights, patents and all rights, title and interest in and to all of the products, modules tools, scripts, graphics, text, database/programming code and object or source codes, provided or supplied by Service Provider that are displayed on Client’s Website or used in the development or the maintenance of Client’s Website, aside from those items which client will own as noted above. Client further acknowledges and agrees that all of Service Provider’s Products, whether confidential or not, are subject to the copyright and trademark laws of the United States, and Client agrees not to infringe on any of those rights.

 
DISCLAIMER OF WARRANTIES 

By using the Site or any of Service Provider’s Services, You agree that:

a. Your use of the service is at your sole risk. The service is provided on an "as is" and "as available" basis. Service Provider expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

b. Service Provider makes no warranty that (i) the service will meet your requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, or (v) any errors in the software will be corrected.

c. Any material downloaded or otherwise obtained through the use of the service is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.

d. No advice or information, whether oral or written, obtained by you from Service Provider or through or from the service shall create any warranty not expressly stated in this Agreement.

 
LIMITATION OF LIABILITY AND INDEMNITY 

NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY STATED OR IMPLIED HEREIN, IN NO EVENT AND UNDER NO THEORY OF LIABILITY SHALL SERVICE PROVIDER, ITS OFFICERS, DIRECTORS, OR EMPLOYEES OR ANY AFFILIATE OF SERVICE PROVIDER THEREOF BE LIABLE TO THE OTHER PARTY FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING PUNITIVE DAMAGES) ARISING FROM THIS AGREEMENT, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, SUCH AS, BUT NOT LIMITED TO (i) USER’S USE OR INABILITY TO USE SERVICE PROVIDERS WEBSITES OR SERVICES; (ii) ANY CHANGES TO OR INACCESSIBILITY OF SERVICE PROVIDER’S WEBSITED OR SERVICES; (iii) DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA; (iv) ANY MATERIAL OR DATA STORED, SENT OR RECEIVED OR NOT STORED, SENT OR RECEIVED; (v) ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE PROVIDER’S WEBSITES OR SERVICES, OR (vi) ANY DATA OR MATERIAL FROM A THIRD PARTY ACCESSED ON OR THROUGH THE SERVIOCE PROVIDERS WEBSITES OR SERVICES (vii) LOSS OF REVENUE, (viii) LOSS OF TECHNOLOGY, (ix) LOSS OF DATA, (x) LOSS OF USE OF SERVICE OR EQUIPMENT, (xi) LOSS DUE TO COMPUTER VIRUS, (xii) OR LOSS OF ANTICIPATED PROFITS OR (xiii) LOST BUSINESS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT AND UNDER NO LEGAL THEORY WILL SERVICE PROVIDER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CLIENT TO SERVICE PROVIDER DURING THE LAST SIX MONTHS. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

Client agrees to indemnify, defend, and hold Service Provider, its officers, directors, agents, affiliates and employees harmless against any third party claim, action, suit or proceeding (i) alleging any breach of the covenants contained in this Agreement, the Terms of Use or the Privacy Policy, or (ii) arising from errors or inaccuracies in the Content of the Client’s Website, or (iii) the unavailability or uninterrupted use of Service Provider’s websites or any of Service Provider’s services, or any portion thereof, or (iv) defects, viruses, worms, or any other harmful components on Service Provider’s websites or the server that maintains Service Provider’s services.

Client shall indemnify Service Provider, its officers, directors, employees or its affiliates for all losses, damages, liabilities and all reasonable expenses and costs (including all legal costs) incurred by Service Provider as a result of a judgment entered against Service Provider in any such claim, action, suit or proceeding. Client's obligations under this Section are conditioned upon Service Provider: (a) giving the Client prompt written notice of any claim, action, suit or proceeding for which Service Provider is seeking indemnity; and (b) reasonably cooperating with Client at Client's expense.

 
GOVERNING LAW 

This Agreement will be governed and enforced in accordance with the laws of the State of New Mexico without giving effect to principles of conflict of laws. Both parties agree to submit to exclusive jurisdiction in New Mexico with respect to this Agreement and further agree that any cause of action relating to this Agreement shall be brought and maintained in a court in Bernalillo County, New Mexico.

 
FORCE MAJEURE 

Except for the obligations to make payments, neither party shall be liable to the other or any third person for any delay or default in performing its obligations hereunder if such delay or default is caused by force majeure, such as wars or insurrections, riots, acts of government, strikes, work stoppages, labor troubles, fire, explosion, earthquake, flood, embargoes and/or inability to obtain materials, acts of God or other cause outside the reasonable control of the Party.

 
SEVERABILITY AND WAIVER 

If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

 
ASSIGNMENT 

Client may not assign this Agreement without the written consent of Service Provider. Service Provider’s rights and obligations will bind and inure to the benefit of its respective successors and assigns.

 
INDEPENDENT CONTRACTORS 

The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Service Provider shall work exclusively for Service Provider and shall not, for any purpose, be considered employees or agents of Client.

 
ENTIRE AGREEMENT 

This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Only a writing signed by both parties may change it. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. Where there is a conflict between this Agreement and the Terms of Use and/or the Pricing/Product Agreement, this Agreement shall be controlling.

 
 
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