Effective as from 1 December 2015.
1. Acceptance of the Terms of Service
2. Changes to the Terms of Service and the Website
WPSmarter reserves the right to update the Website and these Terms of Service from time to time, at our discretion and without notice. Nevertheless, this document is public on wpsmarter.com, and you will be able to track the changes for any new version. Your continued use of the Website following the publishing of updated Terms of Service means that you accept and agree to the changes.
3. Accessing the Website, Security and Privacy
4. Grant of Permission to Manage your WordPress Installation
In order for WPSmarter to work, you agree to provide us with a set of usernames and passwords that we will use to work on your WordPress site. The usernames and passwords we need are a WordPress admin user and cPanel/web host backend or SSH access to your server. By providing us with the usernames and passwords, you confirm that you are authorized to do so. Should there be a breach in our password management system, we will do our best to notify you as soon as possible so that you can reset the usernames and passwords.
5. Small Jobs
WPSmarter can at any time choose to decline to do a small job or task that the subscriber is asking WPSmarter to do if they do not align with WPSmarter’s internal definition of a small job, if the small job is unethical or that the subscriber is involved in any illegal activities. WPSmarter can ask a subscriber to break a small job into multiple jobs if the estimated job completion time exceeds 30 minutes.
6. Purchase of the WPSmarter Service
If you agree to pay the fee for WPSmarter’s service, such fee will be charged by the company designated by WPSmarter in accordance with the payment method you have chosen for your purchase. If you are paying by credit or debit card, by designating a card to be billed, you confirm that you are authorized to make such purchase and that you are the holder of such card (i.e. that the card is issued in your name). All prices stated on the WPSmarter Websites are inclusive of any applicable sales taxes and fees.
WPSmarter may change the price for the WPSmarter service from time to time. In respect of the WPSmarter service, such changed price will take effect after the expiry of the then current paid for period (i.e. the term that you have already paid for). Any price change will be communicated to you at least 14 days in advance so that you have an opportunity to elect to not renew. If you do not wish to be bound by such changed price relating to your WPSmarter service you may terminate your subscription to your WPSmarter service in accordance with Section 9 (Term and termination). Your continued use of the WPSmarter service after the communication of such price change to you constitutes an acceptance of such new price.
8. Automatic Subscription Renewal
Your subscription to the WPSmarter service will automatically renew at the end of each subscription term unless you terminate your subscription prior to the end of such subscription term in accordance with Section 9 (Term and Termination). Such renewal will always be for a monthly subscription term, even if the previous subscription term was for a longer period. At the time of, renewal the payment method you have designated to be charged for the purchase of the WPSmarter service will automatically be charged our then-current fees for the applicable subscription.
If you hire WPSmarter on a freelance basis for jobs that are larger than 30 minutes in completion time, WPSmarter will charge an hourly rate discussed with you prior to beginning the work. The payment terms for the completed work is 14 days from the invoicing date and is subject to late payment fees of $50 or 0.5%, whichever is highest, for every 14 days the invoice is overdue.
9. Disclaimer of Warranties, Limitations of Liability and Indemnification.
Your use of WPSmarter is at your sole risk. The service is provided “as is” and “as available”. We disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. We are not liable for damages, direct or consequential, resulting from your use of the Website, and you agree to defend, indemnify and hold us harmless from any claims, losses, liability costs and expenses (including but not limited to attorney’s fees) arising from your violation of any third-party’s rights. You acknowledge that you have only a limited, non-exclusive, nontransferable license to use the Website. Because the Website is not error or bug free, you agree that you will use it carefully and avoid using it ways which might result in any loss of your or any third party’s property or information.
10. Term and Termination
This Agreement will become effective in relation to you when you create a WPSmarter account or when you start using the WPSmarter service and will remain valid until terminated by you or WPSmarter. You may cancel your subscription to the WPSmarter service at any time by visiting your Subscription page which termination shall have effect at the expiry of the then-current subscription period that you have already paid for (e.g. one month, one quarter or a year). WPSmarter will not refund any remaining portion of subscription fees you have already paid. WPSmarter reserves the right to terminate this Agreement or suspend your WPSmarter account at any time in case of unauthorized, or suspected unauthorized use of the WPSmarterService whether in contravention of this Agreement or otherwise. If WPSmarter terminates this Agreement, or suspends your WPSmarter account for any of the reasons set out in this section, WPSmarter shall have no liability or responsibility for you, and WPSmarter will not refund any amounts that you have previously paid.
11. Intellectual Property
WPSmarter respects intellectual property rights, and expects you to do the same. The WPSmarter Service and the content provided through the WPSmarter Service is the property of WPSmarter or WPSmarter’s licensors and protected by intellectual property rights (including but not limited to copyright), and you do not have a right to use the WPSmarter Service (including but not limited to its content) in any manner not covered by the Agreement. Furthermore, you must not infringe any third party’s intellectual property rights in using the WPSmarter Service. Further, you may not remove or alter any copyright, trademark or other intellectual property notices contained on or provided through the WPSmarter Service.
12. Copyright infringement and take down
If you are a copyright holder who believes that any of the products, services or content which are directly available via the WPSmarter Websites are infringing copies of your work, please let us know. Under The Digital Millennium Copyright Act, 17 United States Code 512(c)(3), a notice of alleged copyright infringement should be sent to WPSmarter’s designated copyright agent at the following address:
Attn: Legal Department, Copyright Agent
1425 Broadway #20-6016
Seattle, WA 98122
A notification of claimed copyright infringement must be sent to WPSmarter’s copyright agent listed above and include the following: A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of the copyright that is allegedly infringed; Specific identification of each copyrighted work claimed to have been infringed; A description of where the material believed to be infringed is located on WPSmarter Service or the WPSmarter Websites (please be as detailed as possible and provide a URL to help us locate the material you are reporting); Contact information for the complaining party, such as a complete name, address, telephone number, and email address; A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
13. Technology Limitations and Modifications
WPSmarter will make reasonable efforts to keep the WPSmarter Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. WPSmarter reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the WPSmarter Service with or without notice.
WPSmarter may assign this Agreement or any part of it without restrictions. You may not assign this Agreement or any part of it to any third party.
15. Entire agreement
Should for any reason or to any extent any provision of this Agreement be held invalid or unenforceable, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of this Agreement and the application of that provision shall be enforced to the extent permitted by law.
17. Mandatory Arbitration; Exceptions to Mandatory Arbitration, Waiver of Class Action Rights; Limitations Period; Venue and Choice of Law
i. You and WPSmarter agree that any dispute, claim or controversy arising out of or relating in any way to the WPSmarter Service or your use thereof, including our Agreement, shall be determined by mandatory binding arbitration. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and WPSmarter are each waiving the right to a trial by jury and the right to participate in a class or multi-party action. This arbitration provision shall survive termination of this Agreement and the termination of your WPSmarter subscription. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (the “AAA Rules”), as modified by this Agreement, and as administered by the AAA. ii. You and WPSmarter agree that (a) any claims seeking to enforce, protect, or determine the validity or ownership of any intellectual property rights, and (b) any claims related to allegations of theft, piracy or unauthorized use of the WPSmarter Service are NOT subject to mandatory arbitration. Instead, you and WPSmarter agree that the preceding claims (including but not limited to claims for injunctive or equitable relief) shall be exclusively decided by Courts of competent jurisdiction in Seattle, Washington, and that applicable Washington and/or Federal law shall govern, without regarding to choice of law principals. iii. YOU AND WPSMARTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING. Further, the arbitrator shall not consolidate any other person’s claims with your claims, and may not otherwise preside over any form of a multi-party or class proceeding. If this specific provision is found to be unenforceable in any way, then the entirety of this arbitration section shall be null and void. The arbitrator may not award declaratory or injunctive relief. iv. Any arbitration must be commenced by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitations period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law. Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA’s Consumer Rules with the remainder paid by WPSmarter. Any arbitration costs or fees deemed “excessive” will be paid by WPSmarter. You and WPSmarter agree that this Agreement involves interstate commerce and is subject to the Federal Arbitration Act. You and WPSmarter further agree that applicable laws of the State of Florida shall exclusively govern any dispute without regard to choice or conflicts of law rules. The sole and exclusive venue for the resolution of any dispute, whether or not subject to mandatory arbitration as described above, shall lie in Key West, Florida.
18. English Version Prevails
In the event that this Agreement is translated into other languages and there is a discrepancy between the two language versions, the English language version shall prevail to the extent that such discrepancy is the result of an error in translation. Copyright © 2015 WPSmarter and its affiliates. All rights reserved.
1425 Broadway #20-6016
Seattle, WA 98122