The Client and Consultant may disclose confidential information one to the other to facilitate work under this TOS. Such information shall be so identified in writing at the time of its transmittal, and shall be safeguarded and not disclosed to third parties by the receiving party. Confidential information shall not include information that:
- is already known to the party to which it is disclosed;
- is or becomes part of the public domain without breach of this TOS;
- is obtained from third parties, which have no obligations to keep confidential to the parties to this TOS.
3.1. Third Party or Client Script Modification
Consultant can take no responsibility for services provided by third parties through us or otherwise, including the web hosting of the Client's Software. Client may desire to independently edit or update his Software, note however, Consultant is not responsible for any damage created by the Client, agent of the Client or any third party.
3.2. Consequential Loss
Under no circumstances will Consultant be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its Software. The Client should ensure that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of Software failure.
Consultant will make reasonable attempts to protect the integrity of the Client's Software. As no software or server is 100% safe from security breach, the Client understands that the Consultant cannot be held accountable for all security breaches should they occur.
3.4. Status and Duration of Offers
Proposals and offers are valid for a period of two weeks from the date issued. Consultant is not bound to honor offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed by both parties. This timetable must be agreed within the two weeks that the offer is valid. If an acceptable timetable has not been approved by both parties within two weeks of the offer being made, the offer is deemed to have expired. Consultant reserves the right to adjust timetable and all project dates accordingly or treat offer as invalid and therefore terminated if Client fails to pay first deposit before the start date specified in offer.
4. INTELLECTUAL PROPERTY
4.1. Offers and Proposals
Offers and proposals made by Consultant to potential clients should be treated as trade secrets and remain the property of Consultant. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from Consultant. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
Once Consultant has received full payment of all outstanding invoices and the Software has been provided to a Client, the Client will be granted a license to use the Software and its contents. The Consultant will provide Client with 1(one) live magento installation license in accordance with Clause 4.3 and unlimited number of subdomain licenses for testing or development purposes only.
Client may request to change the domains for single magento installation license and testing subdomain licenses after the order is placed. All requests to change the licenses must be approved by Consultant. However, Consultant is not obligated to approve these requests and may reject them for any reason.
4.3. Single Magento Installation License (the "License")
- All parts of Consultant's Software are 100% Open Source.
- You have been granted this license explicitly by the copyright holder.
- You are granted one single use of the Software on one live magento installation and unlimited number of testing subdomains.
- You may use the Software for your own purposes or for a client, anyhow, use of the Software is limited to one live magento installation and unlimited number of testing subdomains.
- Use on additional live magento installations, requires you to obtain one License for each live magento installation you wish to use the Software on.
- You must not directly or indirectly license, sub-license, rent, lend, sell, resell, provide for free, reproduce or distribute by any means the Software.
- You will obtain a License which will remain valid until you stop using the Software or until Consultant terminates this License because of your failure to comply with any of its TOS.
The same applies to derivative works based on the Software.
The same applies to works based on reverse-engineered versions of Consultant's Software.
Derivative works based on the Software includes descriptions of the algorithms and methods implemented.
- You must not create derivative works based on the Software.
- You must not reverse-engineer the Software.
- You must not incorporate the Software in any work created for resale.
- You must not use the Software to provide services similar to those provided by the Software.
Any violation of copyright laws may result in severe civil and criminal penalties.
Without prejudice to any other rights, Consultant may terminate this License at any time if you fail to comply with the TOS. In such event, it constitutes a breach of the agreement, and your License to use the Software is revoked and you must destroy all copies of Consultant's Software in your possession. After being notified of termination of your License, if you continue to use Consultant's Software, you hereby agree to accept an injunction to prevent you from its further use and to pay all costs (including but not limited to reasonable attorney fees) to enforce Consultant's revocation of your License and any damages suffered by Consultant because of your misuse of the Software. Consultant is not bound to return you the amount spent for purchase of the Software for the termination of this License.
4.4. Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which Consultant or their suppliers owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from Consultant. Consultant acknowledges the intellectual property rights of the Client. Information passed in written form to Consultant, and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
5. CUSTOMER RATINGS AND REVIEWS
When Client submits content for posting on Consultant's Site, Client permits Consultant to post his submission with his name, city, country and website address. By submitting any content to Consultant, Client represents and warrants that:
- Client is the sole author and owner of the intellectual property rights thereto;
- all "moral rights" that Client may have in such content have been voluntarily waived by Client;
- all content that Client posts is accurate;
- use of the content Client supplies does not violate these TOS and will not cause injury to any person or entity.
Client further agrees and warrants that Client shall not submit any content:
- that is known by Client to be false, inaccurate or misleading;
- that infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- that violates any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
- that is, or may reasonably be considered to be, defamatory, libelous, hateful, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
- for which Client was compensated or granted any consideration by any third party;
- that includes any information that references other websites, addresses, email addresses, contact information or phone numbers.
Client agrees to indemnify and hold Consultant (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers), harmless from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown including reasonable attorneys' fees, arising out of a breach of Client's representations and warranties set forth above, or Client's violation of any law or the rights of a third party.
For any content that Client submit, Client grants Consultant, including its affiliates and subsidiaries, a, perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such content and/or incorporate such content into any form, medium, product or technology throughout the world without compensation to the Client.
All content that Client submits may be used at Consultant's sole discretion. Consultant reserves the right to change, condense or delete any content on Consultant's website that Consultant deems, in its sole discretion, to violate the content guidelines or any other provision of these TOS. Consultant does not guarantee that Client will have any recourse to edit or delete any content that Client has submitted. Ratings and written comments are generally posted within two to four business days. However, Consultant reserves the right to remove or to refuse to post any submission for any reason. Client acknowledges that Client, not Consultant, is responsible for the contents of Client's submission. None of the content that Client submit shall be subject to any obligation of confidence on the part of Consultant, its agents, subsidiaries, affiliates, partners or third party service providers and their respective directors, officers and employees.
6. RESERVATION OF RIGHTS
All rights not expressly granted hereunder are reserved to Consultant, including but not limited to all rights in sketches, comps, or other preliminary materials.
7. PERMISSIONS AND RELEASES
The Client agrees to indemnify and hold harmless Consultant against any and all claims, costs, and expenses, including attorney's fees, due to materials included in the Software at the request of the Client for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release.
8. REFUND POLICY
If you are not fully satisfied with your purchase of the Software, you can get your money back upon the TOS set forth below. However, we believe that most of refunds can be avoided if you get professional assistance from Consultant's support or other web-development company.
8.1. Refund Conditions
Plumrocket Magento extensions, Plumrocket Magento themes, Plumrocket Solutions and Plumrocket Packages
You have the unconditional right to claim and receive a full refund for the Software within 15 days following the day of your purchase. No refund will be available after this refund period is over.
The refund may apply only to the primary (first) license bought from Consultant, except the ones obtained illegally.
If you own more than one license, no refund will be available for additional licenses.
Your money may be refunded only once. If you buy another license at a later time, this will not be subject to a refund request.
Magento Extension Installation Service, Magento Speed Optimization Service
The cost of the service will be refunded in full as long as (a) the Consultant has not started the installation / optimization process before the claim is received, or (b) the client's server does not meet the system requirements and the installation / optimization cannot be performed.
Pay as You Go - Support Plan
The money may be refunded in full, less the cancellation fee. If you claim a refund at any time, the cancellation fee will be 20% of the remained support hours. The other 80% will be refunded in full.
Monthly Subscription - Support Plan
The money may be refunded in full, less the cancellation fee. If you claim a refund at any time, the cancellation fee will be 25% of the remained support hours. Additional $10 fee will be charged for each support hour used within first 3 month of subscribtion if Client requests cancellation within first three month from the date of purchase of Monthly Subscription - Support Plan.
Custom Website Development, Design & Publishing, Search Engine Optimization Services
The money may be refunded in full, less the cancellation fee.
If you claim a refund at any time before Consultant has started to work on your project, the cancellation fee will be 20% of the full project cost. The other 80% will be refunded in full.
If you claim a refund at any time after Consultant has started to work on your project, the cancellation fee will be calculated by the Consultant according to the progress of the project.
8.2. Refund Procedure
All refund requests must be submitted via contact form on Consultants’ website. The decision about whether to grant a refund request is made within two business days. If the refund is granted, the Client must remove all Consultants’ Software or any of its derivatives and must not use the Software unless another license is purchased.
Either party may terminate this TOS by giving 14 days written notice to the other of such termination. In the event that work is postponed or terminated at the request of the Client, Consultant shall have the right to bill pro rata for work completed through the date of that request, while reserving all rights under this TOS. If additional payment is due, this shall be payable within seven days of the Client's written notification to stop work. In the event of termination, the Client shall also pay any expenses incurred by Consultant and the Consultant shall own all rights to the Software. The Client shall assume responsibility for all collection of legal fees necessitated by default in payment.
This TOS shall be governed and construed in accordance with the laws of the State of New York, USA, which shall claim venue and jurisdiction for any legal action or claim arising from the contract between Consultant and the Client. The said TOS is void where prohibited by law.
10.2. Survival of Contract
Where one or more terms of this TOS are held to be void or unenforceable for whatever reason, any other terms of the TOS not so held will remain valid and enforceable at law.
The Client and Consultant are independent parties and nothing in this TOS shall constitute either party as the employer, principal or partner of or joint venture with the other party. Neither the Client nor Consultant has any authority to assume or create any obligation or liability, either express or implied, on behalf of the other.
10.4. Entire Agreement
This TOS replaces all previous agreements and the discussions relating to the subject matters hereof and constitutes the entire agreement between the Client and the Consultant with respect to the subject matters of this Agreement. This Agreement may not be modified in any respect by any verbal statement, representation, or agreement made by any employee, officer, or representative of the Client, or by any written documents unless it is signed by an officer of the Client and by the Consultant.
Authorized representative of the Client certifies that he or she is at least 18 years of age and legally capable of entering a contract in the State of New York on behalf of the Client.
This document was last updated on February 10th, 2015