Terms of Service
Effective Date: September 7th, 2023
These Terms of Service (“Agreement”) are an agreement between you and Agital Holdings, LLC (“Agital”, “we”, or “us”) and govern your use of Agital’s products and related applications, inclusive but not exclusive to Agital.com and Agital ImpactTM. Please read them carefully.
Your use of any Agital, or Agital affiliate, website(s), including but not limited to www.agital.com, (“Websites”) products, software, Internet-based services, data, content, information, tools, functionality, updates, related materials, and/or installation service (referred to collectively as the “Services” in this document, but excluding any services provided to you by Agital under a separate written agreement) is subject to the terms of this Agreement. Certain services may be accompanied by other, additional terms. If so, those terms apply.
By checking “I Agree” on a website or in a Statement of Work, or by actually using the Services and related software provided by Agital, you accept these terms. If you do not accept them, do not use the Services.
As described below, using some features also operates as your consent to the transmission of certain standard computer information for Internet-based services.
This Agreement is subject to change. If this Agreement changes, we will let you know by posting the revised Agreement on the Service and/or otherwise making you aware of the changes. Your continued use of the Service following our notice of changes to this Agreement (or other method of legal acceptance) means you accept such changes. Please refer to the “Effective Date” date above to see when this Agreement was last updated.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, we hereby grant you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to access, receive, and use the Service. No rights not explicitly listed are granted.
The following additional terms are incorporated into this Agreement as if fully set forth herein:
a. Consent for Internet-Based Services. The Services connect to Agital and/or its service providers’ computer systems over the Internet. To use the Services, it may be necessary for your computer systems to send information, including Internet Protocol addresses and other information about your computer systems, to Agital and/or its service providers. By using the Services, you consent to the transmission of information between your computer systems and the computer systems of Agital and its service providers.
b. Use of Information. Agital may use the information obtained from you to improve its Services. Agital may also share this information with third parties to improve its Services.
d. For the purposes of this Agreement, if you are an employee, agent, or other representative of a company or an organization, “you”, “your”, and similar terms shall refer to such entity and you represent and warrant that you have the ability to legally bind such entity to the terms of this Agreement.
2.1 Fees for Services. Services are billed and charged to your payment method (“Payment Method”), including without limitation your bank account, credit card, debit card, or other method of payment, monthly based on the pricing posted to our Website, or a separate order form you sign that indicates a flat monthly fee. Legacy users of Services, who have not yet upgraded to the latest version of the Service, will continue to be billed and charged monthly based on either usage (number of times the site accesses Agital servers) or results (a percent of sales attributed to the service). The Fee Schedule applicable to legacy users for Services who have not upgraded to the latest version of the Service is posted in the Pricing section of its respective website, and may be updated from time to time.
Sections 2.1.1 – 2.2 apply only to legacy users who have not upgraded to the latest version of the service
2.1.1 Usage-based services. Fees are determined by the total number of “feature-views” you accumulate in a given month. For purposes of this Agreement, every time a usage-based service’s script is accessed from an Agital server, that will count as one feature-view. The charge you incur each month will be computed from the previous month’s feature-views at the then published price level.
2.1.2 Results-based services. Fees are based on revenue information provided by your shopping carts coupon manager or other revenue tracking feature appropriate to your platform. Fees are computed based on these results. Any adjustments necessary due to order cancellations and/or returns not included in the reported amounts will require the store owner to notify Agital within 45 days of the end of the associated billing period by providing details on the orders that should be excluded. Agital will compute the fee adjustments and apply them as a credit on the next bill. No refunds will be issued.
2.1.3 Continued Access. Results-based services require that Agital is provided continued access to your store and that any revenue tracking specified is implemented. Removing store access and/or revenue tracking will result in cancellation of the service and a final charge to your Payment Method equal to the previous month’s fee or $75 for each month you have used the service and we do not have the ability to access the revenue information, whichever is greater. Agital will reconcile fees on a monthly basis and you will typically be charged in full within 10 days after the month close. The actual fees charged will be based on the currently published price schedule at that time.
2.1.4 Code Removal. All Services can be temporarily or permanently disabled by the client at any time by using the administrative software. If the client wants the installed code to be removed from their store a $300 fee will be charged.
2.1.5 Free Trial Periods. For any Service that includes a free trial, once you have completed your free trial, you will be automatically subject to fees in accordance with the fees posted on the pricing.
2.2 Pricing page. You are responsible for reviewing the pricing page from time to time and remaining aware of the fees charged by Agital. The pricing page is subject to change at any time in Agital’s sole discretion. Agital will use good faith efforts to notify you via email prior to the effectiveness of any change to pricing.
2.3 Recurring Payment Terms
By accepting these terms and conditions, you authorize Agital to charge the Payment Method that you have specified below each month for the amount of fees due for the Agital Services.
You agree that the Payment Method you provide for automatic monthly payments to Agital is, and will continue to be, an account that you own, and that you will maintain sufficient availability to pay your monthly bill to Agital.
The automatic monthly charge to your Payment Method will occur on or after the first day of each month. By entering into this Agreement
These terms and conditions will constitute your copy of your recurring payment authorization to Agital. Please print and retain a copy of this recurring payment authorization for your records.
You can cancel your recurring payment authorization by canceling your service(s) in accordance with the terms of the Service order form you sign, and by emailing [email protected][MJ1] . If you cancel your recurring payment authorization without providing an alternative Payment Method, you will be deemed to have terminated this agreement. Cancelling your recurring payment authorization will not relieve you of any liability for amounts due to Agital under the terms of this Agreement.
Some parts of the Service may not be available to the general public, and we may impose additional eligibility rules from time to time on those portions of the Service. We reserve the right to amend or eliminate these eligibility requirements at any time.
By using the Service, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement, and that you commit to abide by all the terms and conditions herein.
If you give feedback about the Services to Agital, you agree that Agital shall have, without charge, the right to use, share and commercialize your feedback in any way and for any purpose. You also give to third parties, without charge, any patent rights needed for their products, technologies and services to use or interface with any specific parts of an Agital Service that includes the feedback. You will not give feedback that is subject to a license that requires Agital to license its software or documentation to third parties because we include your feedback in them. These rights survive this agreement.
Your use of the Service is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You represent and warrant:
You agree that you will not violate any applicable law or regulation in connection with your use of the Service or any Content (as defined below) contained therein.
You are solely responsible for any and all of the actions you take, or decisions that you make, relating to or arising from your use of the Service.
You agree not to distribute, upload, make available or otherwise publish through the Service any suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submission”) or any graphics, text, information, data, designs, instructions and/or schematics, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (collectively “Content”) that:
You must keep your username and password and any other information needed to login to the Service, if applicable, confidential and secure. We are not responsible for any unauthorized access to your Account or profile by others.[MJ2]
You are not licensed to access any portion of the Service that is not public, and you may not attempt to override any security measures in place on the Service.
We reserve the right, in our sole discretion, to protect our users from violators and violations of these rules of conduct, including but not limited to restricting your use of the Services, restricting your ability to upload Submissions or Content, immediately terminating your use of the Service, or terminating your use of the Service by blocking certain IP addresses from accessing the Service. Notwithstanding the foregoing, our unlimited right to terminate your access to the Service shall not be limited to violations of these rules of conduct.
The Services and the software used to provide them are licensed (as described above), not sold. This Agreement only gives you some rights to use the Services and related software. Agital reserves all other rights and you may only use the Services as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the Services and related software that only allow you to use it in certain ways. You may not
We reserve the right to deny all or some portion of the Service to any user, in our sole discretion, at any time. Without limiting the foregoing or assuming additional legal obligations, we have a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law. All grants of any rights from you to us related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
The Service may contain links to third-party websites, services, and materials. Such links are provided for informational purposes only, and we do not endorse any third-party website or services through the provision of such a link, nor do we promote or endorse any App Store.
The Service may contain articles, text, imagery, video, audio, data, information and other similar materials originating from third parties, including users other than you. We do not endorse any third party, including the App Stores, or third-party content that may appear on the Service or that may be derived from content that may appear on the Service, even if such content was summarized, collected, reformatted or otherwise edited by us.
EXCEPT WHERE PROHIBITED BY LAW, THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” YOU BEAR ALL OF THE RISK OF USING THEM. WE, ALONG WITH OUR PARENT ENTITIES, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THAT YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT YOUR USE OF THE SERVICE WILL UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERRO, THAT ANY INFORMATION OBTAINED BY YOU AS A RESULD OF YOUR USE OF THE SERVICES WIL BE ACCURATE OR RELIABLE, THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, OR ANY OTHER WARRANTIES OF ANY KIND IN AND TO THE SERVICE.
NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
FURTHER, OPINIONS, ADVICE, STATEMENTS, SUBMISSIONS, CONTENT, OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICE, BUT NOT DIRECTLY PROVIDED BY US, ARE THOSE OF THEIR RESPECTIVE AUTHORS, AND SHOULD NOT BE RELIED UPON. SUCH AUTHORS ARE SOLELY RESPONSIBLE FOR SUCH CONTENT.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, LICENSORS OR BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICE, OR THE ACTIONS YOU TAKE BASED ON THE SERVICE OR THE CONTENT THEREIN, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF WE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then you agree that neither we nor any of our parent entities, subsidiaries, affiliated companies, employees, members, shareholders, or directors shall be liable for (1) any damages in excess of $100.00 or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Service. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
You agree to defend, indemnify, and hold us and our suppliers, subsidiaries, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, fines issued by any regulatory or statutory authority, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit, post to or transmit through the Service (b) your use of the Service or any Content therein, (c) your violation of the Agreement, including, but not limited to breach of your obligations under clause 1(c) above, and (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of the Service.
You agree that any claim or dispute arising out of or relating in any way to the Service will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the Commonwealth of Massachusetts shall govern this Agreement, and shall be used in any arbitration proceeding.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. Any arbitration between you and Agital shall have one (1) arbitrator.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: Agital Holdings, LLC, 2705 Dougherty Ferry Rd. Suite 202 St. Louis, MO 63122, USA.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect, shall be conducted in English, and shall be located in Boston, Massachusetts. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrators, will be strictly confidential for the benefit of all parties.
You and Agital agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and Agital agree that each have waived any right to a jury trial.
Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights, or to collect unpaid amounts.
To the extent arbitrations does not apply, you agree that any dispute arising out of or relating to the Service, or to us, may only be brought by you in a state or federal court located in Boston, Massachusetts. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN MASSACHUSETTS.
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.
Copyright © Agital Holdings, LLC. All rights reserved. The Service is the property of Agital, and is protected by United States and international copyright, trademark, and other applicable laws. This includes the content, appearance, and design of the Service, as well as the trademarks, product names, graphics, logos, service names, slogans, colors, and designs.
If you believe in good faith that any material posted on our Services infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
2705 Dougherty Ferry Rd. Suite 202
St. Louis, MO 63122
Email: [email protected]
Phone number: 339-330-8884
Complaint Policy (Including Trademark and Privacy)
If you believe in good faith that any material posted on the Service infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to [email protected] containing the following information:
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.
All notices given by you or required under this Agreement shall be in writing and addressed to: Agital Holdings, LLC, 2705 Dougherty Ferry Rd, Suite 202, St. Louis, MO 63122, USA, or sent via email to [email protected].