Last Updated: 8-7-23
Agreement
1. These Terms of Service (“Terms”) are attached to and made a part of the Order Form between ATS and Customer and outline the terms and conditions which govern the use of our Services. In the event of any conflict between the terms and conditions of the Order Form and the terms and conditions of these Terms, the terms and conditions of these Terms shall govern. Any breach of the provisions of these Terms shall also be deemed a breach of the entire Agreement. All capitalized terms used but not defined herein shall have the meaning ascribed to them in the Order Form.
2. Please note that we may update these Terms at any time and at our sole discretion, and the latest version can be found at https://loudspot.com/contracts/tos. You are responsible for monitoring this link and being aware at all times of the most up-to-date Terms. Significant changes will take effect 30 days after being posted, except when required by applicable law, in which case they will be effective immediately. Materially adverse changes to these Terms of Service will be notified at least 90 days in advance via email to the designated account owner or through the User Portal. Your continued use of the Services after such updates constitutes your acceptance of the revised Terms. If you do not agree to any modifications, you may terminate the Agreement as outlined in the Termination section below.
3. The Agreement constitutes the entire agreement between the Parties (as defined herein) regarding the Services and other subject matter hereof, and replaces and supersedes any previous proposals, agreements, negotiations, or communications related thereto. Any substantive terms in any purchase order, order confirmation, notice of receipt, vendor registration portal, or any other document will be considered void, even if your customary business practices require such terms to be acknowledged by us through a signature or invoice reference.
Services
4. We will provide the Services in accordance with the terms specified in the Order Form and the SLA and subject to all of the terms and provisions of the Agreement. We may engage third parties to provide certain elements of the Services on our behalf, but we remain responsible for their performance as if we were providing the Services directly. You must use the Services solely for their intended purpose as described in the Agreement, including without limitation, adherence to the AUP. Additionally, you must provide us with the necessary information, assistance, and materials to enable us to deliver the Services effectively.
5. Support will be provided to you through standard channels available to our customers (e.g., knowledgebase, forums, chat, ticket). Authorized Users (as defined herein) seeking support must possess a basic understanding of the relevant systems and technology related to the Services.
6. The scope of Services under the Agreement may be modified through the mutual written agreement of the Parties, which can be achieved via click-through terms, email, support ticket, or your selections in the User Portal. Any associated fees will be clearly communicated before such changes are implemented.
7. We reserve the right to provide replacements for certain components of the Services or discontinue support for them. Such replacements or end-of-life decisions will not be considered a breach of the Agreement.
8. If you choose to utilize Beta Services (as defined herein), they will be provided on an “AS-IS” basis, without any SLA, indemnity, representation, or warranty. We reserve the right to terminate Beta Services at any time, and there is no guarantee that they will be released into production.
Authorized Users
9. You can designate Authorized Users in the User Portal to receive support and manage your account. It is your responsibility to keep your Authorized Users updated. You authorize us to provide support, Account Information (as defined herein), and make Service modifications based on instructions from your Authorized Users.
10. You may add, modify, or remove Authorized Users only through the User Portal. We will not perform these actions on your behalf. Support, assistance, and information will be provided to your Authorized Users upon verifying their identity through the User Portal. However, if you pay for the Services with a credit or debit card, we may remove the card as a payment method upon request from an individual who can provide satisfactory evidence of being the named cardholder.
11. Your Authorized Users must comply with the terms of the Agreement. You are fully responsible for the actions and liabilities incurred through your account, except when such use or liability results solely from our breach of the Agreement. Authorized Users, within their granted permissions, can make changes to the Services, and you agree to pay any associated fees. Prompt notification from you of any violations or unauthorized use of accounts by you or any of your Authorized Users is required, and you will be liable for any failure to do so.
Fees; Invoicing
12. You agree to pay the Fees as specified in the Order Form and according to the provided payment terms. If no payment terms are specified, full payment is due in advance, except for usage or overage fees invoiced monthly in arrears. If you exceed any specified limits in the Order Form, you are responsible for applicable overages. You are also responsible for paying any applicable taxes unless a valid tax exemption certificate is provided. If you choose to make payments via wire or credit transfer, you are responsible for any associated transfer fees. Overages, taxes, or transfer fees will be added to the Fees. Fees for any Renewal Term will be based on our then current rates, with advanced notice of any applicable increase. Fees are non-refundable unless expressly stated otherwise.
13. Invoices will be issued and accepted in electronic format. We will invoice you upon Order Form execution and on each subsequent renewal date. Invoices will be sent to the billing contact specified in the Order Form or User Portal. If you opt to pay via credit or debit card, the provided card will be charged immediately upon account activation and on each subsequent renewal date, up to one week before the due date. A convenience fee of 3% be added. If you choose an alternative payment method, payment is due within 30 days of receiving the invoice.
14. It is your responsibility to maintain accurate billing details and ensure timely payment of Fees. Failure to maintain accurate billing details may result in account suspension until updated information is provided. Overdue Fees may lead to late fees, service suspension, or termination of the Agreement as outlined in Section 16. You will be responsible for any charges related to the collection of unpaid Fees.
Term; Termination
15. To prevent unintended Service interruptions, the Agreement will automatically renew for successive [monthly/one year periods] upon the expiration of the Initial Term and any Renewal Term, unless either Party provides notice of non-renewal at least 30 days prior to the expiration of the then current term. However, you may terminate the Agreement at any time in accordance with Section 16.
16. You can terminate your account and the Agreement at any time through the User Portal: (i) if we materially breach the Agreement and fail to remedy the breach within 10 business days of written notice from you specifying the breach; (ii) for convenience, with at least 30 days’ notice; or (iii) for any other cause specified herein. Upon termination, you may receive a prorated refund for any unused prepaid Fees beyond the termination date (adjusted for voided discounts and any outstanding amounts owed), unless such termination is due to your material breach of the Agreement.
17. We may terminate the Agreement prior to the end of the Term: (i) if you materially breach the Agreement and fail to remedy the breach within 5 days of our notice; (ii) if we reasonably believe your use of the Services poses a risk to our network, violates the law, or interferes with services for other customers; (iii) in response to abusive, harassing, or threatening behavior towards our employees; (iv) for convenience, with at least 30 days’ notice; (v) if the Service(s) are discontinued for any reason; or (vi) for any other cause specified herein. In case of termination for convenience, you may receive a prorated refund for any unused prepaid Fees beyond the termination date, adjusted for any outstanding amounts owed.
18. After termination, you will lose access to support, the User Portal, and assistance with site migration tasks. It is your responsibility to maintain offline backups of your site.
Proprietary Rights
19. Customer Content (as defined herein) remains your exclusive property, and we claim no rights to it except as explicitly granted in the Agreement. During the Term, you grant us, our affiliates, Third-Party Service providers, and subcontractors a non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute the Customer Content solely for providing the Services under the Agreement.
20. We and our licensors own all right, title, and interest in the Services, systems, and networks used to provide the Services, including system-generated data, modifications, improvements, upgrades, and any and all intellectual property rights (including but not limited patents, trademarks, trade secrets, trade dress, and copyrights) related thereto. Unless you are explicitly granted rights pursuant to the Agreement, no other licenses, express or implied, are provided to you to use our intellectual property, including software, services, or products.
21. We may seek and you or your Authorized Users may provide feedback on the Services (collectively, “Feedback”). Any Feedback provided by you or your Authorized Users will be considered voluntary, and we may use and disclose it for any purpose without any obligation to account to you or others. We will own all rights, title, and interest in such Feedback, including any changes, modifications, or upgrades made to our existing or future products or services based on the Feedback.
Confidentiality
22. Both Parties agree to treat each other’s Confidential Information (as defined herein) with care and use it solely for the purposes stated in the Agreement. Each Party will maintain a level of protection for the Confidential Information that is no less than reasonable care, comparable to how it protects its own Confidential Information. However, either Party may disclose the other Party’s Confidential Information to the extent required by law, legal process, or court order. Such disclosures will not nullify the confidential nature of the information, and the disclosing Party will promptly notify the other Party (if legally permissible) and cooperate to minimize the extent of disclosure. Upon termination, each Party will either return or destroy the other Party’s Confidential Information in its possession, maintaining its confidentiality as part of its customary business practices. Either Party may seek injunctive relief in court to prevent a breach of this confidentiality obligation.
Security; Data Privacy
23. We will implement commercially reasonable technical and operational measures to protect our internal networks and ensure their security and integrity. However, you acknowledge that we are not liable for any loss or harm resulting from a security incident. It is your responsibility to determine whether the Services meet regulatory standards and comply with your own security requirements. You agree to configure your use of the Services in a manner that ensures their security and the security of our network (e.g., using secure software, installing patches, and not sharing passwords).
24. In the event of unauthorized access to our network affecting your Services, we will notify you promptly after fulfilling our legal obligations and investigating the incident. Similarly, you agree to notify us if you identify unauthorized access to the Services.
25. We will adhere to the Privacy Policy and the obligations set forth in the DPA throughout the Term of the Agreement. Please review those documents for more information.
Warranties, Indemnification, and Limitations
26. Each Party represents and warrants its power, authority, and legal right to enter into the Agreement and fulfill its obligations, complying with applicable laws and regulations.
27. You agree to indemnify, defend, and hold harmless ATS, its affiliates, subsidiaries, vendors, and their officers, directors, agents, and employees from any liabilities, losses, damages, penalties, fines, interest, and expenses (including reasonable attorney fees) arising from third-party claims related to your violation of the Agreement, including without limitation, the Order Form, these Terms, and the AUP. We retain the right to control the defense of any indemnified matter and approve any proposed settlement. Payment for indemnification shall be made as incurred.
28. While we perform regular backups, we do not guarantee the absence of data loss or corruption. You agree to maintain a complete and accurate copy of Customer Content independently from the Services.
29. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, ATS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND ATS AND ITS LICENSORS DISCLAIM ALL IMPLIED WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR-FREE SERVICE, AVAILABILITY, ACCURACY, OR IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
30. OUR LIABILITY ARISING FROM OR RELATED TO THE AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, SHALL NOT EXCEED THE FEES PAID OR OWED BY YOU TO US IN THE THREE MONTHS PRECEDING THE DATE OF THE CLAIM.
31. NEITHER WE NOR OUR LICENSORS SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR CONNECTED TO THE AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
32. THE SLA PROVIDES THE SOLE REMEDIES FOR DOWNTIME, UNAVAILABILITY, OR OTHER SLA FAILURES.
33. The limitations stated in this section are subject to applicable law and do not affect your payment obligations for Services provided.
Limitation of Liability
34. While we strive to perform regular backups of your site and Customer Content as outlined in the Order Form,1 we cannot guarantee that there will be no data loss or corruption. Backup points may be affected by various factors, including pre-existing corruption or changes during the backup process. We will offer support and assist in troubleshooting any known or discovered issues with your backups. However, you acknowledge that we are not liable for the integrity of your backups or the successful restoration of your Customer Content. It is your responsibility to maintain a complete and accurate copy of your Customer Content independently from our Services.
35. Except as explicitly stated in the Agreement, neither Party provides any warranties, whether express, implied, statutory, or otherwise. ATS and its licensors specifically disclaim all implied warranties, including but not limited to warranties of merchantability, fitness for a particular purpose, non-infringement, uninterrupted or error-free service, availability, and any implied warranties arising from statute, course of dealing, course of performance, or usage of trade to the maximum extent permitted by applicable law. The Services are provided on an “as-is,” “as available,” and “with all faults” basis.
36. Our liability arising from or related to the Agreement, regardless of the theory of liability, is limited to the aggregate amount of fees paid or owed by you to us in the three months preceding the date of the claim.
37. In no event shall we or our licensors be liable for indirect, special, incidental, consequential, or punitive damages, or any cover or lost profits, arising out of or in connection with the Agreement, whether or not we have been advised of the possibility of such damages.
38. The remedies provided in the SLA are your sole remedies for downtime, unavailability, or other SLA failures.
39. The limitations in this section are subject to applicable law and do not affect your payment obligations for the Services provided.
General Provisions
40. Assignment: You may not assign the Agreement, in whole or in part, without the prior written consent of ATS. We may assign the Agreement, in whole or in part, without your consent, including without limitation, in the case of a merger, reorganization, sale of assets, or similar transaction. Any assignment in violation of this provision is null and void. The Agreement is binding on permitted successors and assigns.
41. Force Majeure: We shall not be considered in default or breach of the Agreement due to any Force Majeure Event (as defined herein).
42. Governing Law and Venue: The Agreement is governed by the laws of the State of Virginia, without regard to its choice of law statutes. Any disputes must be brought in the state or federal courts located in Fairfax County, Virginia, subject to certain exceptions. Neither Party may bring a claim as a class or collective action. The United Nations Convention on the International Sale of Goods does not apply. The Parties waive any right to a jury trial in connection with any action or litigation arising from or related to the Agreement.
43. Arbitration: Both Parties agree to resolve all disputes through binding, individual arbitration under the rules of the American Arbitration Association. The arbitrator’s award may be entered in any court of competent jurisdiction. The arbitrator cannot award damages, remedies, or awards that conflict with the Agreement. Each Party will pay its own arbitration fees, and neither Party will seek attorneys’ fees and costs from the other Party for the arbitration unless the arbitrator deems such other Party’s claim frivolous. You may opt out of arbitration by providing written notice within 30 days of becoming subject to this provision.
44. Notices: Except as otherwise required, notices are effective upon delivery, as indicated by a delivery receipt or 5 business days after being mailed. Notices to you will be made to the address recorded in the User Portal or via email to an Authorized User. Notices to us should be delivered to the address provided in the Order Form or by confirmed email at [email].
45. Publicity: The Parties may disclose their business relationship and include each other’s name and logo as customers or vendors, subject to usage guidelines and without mischaracterizing the nature of the relationship. Any other use of a Party’s name, logo, or trademarks requires the prior written consent of such Party in each instance. Neither Party may disclose or advertise details of the Agreement or use the other Party’s name, logo, or trademarks in connection with a similar product or service without the prior written consent of such Party in each instance.
46. Severability: If any provision of the Agreement is illegal or unenforceable in any jurisdiction, it shall only be limited to the extent of such illegality or unenforceability, if possible, without invalidating the remaining provisions.
47. Survival: Provisions of the Agreement that contemplate performance or observance after termination or expiration, including “Proprietary Rights,” “Confidentiality,” “Warranties, Indemnification, Limitations,” “Limitation of Liability,” and “General Provisions,” shall survive the expiration or termination of this Agreement for any reason.
48. Third-Party Beneficiaries; Relationships: The Agreement does not create third-party beneficiaries, joint ventures, or partnerships between the Parties. No Party is authorized to act as an agent, employee, or legal representative of the other Party. No Party may make representations or warranties on behalf of the other Party or its affiliates, agents, subcontractors, licensors, or third-party suppliers.
49. Waiver: The failure or delay to exercise any right, remedy, or power under the Agreement does not constitute a waiver of that right, remedy, or power.
Definitions
50. “Account Information” means the information about your account or your Authorized Users which is required by us to provide the Services to you including account settings and billing data.
51. “Authorized User” means a user whom you have authorized to access and manage your account through the User Portal.
52. “Beta Services” means any services which are clearly and conspicuously designated by us as Beta Services. Beta Services may be in early stages of testing or development, are not recommended for production use, and are subject to additional disclaimers and limitations as described in the Agreement.
53. “Confidential Information” means information disclosed by one Party to the other, directly or indirectly, in writing, orally, or by inspection of tangible objects, which should be reasonably understood to be confidential by its particular identification or designation, the circumstances of its disclosure, or the nature of the information itself. Confidential Information does not include information which, at such time: (i) is generally known or available to the public without breach of the Agreement by the receiving Party; (ii) is rightfully disclosed to the receiving Party without restriction as to further use or disclosure; or (iii) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession. Confidential Information is and shall remain the property of the disclosing Party (or its licensors, as applicable), and no rights are granted to the Confidential Information other than those rights expressly granted in the Agreement.
54. “Customer Content” means the text files, images, photos, videos, sounds, or other materials or works of authorship belonging to you or your end users or Authorized Users that you cause to be stored within the Services, excluding Account Information.
55. “Force Majeure Event” means any event that is caused by or results from acts that are beyond ATS’s reasonable control and which prevent ATS from providing the Services, including without limitation, (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, pandemic or similar influenza or bacterial infection (which is defined by the United States Center for Disease Control as virulent human influenza or infection that may cause global outbreak, or pandemic, or serious illness); (j) emergency state; (k) shortage of adequate medical supplies and equipment; (l) shortage of power or transportation facilities; and (m) other similar events beyond the reasonable control of ATS.
56. “Initial Term” means the “Initial Term” as defined in the Order Form.
57. “Order Form” means the Order Form between the Customer and ATS which describes the Services and incorporates these Terms and the rest of the Agreement.
58. “Party” means either Customer or ATS; “Parties” means both Customer and ATS.
59. “Renewal Term” means any successive term after the Initial Term.
60. “Services” means the hosting, support, and other related services we provide to you as described in the Order Form.
61. “Term” means the entirety of the Initial Term and all Renewal Terms, if any.
62. “Third-Party Service” means any third-party products or services which are not sold or licensed by us, but which are made available for you, in your sole discretion, to enable or integrate with the Services (e.g. third-party themes and plugins available through the WordPress administrative portal). We maintain no control over and disclaim any and all liability for Third-Party Services, even where we may have provided limited support or advice to you in relation to such services. Such Third-Party Services are provided in good faith, AS-IS and AS-AVAILABLE, and solely for your convenience.
63. “User Portal” means the web site located at https://login.loudspot.com/, which we make available to our customers for the purpose of managing their account and the Services.