TERMS OF SERVICE AND ACCEPTABLE USAGE POLICY
Your agreement to be bound by these terms is acknowledged by your use of KreativeBirds Services, Support Services and/or any software made available to you by the KreativeBirds. Agreeing to KreativeBirds.com Acceptable use Policy and Terms of Conditions is mandatory for signing up or using our services. Please make sure you read everything. If you have any questions Contact Us.
1.) Account Setup / Email on file
We will setup your account after we have received payment and we and/or our payment partner(s) have screened the order(s) in case of fraud. It is your responsibility to provide us with an email address which is not @ the domain(s) you are signing up under. If there is ever an abuse issue or we need to contact you, the primary email address on file will be used for this purpose. It is your responsibility to ensure the email address on file is current or up to date at all times. If you have a domain name registered with KreativeBirds, it is your responsibility to ensure that the contact information for your domain account and your actual domain name(s) is correct and up-to-date. KreativeBirds is not responsible for a lapsed registration due to outdated contact information being associated with the domain. If you need to verify or change this information, you should contact our sales team via email. Providing false contact information of any kind may result in the termination of your account. In dedicated server purchases or high risk transactions, it will be necessary to provide government issued identification and possibly a scan of the credit card used for the purchase. If you fail to meet these requirements, the order may be considered fraudulent in nature and be denied.
Our transfer team will make every effort to help you move your site to us. However, transfers are provided as a courtesy service, and we can not make guarantees regarding the availability, possibility, or time required to complete an account transfer. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult if not impossible to migrate some or all account data. We will try our best, but in some cases we may be unable to assist you in a transfer of data from an old host.
The free transfer services are available for 30 days from your sign up date. Transfers outside of the 30 day free period will incur a charge; please contact a member of the billing department with specific details to receive a price quote.
All services provided by KreativeBirds may only be used for lawful purposes. The laws of United Kingdom and the United States of America apply.
The customer agrees to indemnify and hold harmless KreativeBirds from any claims resulting from the use of our services.
Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of another copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting. If you believe that your copyright or trademark is being infringed upon, please email support@KreativeBirds.com with the information required. A list of required information may be found here. If the request is of a licensing issue, we may require further documentation.
Using a shared account as a backup/storage device is not permitted, with the exception of one cPanel backup of the same account. Please do not take backups of your backups.
Examples of unacceptable material on all hosting servers include:
- IRC Scripts/Bots
- Proxy Scripts/Anonymizers
- Pirated Software/Warez
- Image Hosting Scripts (similar to Photobucket or Tinypic)
- AutoSurf/PTC/PTS/PPC sites
- IP Scanners
- Bruteforce Programs/Scripts/Applications
- Mail Bombers/Spam Scripts
- Banner-Ad services (commercial banner ad rotation)
- File Dump/Mirror Scripts (similar to rapidshare)
- Commercial Audio Streaming (more than one or two streams)
- Escrow/Bank Debentures
- High-Yield Interest Programs (HYIP) or Related Sites
- Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme)
- Sale of any controlled substance without prior proof of appropriate permit(s)
- Prime Banks Programs
- Lottery/Gambling Sites
- Hateful/Racist/Harassment oriented sites
- Hacker focused sites/archives/programs
- Sites promoting illegal activities
- Forums and/or websites that distribute or link to warez/pirated/illegal content
- Bank Debentures/Bank Debenture Trading Programs
- Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com)
- Mailer Pro
- Broadcast or Streaming of Live Sporting Events (UFC, NASCAR, FIFA, NFL, MLB, NBA, WWE, WWF, etc)
KreativeBirds services, including all related equipment, networks and network devices are provided only for authorized customer use. KreativeBirds systems may be monitored for all lawful purposes, including to ensure that use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of KreativeBirds system(s) constitutes consent to monitoring for these purposes.
Any account found connecting to a third party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of your direct control must be with expressed written consent from the third party. KreativeBirds may, at its discretion, request and require documentation to prove access to a third party network or system is authorized.
KreativeBirds.com does NOT provide unlimited space for online storage, backups, or archiving of electronic files, documents, log files, etc., and any such prohibited use of the Services will result in the termination of customer account, with or without notice.
We reserve the right to refuse service to anyone. Any material that, in our judgment, is obscene, threatening, illegal, or violates our terms of service in any manner may be removed from our servers (or otherwise disabled), with or without notice.
Failure to respond to email from our abuse department within 48 hours may result in the suspension or termination of your services. All abuse issues must be dealt with via trouble-ticket/email and will have a response within 48 hours.
If in doubt regarding the acceptability of your site or service, please contact us at abuse@KreativeBirds.com and we will be happy to assist you.
Potential harm to minors is strictly forbidden, including but not limited to child pornography or content perceived to be child pornography (Lolita):
Any site found to host child pornography or linking to child pornography will be suspended immediately without notice and reported to local authorities and FBI.
Adult or any kind of hardcore porn is not allowed on our servers.
Resellers: we will suspend the site in question and will notify you so you may terminate the account. We will further monitor your activity; more than one infraction of this type may result in the immediate termination of your account.
Direct customers: Your services will be terminated with or without notice.
Violations will be reported to the appropriate law enforcement agency.
It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of installation method. When at all possible, set permissions on most directories to 755 or as restrictive as possible. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as user name and password. It is required that you use a secure password. If a weak password is used, your account may be suspended until you agree to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and your password is found to be weak, we will notify you and allow time for you to change/update your password.
3.) Zero Tolerance Spam Policy
We take a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. “Safe lists” and purchased lists will be treated as spam. Any user who sends out spam will have their account terminated with or without notice.
Sites advertised via SPAM (Spamvertised) may not be hosted on our servers. This provision includes, but is not limited to SPAM sent via fax, email, instant messaging, or usenet/newsgroups. No organization or entity listed in the ROKSO may be hosted on our servers. Any account which results in our IP space being blacklisted will be immediately suspended and/or terminated.
Each Customer’s account is allowed to send a maximum of 200 emails per hour. Any account that exceeds this limitation is endangering the overall server performance.
KreativeBirds reserves the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with its established policies, or to make any such modifications in an emergency at its sole discretion.
KreativeBirds reserves the right to charge the holder of the account used to send any unsolicited e-mail a clean-up fee or any charges incurred for blacklist removal. This cost of the clean-up fee is entirely at the discretion of KreativeBirds.
4.) Payment Information
You agree to supply appropriate payment for the services received from KreativeBirds, in advance of the time period during which such services are provided. You agree that until and unless you notify KreativeBirds of your desire to cancel any or all services received, those services will be billed on a recurring basis. This includes when accounts are suspended. When an account’s invoices are paid outside of the 7 day grace period, invoices will not be automatically generated. However, after the customer notifies KreativeBirds of his or intent to resume service, invoices will be manually generated and payment expected for the time the account was suspended.
Cancellations must be done in writing via the cancellation form provided. Once we receive your cancellation and have confirmed all necessary information with you via e-mail, we will inform you in writing (typically email) that your account has been canceled. Your cancellation confirmation will contain a ticket/tracking number in the subject for your reference, and for verification purposes. An employee will confirm your request (and process your cancellation) shortly thereafter. If you do not hear back from us, or do not receive the automatic confirmation email within a few minutes after submitting your cancellation, please contact us immediately. We require that cancellations of service are done through the online form to (a) confirm your identity, (b) confirm in writing you are prepared for all files/emails to be removed, and (c) document the request. This process reduces the likelihood of mistakes, fraudulent/malicious requests, and ensures you are aware that the files, emails, and account may be removed immediately after a cancellation request is processed.
As a client of KreativeBirds, it is your responsibility to ensure that your payment information is up to date, and that all invoices are paid on time. You agree that until and unless you notify KreativeBirds of your desire to cancel any or all services received (by the proper means listed in the appropriate section of the Terms of Service), those services will be billed on a recurring basis, unless otherwise stated in writing by KreativeBirds. KreativeBirds reserves the right to bill your credit card or billing information on file with us. KreativeBirds provides a 10 day grace period from the time the invoice is generated and when it must be paid. Any invoice that is outstanding for 10 days and not paid will result in a 10% late fee and/or an account suspension until account balance has been paid in full. The 10% late fee is applied in addition to whatever else is owed to KreativeBirds for services rendered. Access to the account will not be restored until payment has been received.
It is the customer’s responsibility to notify our sales team via email at billing@KreativeBirds.com after paying for a domain renewal and to ensure the email is received and acted upon. Domain renewal notices and invoices are provided as a courtesy reminder and KreativeBirds cannot be held responsible for failure to renew a domain or failure to notify a customer about a domain’s renewal.
Invoices that have been paid more than once with multiple Paypal Subscriptions can only be added as credit towards the account and cannot be refunded via Paypal. If you require assistance with this provision, please contact billing@KreativeBirds.com
KreativeBirds reserves the right to change the monthly payment amount and any other charges at anytime.
5.) Backups and Data Loss
Your use of this service is at your sole risk. Our backup service is ran on Saturday of each week, overwrites any of our previous backups made, and only one week of backups are kept. This service is provided to you as a courtesy. KreativeBirds is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on KreativeBirds servers. Backups will not be provided for accounts that have been suspended or terminated for any reason unless otherwise agreed to in writing by KreativeBirds. KreativeBirds delete hosting accounts that are unpaid for 30 days.
6.) Cancellations and Refunds
KreativeBirds reserves the right to cancel, suspend, or otherwise restrict access to the account at any time with or without notice.
Any abuse of our staff in any medium or format will result in the suspension or termination of your services.
Customers may cancel at any time via a cancellation link in your Billing Portal. KreativeBirds gives you an unconditional 30 day money back guarantee on shared hosting for any customer who paid the first invoice with a credit card or with Paypal. Payments older than 60 days may require a refund via PayPal or mailed check due to our merchant account policies and procedures.
Domain names must be refunded in 3 days in order to recieve a refund.
For hosted email if there is a mailbox that exists at the beginning of the month and end then you will be charged for 1 month of usage for that user. There aren’t any refunds if it exists in both snapshots
Only first-time accounts are eligible for a refund. For example, if you’ve had an account with us before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with us.
Violations of the Terms of Service will waive the refund policy.
7a.) Resource Usage
User may not:
- Use 25% or more of system resources for longer then 30 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
- Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons, such as IRCD.
- Run any type of web spider or indexer (including Google Cash / AdSpy) on shared servers.
- Run any software that interfaces with an IRC (Internet Relay Chat) network.
- Run any bit torrent application, tracker, or client. You may link to legal torrents off-site, but may not host or store them on our shared servers.
- Participate in any file-sharing/peer-to-peer activities
- Run any gaming servers such as counter-strike, half-life, battlefield1942, etc
- Run cron entries with intervals of less than 15 minutes.
- Run any MySQL queries longer than 15 seconds. MySQL tables should be indexed appropriately.
- When using PHP include functions for including a local file, include the local file rather than the URL. Instead of include(“http://yourdomain.com/include.php”) use include(“include.php”)
- To help reduce usage, do not force html to handle server-side code (like php and shtml).
- Only use https protocol when necessary; encrypting and decrypting communications is noticeably more CPU-intensive than unencrypted communications.
The use of more than 250,000 inodes on any shared account may potentially result in a warning first, and if no action is taken future suspension. Accounts found to be exceeding the 100,000 inode limit will automatically be removed from our backup system to avoid over-usage, however databases will still be backed up. Every file (a webpage, image file, email, etc) on your account uses up 1 inode.
Sites that slightly exceed our inode limits are unlikely to be suspended; however, accounts that constantly create and delete large numbers of files on a regular basis, have hundreds of thousands of files, or cause file system damage may be flagged for review and/or suspension. The primary cause of excessive inodes seems to be due to users leaving their catchall address enabled, but never checking their primary account mailbox. Over time, tens of thousands of messages (or more) build up, eventually pushing the account past our inode limit. To disable your default mailbox, login to cPanel and choose “Mail”, then “Default Address”, “Set Default Address”, and then type in: :fail: No such user here.
7c.) Backup Limit
Any shared account using more than 5 gigs of disk space will be removed from our weekly backup with the exception of Databases continuing to be backed up. All data will continue to be mirrored to a secondary drive which helps protect against data loss in the event of a drive failure.
8.) Bandwidth Usage
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month.
9a.) Money back Guarantee
We reserve the right to refund a prorated amount or no refund at all.
Each of KreativeBirds’s shared servers carry a 30 day unconditional money back guarantee on them. If you are not completely satisfied with our services within the first 30 days of your service, you will be given a full refund of the contract amount. Remember, this is only for monthly shared, administrative fees, install fees for custom software, and domain name purchases.
KreativeBirds will not activate new orders or activate new packages for customers who have an outstanding balance with KreativeBirds. For a new order to be setup or a new package to be activated, you must have a balance of $0.00, unless otherwise stated by KreativeBirds in writing.
9b.) Uptime Guarantee
If your shared server has a physical downtime that is not within the 99.9% uptime you may receive one month of credit on your account. Approval of the credit is at the discretion of KreativeBirds dependent upon justification provided. Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor’s network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services. To request a credit, please contact billing@KreativeBirds.com with justification. All requests must be made in writing via email. Uptime guarantees only apply to shared solutions.
10.) Price Change
The amount you pay for hosting will never increase from the date of purchase. We reserve the right to change prices listed on KreativeBirds.com, and the right to increase the amount of resources given to plans at any time.
Discounts and coupon codes are reserved for first-time accounts *or first-time customers* only and may not be used towards the purchase of a domain registration unless otherwise specified. If you have signed up using a particular domain, you may not resign up for that domain using another coupon at a later date. Any account found in violation of these policies will be reviewed by our sales department and the appropriate invoices will be added to the account. Coupon abuse will not be tolerated and may result in the suspension or termination of the account. Coupons or discounts are only valid towards the initial purchase, and do not affect the renewal or recurring price unless specified. All hosting services will renew at the regular renewal rate.
12a.) Maintenance and Redesign Services
This Agreement shall be effective as of the time frame Customer signs up for Maintenance Services. This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (15) days of receipt of the notice. This Agreement may be terminated by KreativeBirds (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with KreativeBirds or hinders KreativeBirds’s ability to perform the Maintenance Services hereunder.
12b.) Maintenance Services
KreativeBirds agrees to provide Customer with Maintenance Services as described in this Agreement. Maintenance Services include:
- Core updates weekly and supply our WordPress built websites with premium security running on the Divi theme by Elegant Themes.
- One to Four pages of content or 10 product update per month after billing (Manage Care Plan Specific). This means text only, for additional updates a client must request additional services via a service ticket.Updates to text, images, and other minor changes to Customer’s website pages
- Core updates to Customer’s content management system, including plugins and themes.
- Scans for malware, spam and malicious code on a Customer’s website.
- Recovery of files from backups, if available.
12c.) Fees; Limitations on Refunds and Cancellation Fees
Customer agrees to pay KreativeBirds any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Maintenance Services. THE CUSTOMER FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CUSTOMER, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO KREATIVEBIRDS AS PROVIDED IN THE AGREEMENT. KREATIVEBIRDS IS HEREBY AUTHORIZED TO CHARGE CUSTOMER’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO KREATIVEBIRDS.
12d.) Customer Responsibilities
For the purposes of providing these services, Customer agrees:
- To provide KreativeBirds with access to its web sites for creating new pages, and making changes for the purpose of providing Maintenance Services.
- To properly convey to KreativeBirds the information that needs to be changed or added.
12e.) Customer Acknowledgements
Customer understands, acknowledges and agrees that:
- Only two (2) hour of time for Maintenance Services is allowed per month starting with our lowest , billed in fifteen (15) minute increments. (Managed Care Basic – 2hrs, Managed Care Advance – 5hrs and Managed Care Redesign – 8hrs)
- Any work that exceeds two (2) hour will be billed on an hourly basis of $25 per hour.
- Web page updates exclude, but are not limited to, image editing, graphic design, graphic editing, database changes, programming, and search engine optimization.
- KreativeBirds has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
- Additional fees could be charged if the information provided has to be typed and exceeds the hours of time allotted.
- If changes are made by KreativeBirds according to Customer’s information, and the changes are not correct, additional time to remedy the changes fall under the one (1) hour of time allotted.
- Unused time is not accumulative. Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
- KreativeBirds is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
- KreativeBirds is not responsible for changes made to Customer’s web site(s) by other parties.
- KreativeBirds is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
- KreativeBirds will not repair Customer’s website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Recovery or repair of Customer’s website is not guaranteed.
- Availability of backups is not guaranteed.
12f.) Additional Services
Additional services not listed herein will be provided for a fee. KreativeBirds is not responsible for developing new content or writing new copy for Customer. Customer will be charged an additional fee for writing content, based on the hourly rate of $25.00 per hour.
12g.) Disclaimer of All Other Warranties
KREATIVEBIRDS DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, KREATIVEBIRDS PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
12h.) Limited Liability
IN NO EVENT SHALL KREATIVEBIRDS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. KREATIVEBIRDS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
12i.) Customer Representations
Customer makes the following representations and warranties for the benefit of KreativeBirds:
- Customer represents to KreativeBirds and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to KreativeBirds are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend KreativeBirds and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
- Customer guarantees to KreativeBirds and unconditionally guarantees that Customer’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
- Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to KreativeBirds for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend KreativeBirds and its subcontractors from any liability or suit arising from the use of such elements.
- From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend KreativeBirds and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, KreativeBirds and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
12k.) Agreement Binding on Successors
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of KreativeBirds. KreativeBirds reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
12o.) No Inference Against Author
No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
Customer and KreativeBirds agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Coffee County, Alabama and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years’ experience in the practice of law and at least five (5) years’ experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Alabama sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Alabama or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
Customer agrees that it shall defend, indemnify, save and hold KreativeBirds harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against KreativeBirds, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless KreativeBirds against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with KreativeBirds; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customers from KreativeBirds’s server.
13b.) Arbitration By using any KreativeBirds services, you agree to submit to binding arbitration.
If any disputes or claims arise against KreativeBirds or its subsidiaries, such disputes will be handled by an arbitrator of KreativeBirds’s choice. An arbitrator from the American Arbitration Association or the National Arbitration Forum will be selected in the state of Alabama. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. All decisions rendered by the arbitrator will be binding and final. The arbitrator’s award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. You are also responsible for any and all costs related to such arbitration.
In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The parties agree to arbitrate all disputes and claims in regards to these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions.
KreativeBirds shall not be responsible for any damages your business may suffer. KreativeBirds makes no warranties of any kind, expressed or implied for services we provide. KreativeBirds disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by KreativeBirds and its employees.
15.) Disclosure to law enforcement
KreativeBirds may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies. We will cooperate fully with law enforcement agencies.
16a.) Applicable Services and Web Design Services
(No) Refunds: No refunds on custom child themes, web design services, or hourly freelance work unless it is warranted by KreativeBirds or DenverDoran.com.
Custom Child Theme Limitations and Usage: Custom child themes created by KreativeBirds or DenverDoran.com can be used for web development of only one website. They CANNOT be redistributed in their original form (or reasonably true to the original form) for free or for profit by anyone other than KreativeBirds and DenverDoran.com. For instance you cannot purchase a copy of any of my child themes and then reupload them to your website/store/etsy/web app/anywhere on or off the interwebs to display as a finished product or template you are selling.
16b.) Your Account
If you use this site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that KreativeBirds is not responsible for third party access to your account that results from theft or misappropriation of your account. KreativeBirds and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion. KreativeBirds does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use KreativeBirds only with permission of a parent or guardian.
16c.) Links to Third Party Sites/Third Party Services
KreativeBirds may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of KreativeBirds and KreativeBirds is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. KreativeBirds is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by KreativeBirds of the site or any association with its operators. Certain services made available via KreativeBirds are delivered by third party sites and organizations. By using any product, service or functionality originating from the KreativeBirds domain, you hereby acknowledge and consent that KreativeBirds may share such information and data with any third party with whom KreativeBirds has a contractual relationship to provide the requested product, service or functionality on behalf of KreativeBirds users and customers.
16d.) No Unlawful or Prohibited Use/Intellectual Property
16d.) International Users
This website and it’s content are controlled, operated and administered by KreativeBirds from within the USA. If you access our website from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the KreativeBirds content accessed through KreativeBirds in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
You agree to indemnify, defend and hold harmless KreativeBirds, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney’s fees) relating to or arising out of your use of or inability to use the Site or services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. KreativeBirds reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with KreativeBirds in asserting any available defenses.
16f.) Class Action Waiver
Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Employer agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16e.) Liability Disclaimer
17.) Changes to the TOS
Upon payment each Party acknowledges that they have read and understand this Agreement and agrees to be bound by its terms and conditions. KreativeBirds reserves the right to revise its policies at any time without notice. The most current version of the Terms will supersede all previous versions. KreativeBirds encourages you to periodically review the Terms to stay informed of our updates.
Effective as of November 10, 2017