Atomized Theory, Inc. does business as (d/b/a) “The Site Factory” or “thesitefactory.com” and hereinafter shall be referred to as The Site Factory.
This is an important legal document. You are encouraged to read it thoroughly and to assure that you understand it, before agreeing to use The Site Factory services.
You must read and agree to all terms in this document before using our services. By using or continuing to use The Site Factory services, you are automatically agreeing to the terms of this document.
The agreement below is a legal agreement between The Site Factory and all of our customers. If you use any service provided by or affiliated with The Site Factory, you are legally bound by this agreement. Read it carefully before signing up and ensure that you understand and agree to all parts. Use of our services implies agreement with this contract.
Questions regarding this agreement should be sent to The Site Factory prior to signing up for service.
Last Updated: December 11, 2016
THIS AGREEMENT (“Agreement”) is made and effective as of the date of acceptance, by and between you (“Client”) and The Site Factory.
WHEREAS, The Site Factory owns, distributes and provides various intangible services for conducting business on the Internet including: website creation, website hosting, and the The Site Factory family of services (hereinafter collectively referred to as the “Services”).
WHEREAS, Client desires to utilize some or all of the Services to develop, enhance or maintain Client’s business and/or presence on the Internet.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
The Site Factory agrees to provide to Client the Services agreed upon between The Site Factory and Client as selected by Client in The Site Factory’s customer database that is specified at thesitefactory.com.
2.1 In consideration of the performance of the Services, Client shall pay The Site Factory in advance the amount set forth in The Site Factory’s customer database as such records are amended from time to time for the Services during the term of this Agreement.
2.2 Client is responsible for all activities and charges resulting from Client’s use of the Services. Client agrees to pay all fees, incurred by Client and set forth in the monthly billing statement. In the event of a breach of security, Client will remain liable for any unauthorized use of the Services until Client notifies The Site Factory by sending an e-mail with account information to The Site Factory.
2.3 Current rates for using the Services may be obtained on our web site at thesitefactory.com. Unless the Client is specifically covered by a Lifetime Rate guarantee, The Site Factory reserves the right to change fees, surcharges, or to institute new fees at any time. In addition, The Site Factory may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Client upon sign up. If The Site Factory does not receive the full amount of Client’s Service account balance, The Site Factory may suspend and/or terminate Client’s account immediately without further notice to Client.
2.4 Lifetime rate guarantee. Once Client signs up for a paid plan, the monthly rate for the portion of the plan services that are delivered directly by The Site Factory (not from a third party) is guaranteed not to increase as long as Client does not switch to a different plan, remains in good standing and services have not been terminated by either party for any reason. Note that certain services (for example, email hosting services) are not delivered directly by The Site Factory, and are simply procured for Client as part of the monthly plan rate. If such a third party service increases in price, that price increase will be passed on to Client. If Client has an unpaid account balance for greater than 30 days, then any prior Lifetime Rate guarantee shall become void, and Client will be billed for any future services at the prevailing prices as specified at The Site Factory’s website: thesitefactory.com.
2.5 All services renew automatically. Client may opt out of automatic renewals by contacting The Site Factory, or by requesting a plan cancellation at the Client member account page at thesitefactory.com
3.1 Means of Performance. The Site Factory shall provide Client with services, as described at www.thesitefactory.com hereto. The Site Factory has the right to control and direct the means, manner, and method by which the services are performed.
3.2 Support. The Site Factory shall provide a reasonable level of technical support to Client via email or online help ticket for the term of this Agreement.
3.3 Other Work. The Site Factory has the right to perform and license products to others during the term of this Agreement. The Site Factory may elect to electronically monitor the host services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host services and protect its Clients. The Site Factory reserves the right to block any site hosted by The Site Factory that contains any content that The Site Factory deems in its sole discretion to be unacceptable or undesirable.
4.1 Client. Client represents and warrants that (i) Client is at least eighteen (18) years of age, (ii) Client possesses the legal right and ability to enter into this Agreement, and (iii) the performance of Client’s obligations and use of the Services by Client, its customers and users, will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other The Site Factory Clients’ use of Services. Client assumes all risks related to processing of transactions related to electronic commerce.
4.2 Breach of Warranties. In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, The Site Factory will have the right, in its sole discretion, to suspend or terminate immediately any Services.
4.3 Fees and Expenses. Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and a third-party domain name registrar.
4.4 Third-Party Software. Third-party software available through the Services may be governed by separate end user licenses. By using the Services and the third-party software, Client agrees to be bound by the terms of such end user licenses regarding the applicable third-party software. Client consents and authorizes The Site Factory to delegate the authorizations Client provides to The Site Factory to its third party service provider(s) as The Site Factory deems necessary or desirable to provide the applicable Services. Client agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such third party service providers and such third party service providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. Client also agrees that all reference to “The Site Factory” within this Agreement and any incorporated terms are also deemed to include, where applicable, The Site Factory’s agents, such as the third party service providers.
4.5 Advertising, Solicitation, and Client Name Harvesting. Client may not use the Services to send unsolicited advertising, promotional materials, or other forms of solicitation to the The Site Factory clients or other Internet users unless Client receives the express permission of such individuals. Client may not use the means of unsolicited advertising to advertise a site hosted on the The Site Factory network. Client may not use the Services to collect or “harvest” user-names of The Site Factory clients or other Internet users without the expressed prior permission of the member.
4.6 Management of Site Content. Client shall be solely responsible for all Client-provided content available on or through its site, and shall at all times be subject to the terms of this Agreement and any generally applicable guidelines and service standards published by The Site Factory. Client warrants that its site hosted on the The Site Factory network (i) will conform to this Agreement; (ii) will not infringe and will not contain any Client-provided content that infringes on or violates any copyright, U.S. patent or any other third-party right; and (iii) will not contain any Client-provided content which violates any applicable law, rule or regulation. The Site Factory shall have no obligations with respect to the Client-provided content available on or through any site hosted on the The Site Factory network, including, but not limited to, any duty to review or monitor any such content. The Site Factory reserves the right to block any site that violates any of the above-stated terms, or which in The Site Factory’s sole discretion, The Site Factory deems objectionable or offensive, or otherwise violates a law or The Site Factory policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.
4.7 Compliance Laws. Client agrees that it will use the Services only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and this Agreement, as updated by The Site Factory from time to time.
4.8 Works Rights. Unless otherwise specified, all work performed hereunder by The Site Factory, is the property of The Site Factory, and all title and interest therein shall vest in The Site Factory. To the extent that title to any such works may not, by operation of law, vest in The Site Factory all rights, title and interest therein are hereby irrevocably assigned to The Site Factory. All such materials shall belong exclusively to The Site Factory, and The Site Factory shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give The Site Factory and any person designated by The Site Factory such reasonable assistance, at The Site Factory’s expense, as is required to perfect the rights defined in this paragraph.
4.9 Design Content and Images Rights. Client agrees and understands that the base design, including content and images, included on both the base site (thesitefactory.com) as well as themes provided for the Client to use for their own website hosted by The Site Factory, remain the property of The Site Factory and nothing about this Agreement conveys a license, ownership or otherwise to Client. Client agrees that Client shall under no circumstances use the base design content or images provided by The Site Factory for any purpose other than within the website hosted by The Site Factory which the Client creates as due course when using the services provided by The Site Factory. The foregoing restriction shall not apply to any images deemed “public domain”. If Client has a question about the ownership or license status of any images used by The Site Factory, they may contact The Site Factory for further information.
5.1 Limitation. In the event that any limited guarantees are provided by The Site Factory, such limited guarantees are null and void if Client fails to follow this Agreement and other The Site Factory policies or otherwise breaches this Agreement in any respect.
5.2 No Other Warranty. The Site Factory does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Services or any information that may be obtained there from is at Client’s own risk. The Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. The Site Factory does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. The Site Factory does not represent or warrant that the Services will be uninterrupted, error-free, or completely secure.
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. The Site Factory does not and cannot control the flow of information to or from The Site Factory’s network and other portions of the Internet. Such flow depends in large part on the performance of the Internet services provided or controlled by third parties. At times, actions or inactions of such third parties may impair or disrupt Client’s connections to the Internet (or portions thereof). The Site Factory cannot guarantee that such events will not occur. Accordingly, The Site Factory disclaims any and all liability resulting from or related to such events.
Client agrees to indemnify, defend and hold The Site Factory and its affiliates, agents, employees, and licensors (including the third party service providers) harmless from any and all claim, demand, loss, costs or expense, including attorneys’ fees, made by any person arising out of Client’s violation of this Agreement, State or Federal Securities laws or regulations, or any other person’s rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.
Under no circumstances, including but not limited to a negligent act, will The Site Factory or its affiliates, agents, employees, or licensors (including third party service providers) be liable for any damages of any kind that result from the use of, or the inability to use, Services, even if any such party has been advised of the possibility of such damages.
In no event will The Site Factory or its third party service providers be liable to Client or any third Party for any tort, contract or any other liability arising in connection with the use of the Services, or reliance on any information or services provided by The Site Factory. The Site Factory and its third party service providers will under no circumstances be liable to Client and/or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if The Site Factory or its third party service providers has been advised of the possibility of such damages, resulting from: (i) the use of the inability to use the Services; (ii) the timeliness, deletion, mis-delivery, or failure to store any user date, communications or personalization settings; (iii) the cost of getting substitute goods and services resulting from any products, data, information or services purchases or obtained or messages received or transactions entered into, through or from the Services; (iv) statements or conduct of anyone on the Services; (vi) the use, inability to use, unauthorized use, performance or non-performance of any third party, even if the third party has been advised previously of the possibility of such damages; or (vii) any other matter relating to the Services. Client agrees that Client will not in any way hold The Site Factory responsible for any selection or retention of, or the acts or omissions of, third parties (including third party service providers) in connection with the Client Services.
Because some states prohibit the limitation of liability for consequential or incidental damages, in such states the limitation of liability only with respect to consequential or incidental damages may not apply to Client, and the respective liability of The Site Factory and its third party service providers, employees, distributors and agents is limited to the greatest extent allowable under applicable law in those states.
In the event that a court or arbitration panel, as the case may be, should hold that the limitations of liability or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of Client’s remedies under this Agreement fail, then Client expressly agrees that under no circumstances will the total, aggregate liability of The Site Factory and its third party service providers, employees, distributors, agents or affiliates, to Client or any party claiming by or through Client for any cause whatsoever exceed $100 (U.S.), regardless of the form of action and whether in contract, statute, tort or otherwise.
7.1 Without Cause. This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than five (5) days’ prior email notice of termination. No matter which party terminates the Agreement pursuant to this Section 7.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such five (5) day period.
7.2 For Cause. In addition to any other rights it may have under this Agreement or applicable law, The Site Factory may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a default in payment, or (ii) Client’s breach or failure to comply with this Agreement or other policies of The Site Factory. Client may terminate this Agreement if The Site Factory breaches any material term or written notice of same. If this Agreement is terminated by The Site Factory under this Section 7.2, all balance of the then current term shall immediately become due and payable. In addition to the foregoing, The Site Factory reserves the right to prohibit any conduct or to remove any materials or content which The Site Factory believes in its sole discretion to be illegal or potentially harmful to others or may expose The Site Factory to harm or liability.
7.3 No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Services of this Agreement in accordance with its terms.
7.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Section 4, 5, 6, 7, and 8.
8.1 Assignment. Client may not assign this Agreement or any of Client’s rights or obligations hereunder without the prior written consent of The Site Factory, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties’ respective successors and permitted assigns.
8.2 Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile.
If to The Site Factory:
Atomized Theory, Inc.
4 Marshall Rd #188
Wappingers Falls, NY 12590
If to Client:
To Client address provided at Client Dashboard, after account set-up is completed.
8.3 Governing Law. This Agreement, and all future agreements Client may enter into with The Site Factory, unless otherwise indicated on such other agreement, will be governed by the laws of the State of New York, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with The Site Factory in New York or elsewhere. Unless a dispute would be governed by an applicable arbitration clause, Client agrees to submit to the personal and exclusive jurisdiction of the courts located within the County of Dutchess, New York. If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
8.4 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
8.5 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
8.6 Severability. In the event any one or more of the provisions of the Agreement or any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
8.7 Force Majeure. The Site Factory and its affiliates, agents, employees, or licensors (including third party service providers) shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, ware, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.
8.8 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
8.9 Implied Agreement. CONTINUED USE OF THE SERVICES AND/OR PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT IN ITS ENTIRETY. BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY ALL TERMS ASSOCIATED WITH SAID SERVICES.
CLIENT’S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7 HEREIN.
8.10 Entire Agreement. This Agreement, and the exhibits reference herein, sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which are different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
8.12 No Party Deemed Drafter. In the event that any provision hereof is construed by a court of law or equity or an arbitrator, no provision herein shall be construed more harshly against either party as drafter.
Any questions regarding this agreement should be sent to The Site Factory, prior to signing up for services.