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Terms of Service(TOS)

Last Updated:  1-April-2009

Introduction

These Terms of Service (TOS), along with our Acceptable Use Policy (AUP), and Privacy Statement, both herein incorporated by reference, provide a set of policies and conditions that bind us. These Terms of Service is between Deep Web Technologies, Inc. d/b/a Deep Web Technologies (herein after Deep Web Technologies, "Company," "we," "our," or "us") and you, our client (hereinafter "Client," "you" or "your").

For questions, comments or suggestions, please contact us at:

Deep Web Technologies
301 N. Guadalupe, Ste. 201
Santa Fe, NM 87501
(p) 1.505.820.0301
(f) 1.505.983.7621
www.deepwebtech.com
Contact Us

BY ACCESSING OR USING THIS WEBSITE, OR ENGAGING US FOR SERVICES, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND, AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THESE TERMS OF SERVICE.

Definitions

  1. "Work Product" means, the copyrights, look-and-feel, layout, programming, material, designs, discoveries, products, programs, routines, procedures, processes, formulas, know-how, techniques, improvements, developments, drawings, notes, documents, templates, images or elements within a design, font styles, images within fonts or elements, information and materials made, conceived or developed by Deep Web Technologies alone or with others in the performance of the Services contracted, including without limitation, any and all materials provided to you hereunder by Deep Web Technologies.
  2. "Services" means any and all Work Product, functionality, advice, consulting or other work or efforts expended, loaned, leased, rented, given or otherwise provided to you by Deep Web Technologies, whether over the Internet or otherwise.

Deep Web Technologies Responsibilities

  1. Maintenance. Deep Web Technologies shall be responsible for maintaining Services; and shall strive to keep all functionality and sensitive data secure; and shall issue updates from time to time.
  2. Support. Deep Web Technologies shall be responsible for providing documentation, training, support and access to Services to you, our Client.
  3. Client Data. Deep Web Technologies agrees to not sell or intentionally release your client data, except to third-party vendors as may be necessary to provide Services, or as required by law or compelled by court order.

Your Resposibilities

  1. Maintaining Relationships with Publishers. You understand that we do not manage or maintain relationships with publishers, and that it is your responsibility to do so. If you use our services for fee-based collections, you are responsible for maintaining valid and active accounts with the publishers of those collections, and keeping us informed on the valid credentials for such collections.
  2. Maintaining Successful Client Relationships. You agree to abide by the following requirements as it relates to business ethics and operational guidelines:
    • You agree to timely respond to the online requests and email of us, as well as your clients.
    • You agree to maintain, publish and adhere to a privacy policy at least as protective to client information as ours; or alternatively and if appropriate, to review the privacy policy we publish on your website, and alert us to any corrections you believe must be made. You understand and agree that your privacy policy is a contract between you and your clients, and you will abide by that contract, as well as indemnify and hold Deep Web Technologies harmless for any breaches you commit against that privacy policy.
    • You agree to maintain, publish and adhere to a Terms of Service compatible with ours; or alternatively and if appropriate, to review the various Terms of Service we publish on your website, and alert us to any corrections you believe must be made. You understand and agree that the various Terms of Service contained on your website is a contract between you and your clients, and you will abide by that contract, as well as indemnify and hold Deep Web Technologies harmless for any breaches you commit against any of the Terms of Service contained on your website.
  3. Timely Reporting of Problems. You agree to notify us as quickly as practical, when you become aware of any critical failure in Services or breach of security.
  4. Adherence to our Terms of Service and AUP. You agree to read and abide by these Terms of Service and the AUP located on our website. You acknowledge that these agreements are intended to protect the quiet enjoyment of Services for all clients, and that a violation of either of these agreements could result in immediate termination of Services without notice to you. You further agree that we may amend or make modifications to our Terms of Service and AUP from time to time and without notice to you.

Fees and Payment Policies

  1. Fees. You will pay to Deep Web Technologies the fees in accordance with the fees listed on our website. All fees are non-refundable, except as otherwise provided herein.
  2. Payment by Credit Card. You hereby grant Deep Web Technologies permission to charge your credit card for any and all Services requested on a recurring basis.
  3. Enforcing Payment. We reserve the right to take any action we deem necessary to secure payment for Services, including but not limited to suspending or deactivating any and/or all Services. You agree to indemnify and hold us harmless from any liability resulting from our actions attempting to secure payment for Services.
  4. Taxes. All fees are exclusive of all taxes, duties or levies; however they are designated or computed. You will be responsible for, and pay all taxes based on payments due as a result of paying for and/or receiving Services, which may include but are not limited to gross receipts, sales, use, or value-added taxes, duties, withholding taxes and other assessments now or hereafter imposed, exclusive of taxes based upon Deep Web Technologies's net income.

Term

  1. Term. Unless terminated as set forth herein, these Terms of Service will commence on the first day you receive any amount of Service from us, and will continue for the default term you selected in creating an account. Thereafter, this Agreement will automatically renew on an equivalent basis to your original term. The initial term and any renewals will collectively be referred to as "Term."
  2. Effect of Termination. Upon termination of Services, the following shall apply:
    • All rights and obligations provided under the sections entitled "Confidentiality" and "Indemnity, Warranty and Liability" shall survive termination for any reason.
    • Neither Party shall be liable to the other for damages, losses, costs or expenses whatsoever on account of such termination arising from or in connection with the loss of prospective sales, expenses incurred or investments made with the establishment, development or maintenance of either Party's business.

Account Ownership

The account owner is the individual or company listed in our database as the party responsible for paying for the account and listed as the account credit card holder, unless a different name has been authorized to make administrative account decisions. We are not liable for any account disputes that may arise between various parties holding your account login information when the information has been distributed by the verified account holder. We are not responsible for any changes made to the account or any information that has been modified by you, or any parties authorized by you, to access or utilize Deep Web Technologies Services.

We are not responsible for errors or omissions to your account through Deep Web Technologies. You understand and acknowledge that errors entered into Deep Web Technologies will show up immediately in the Services we provide you.

Complaints Against Our Clients

Generally speaking, unless we are required by law, we respond to third-party complaints or notices by submitting the information to you and asking you to respond appropriately.

We do not monitor your website content or the email of our clients, nor do we take responsibility for the content or information contained on your website(s) or email(s).

We will use our best judgment in determining the sufficiency and adequacy of subpoenas, and you agree we are not liable to you in instances where we comply with a subpoena, and it later turns out the subpoena was improper, not legally sufficient or not adequate.

Emergencies & Use Affecting Others

We reserve the right to take any proactive steps we deem necessary to maintain the security, connectivity, performance and services of our Clients, including but not limited to actions requiring us to suspend Services, shut down our network, or remove one or more publishers from our Services.

In rare instances, we may need to completely delete an account because of some significant failure, security breach or other emergency. In such cases, we do our best to backup your account, but we cannot guarantee a full restoration.

Delegation of Duties

We reserve the right to delegate the rights or duties of these Terms of Service to a third-party, as well as transfer your account in the sale of assets or accounts to another organization. You agree that your Contract for Services may be transferred by us to another without limitation, and your duties and obligations under these Terms of Service shall not diminish under any circumstances involving a change of control, forfeiture, exchange of assets or bankruptcy (hereinafter "Change of Control") where performance for Services is the same, or substantially similar to, Services before the Change of Control occurred.

Proprietary Rights & Intellectual Property

The Parties intend and agree that ownership in any and all Intellectual Property remain with the Party that created or introduced the relevant material, and in particular (i) marks that uniquely identify you reside with you, and (ii) any and all Work Product and other copyrightable works created by Deep Web Technologies and/or which uniquely identify Deep Web Technologies reside exclusively with us.

  1. Ownership. You and Deep Web Technologies expressly agree that all Work Product shall remain the sole and exclusive property of Deep Web Technologies, and Deep Web Technologies herein agrees to provide you with a non-exclusive, non-transferable license to use Work Product for as long as you remain a client in good standing.
  2. Company Supplied Material. Nothing in these Terms of Service shall be construed to convey rights or title to Deep Web Technologies of materials that are supplied by, or created by, you. You shall maintain all rights in your trademarks, graphics, content and derivative works.
  3. Third-Party Content. You agree to honor and abide by the licensing terms, and intellectual property, of any and all publishers of content you access from our Services.
  4. Program Functionality. Deep Web Technologies has expended considerable time and effort creating its Work Product. Deep Web Technologies will make this functionality available to you for as long as you remain a client in good standing, and we exclusively reserve and retain all rights and title to Work Product. Deep Web Technologies may remove this functionality from your website upon termination of Services or if you fail to remain a client in good standing, without notice and without recourse.
  5. Independent Contractor Relationship. Deep Web Technologies is an independent contractor for the purposes of US Copyright Law.

Confidentiality

  1. Defined. "Confidential Information" shall mean all information disclosed by either Party to the other Party in oral, written or machine-readable form, which has value because it is not generally known and the owner uses reasonable efforts to protect it and identify it in writing as confidential. Confidential Information also includes any information that has been disclosed by a third-party that is required to be treated as confidential. All Confidential Information shall be marked as such or designated as such in writing within thirty (30) days following disclosure to either Party. Confidential Information does not include any information which: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party's lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party; or (v) is disclosed by operation of law. All Confidential Information shall remain the exclusive property of the discloser or its licensors.
  2. Preserving Confidentiality. Each Party hereby agrees that it shall, and cause its personnel to, not use any Confidential Information received from the other Party other than as expressly permitted under these Terms of Service or expressly authorized in writing by the other Party. Each Party shall use the same degree of care to protect the other Party's Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither Party shall disclose the other Party's Confidential Information to any person or entity other than its officers, employees and independent contractors who are directly involved in performing the Services and have a specific need to know such information in order to effect the intent of these Terms of Service and who have entered into written confidentiality agreements with that Party consistent with and no less restrictive than this section.
  3. Injunctive Relief. You acknowledge that any breach of the provisions of Confidentiality may cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, you agree that Deep Web Technologies will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief to enjoin any breach or violation of this section.

Indemnity, Warranty and Liability

  1. Indemnity for Client Transactions. You shall, at your expense, defend and fully indemnify and hold us harmless against any and all claims or harms resulting from your use of our Services, including but not limited to allegations of fraud, misrepresentation, non-performance or non-delivery; and any other manner or means of harm, expense, penalty, tax, or punitive or compensatory measure resulting from the transactions between you and your clients, regardless of (1) whether or not Deep Web Technologies had knowledge of, or should have known, of the claim or harm; (2) whether Deep Web Technologies had been notified of the claim or harm; (3) whether Deep Web Technologies could have taken action to mitigate the claim or harm; or (4) whether Deep Web Technologies contributed or factored in the claim or harm.
  2. Indemnity for Infringing Work Product. Each Party shall, at its expense, defend and indemnify the other Party against a claim that any information, design, specification, instruction, software, data or other material furnished to the other Party that infringes a United States copyright or patent and will pay all losses, liabilities, damages, claims and related expenses (including attorney fees) either awarded by court or agreed to in an out-of-court settlement. Notwithstanding the above, Deep Web Technologies shall have no liability hereunder for any claim of infringement based on (i) modifications, adaptations or changes to any Work Product not made by Deep Web Technologies, (ii) the combination or use of any Work Product with any materials not furnished by Deep Web Technologies, if such infringement would have been avoided by use of the Work Product alone, or (iii) the use or incorporation of any materials supplied to Deep Web Technologies by you. In the event that any portion of the Work Product is held to, or Deep Web Technologies believes is likely to be held to, infringe the intellectual property rights of a third party, Deep Web Technologies shall have the right at its sole option and expense to (i) substitute or modify the Work Product so that it is non-infringing, (ii) obtain for the Company a license to continue using the Work Product, or (iii) require the return, or discontinued use, of the infringing Work Product. If such return materially affects your ability to conduct its business, then you may elect to terminate Services. This section sets forth your sole and exclusive remedy for intellectual property infringement by Deep Web Technologies.
  3. Indemnification Procedures. If either Party becomes aware of a claim which may require indemnification, the indemnified Party will promptly notify the other Party in writing of the claim and will allow the other Party to assume full control of the defense and settlement of the claim. The indemnified Party will provide the other Party with the assistance and information necessary to defend and settle the claim.
  4. Warranty. Each Party represents and warrants to the other Party that it has the full power, right and authority to enter into and perform a relationship with the other Party. Deep Web Technologies further represents and warrants that Services will be performed in a professional manner, consistent with generally accepted industry standards. For any breach of such warranty, your exclusive remedy and Deep Web Technologies's entire liability shall be the re-performance of the Services. You must request such remedy from Deep Web Technologies in writing not more than fifteen (15) business days following the completion of the Services. You warrant that you own or have the right to provide to Deep Web Technologies any Confidential Information. EXCEPT AS SET FORTH IN THIS SECTION, Deep Web Technologies MAKES NO WARRANTY, EXPRESS OR IMPLIED IN CONNECTION WITH THE SERVICES AND WORK PRODUCT, INCLUDING THE RESULTS AND PERFORMANCE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR LEGAL COMPLIANCE.
  5. Limitation of Liability. THE MAXIMUM LIABILITY OF Deep Web Technologies TO YOU FOR DAMAGES RELATING TO Deep Web Technologies'S FAILURE TO PERFORM SERVICES HEREUNDER SHALL BE LIMITED TO REIMBURSEMENT OF ANY FEES PAID BY COMPANY TO Deep Web Technologies. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY OF Deep Web Technologies TO YOU FOR DAMAGES FOR ANY AND ALL OTHER CAUSES WHATSOEVER, AND COMPANY'S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL FEES PAID BY YOU TO Deep Web Technologies. IN NO EVENT SHALL Deep Web Technologies BE LIABLE FOR (i) ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE OR THE SERVICES PROVIDED HEREUNDER, EVEN IF Deep Web Technologies HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OTHERWISE FOR ANY SUCH CLAIM, OR (ii) FOR ANY DAMAGES OR COSTS ARISING FROM ANY THIRD PARTY'S ACTIONS, FAILURE TO ACT, OR DELAY IN PERFORMING ANY OBLIGATION WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Deep Web Technologies SHALL NOT BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE.

Miscellaneous

  1. Relationship between the Parties. Neither you nor Deep Web Technologies is a legal representative, agent, or a partner of the other. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each Party will maintain appropriate worker's compensation for its employees as well as general liability insurance.
  2. Severability. In the event any provision of these Terms of Service is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
  3. Governing Law. This Agreement shall be construed in accordance with the laws of the State of New Mexico, excluding conflict of laws provisions, applicable to agreements made and fully performed therein.
  4. Waiver. The failure by either Party to enforce, at any time, any of the provisions of this Agreement, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this Agreement or any part thereof, or the right of either Party thereafter to enforce each and every such provision.
  5. Publicity. You agree that Deep Web Technologies shall be allowed to use your name on its list of clients, and disclose the same to its present and potential clients.
  6. Notice. All notices, requests, consents and other communications required or permitted under these Terms of Service shall be in writing and shall be sent by email, or registered or certified mail, postage prepaid or transmitted by telegram or telefax if confirmed by such mailing, to you or Deep Web Technologies. Either Party may change its address by written notice to the other.
  7. Force Majeure. Either Party will be excused from any delay or failure in performance hereunder, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, disruptions of Internet service, and governmental requirements. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such Party will give notice of such force majeure event to the other Party as soon as reasonably possible.