Wicked Graphics Subscription Service Terms of Use
Last Revised: December 18, 2018
Terms of Services
These WickedGraphics.com Terms of Use (“Terms of Use”), together with such additional terms which specifically apply to all of our services and features as presented on the WickedGraphics.com website(s) (“Wicked Graphics Website”, and collectively – the “Wicked Graphics Terms”), all set forth the entire terms and conditions applicable to each visitor or user (“User” our “you”) of the Wicked Graphics Website, and/or any other services, applications and features offered by us with respect thereto, except where we explicitly state otherwise (all services offered through the Wicked Graphics Website– the “Wicked Graphics Services” or “Services”).
The Wicked Graphics Terms constitute a binding and enforceable legal contract between Wicked Graphics, LLC and its affiliated companies and subsidiaries (“Wicked Graphics”, “Wicked Graphics”, “us” or “we”) and you in relation to the use of any Wicked Graphics Services - so please read them carefully.
You may visit and/or use the Wicked Graphics Services and/or Website only if you fully agree to the Wicked Graphics Terms and Privacy Policy - and by using and/or registering to any of the Wicked Graphics Services, you signify and affirm your informed consent to these Terms of Use and any other Wicked Graphics Terms applicable to your use of any Wicked Graphics Services. If you do not read, fully understand and agree to the Wicked Graphics Terms, you must immediately leave the Wicked Graphics Website and avoid or discontinue all use of the Wicked Graphics Services.
By using our Services, you acknowledge that you have read our Privacy Policy available at www.wickedgraphics.com/privacy (“Privacy Policy”).
You agree that you will not be making use of this website for unlawful purposes and would bear in mind all the laws and regulations. You agree to not use this website in a way that may impact its performance, corrupt the content or in any way hinder the functionality of this website. You also agree to not compromise the safety of this website or trying to enter restricted areas of this website. You consent to be entirely responsible for any claim, liability, expense, costs and losses that include legal fees by us which starts from violation of the mentioned terms and conditions.
Modification
We reserve the right to change any part of this document without any prior notice and your usage of our website would amount to your consent to these terms and conditions. We encourage our visitors to constantly check this document. Wicked Graphics reserves the full right to alter or erase any part of this site without warning or liability that sparks from that action.
User Platform
In order to access and use certain sections and features of the Wicked Graphics Services, you may have access to your specific content on your specific platform (“User Platform”).
If anyone other than yourself accesses your User Platform and/or any of your User Platforms’ settings, they may perform any actions available to you, make changes to your User Platform(s), and accept any legal terms available therein, make various representations and warranties and more – and all such activities will be deemed to have occurred on your behalf and in your name.
Therefore, we strongly encourage you to keep the log-in credentials of your User Platform confidential, and allow such access only to people you trust - as you will be solely and fully responsible for all activities that occur under your User Platforms (including for any representations, warranties and undertakings made therein), whether or not specifically authorized by you, and for any damages, expenses or losses that may result from such activities.
You must provide accurate and complete information when registering your User Platform and using the Wicked Graphics Services, to which you are the sole and exclusive rights holder.
Each time you use your password or identification, you will be deemed to be authorized to access and use the Wicked Graphics Website in a manner consistent with this Agreement and we have no obligation to investigate the authorization or source of any such access or use of the Website.
YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.
You are solely responsible for protecting the security and confidentiality of your password and identification. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Wicked Graphics Website's security.
Notwithstanding the forgoing, Wicked Graphics shall have the right to determine the ownership of User Content and/or a User Website as it chooses, including by ignoring the indications set forth above, in event Wicked Graphics deems, at its sole discretion, that the situation justifies such determination, all based upon the factual situation as determined by Wicked Graphics.
Your Obligations
You are at least thirteen (13) years of age, or of the legal age of majority in your jurisdiction, and possess the legal authority, right and freedom to enter into the Wicked Graphics Terms and to form a binding agreement, for yourself or on behalf of the person or entity committed by you to the Wicked Graphics Terms;
You are not a resident of (or will use the Wicked Graphics Services in) a country that the U.S. government has embargoed for use of the Wicked Graphics Services, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations;
Your country of residence and/or your company’s country of incorporation is the same as the country specified in the contact and/or billing address you provide us;
You understand that Wicked Graphics does not provide any legal advice or any recommendation with respect to any laws or requirements applicable to your use or any of your End Users, or your compliance therewith;
And specifically regarding your User Content:
You confirm you own all rights in and to any content uploaded or provided by you, or imported, copied or uploaded by Wicked Graphics Services for you, to your User Platform (“User Content”), including any designs, images, animations, videos, audio files, fonts, logos, code, illustrations, compositions, artworks, interfaces, usernames, information you provide for the purpose of creating a subdomain name, text, literary works and any other materials (“Content”), or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally access to, import, copy, use, publish, transfer or license such User Content, by you and us or any of our affiliates;
You have (and will maintain) the full power, title, licenses, consents and authority to allow Wicked Graphics Services to access any websites, web pages and/or other online services, for the purpose of importing, copying, displaying, uploading, transmitting and/or otherwise using, your User Content.
The User Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to upload, import, copy, possess, post, transmit, display or otherwise use, in the country in which you or your User Platform’s visitors and users (“End Users”) reside, or for Wicked Graphics and/or your End Users to access, import, copy, upload, use or possess in connection with the Wicked Graphics Services;
You have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the User Content, and you will adhere to all laws applicable thereto.
You undertake and agree to:
Fully comply with all applicable laws and any other contractual terms which govern your use of the Wicked Graphics Services (and any related interaction or transaction), including those specific laws applicable to you or your End Users in any of your geographical locations;
Be solely responsible and liable with respect to any of the uses of the Wicked Graphics Services which occur under your User Account and/or User Platform(s), and for any of your User Content (including for any consequences of accessing, importing, uploading, copying, using or publishing such User Content on or with respect to the Wicked Graphics Services);
Regularly and independently save and backup any of your User Content and the information that is being processed by you regarding your User Platform, including with respect to End Users, User Products, and any applications and/or Third Party Services used by you;
Allow Wicked Graphics to use in perpetuity, worldwide and free of charge, any version of your User Platform (or any part thereof) for any of Wicked Graphics’s marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes, and you waive any claims against Wicked Graphics or anyone on its behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that you may have in or to your User Platform with respect to such limited permitted uses;
Wicked Graphics’s sole discretion as to the means, manner, and method for performing the Wicked Graphics Services, including those regarding the hosting, transmission, publication and/or display of any User Platforms and/or Content (including the inclusion and presentation of any advertisements or other commercial content with respect thereto).
Wicked Graphics shall have the right to offer the Wicked Graphics Services in alternative price plans and impose different restrictions as for the upload, storage, download and use of the Wicked Graphics Services in each price plan, including, without limitation, restrictions on network traffic and bandwidth, size and/or length of Content, quality and/or format of Content, sources of Content, volume of download time, number of subscribers to your Content, etc.
You agree and undertake not to:
Copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the Wicked Graphics Website, the Wicked Graphics Services (or any part thereof), any Content offered by Wicked Graphics or Third Party Services for use and display within User Platforms (“Licensed Content”) and/or any part thereof in any way, or publicly display, perform, transmit or distribute any of the foregoing without Wicked Graphics prior written and specific consent and/or as expressly permitted under the Wicked Graphics Terms;
Submit, transmit or display any User Content, or use Licensed Content in a context, which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of Wicked Graphics or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval;
Use any illegal action to collect login data and/or passwords for other websites, third parties, software or services;
Phish, collect, upload, or otherwise make available credit card information or other forms of financial data used for collecting payments, unless done in accordance with any applicable law, including, with the PCI DSS standard when applicable;
Upload, insert, collect or otherwise make available within the Wicked Graphics Website or the Wicked Graphics Services (or any part thereof), any malicious, unlawful, defamatory or obscene Content;
Publish and/or make any use of the Wicked Graphics Services or Licensed Content on any website, media, network or system other than those provided by Wicked Graphics, and/or frame, “deep link”, “page scrape”, mirror and/or create a browser or border environment around any of the WF Services, Licensed Content and/or User Platform (or any part thereof), except as expressly permitted by Wicked Graphics, in advance and in writing;
Use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Wicked Graphics Services (or its data and/or Content), or in any way reproduce or circumvent the navigational structure or presentation of any of the Wicked Graphics Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Wicked Graphics Services;
Act in a manner which might be perceived as damaging to Wicked Graphics reputation and goodwill or which may bring Wicked Graphics into disrepute or harm;
Purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Wicked Graphics or Wicked Graphics Marks and/or variations and misspellings thereof;
Impersonate any person or entity or provide false information on the Wicked Graphics Services and/or User Platform, whether directly or indirectly, or otherwise perform any manipulation in order to disguise your identity or the origin of any message or transmittal you send to Wicked Graphics and/or any End Users;
Falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that Wicked Graphics or any third party endorses you, your User Platform, your business, your User Products, or any statement you make;
Reverse look-up, trace, or seek to trace another User of Wicked Graphics Services, or otherwise interfere with or violate any other User’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the Wicked Graphics Services and/or User Platform without their express and informed consent;
Disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the Wicked Graphics Services, User Platform, the account of another User(s), or any other systems or networks connected to the Wicked Graphics Services, by hacking, password mining, or other illegitimate or prohibited means;
Probe, scan, or test the vulnerability of the Wicked Graphics Services or any network connected to the Wicked Graphics Services;
Upload to the Wicked Graphics Services and/or User Platform or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
Take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Wicked Graphics Services or Wicked Graphics systems or networks connected to the Wicked Graphics Services, or otherwise interfere with or disrupt the operation of any of the Wicked Graphics Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
Use any of the Wicked Graphics Services and/or User Platform in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising;
Access to Wicked Graphics Services, Licensed Content and/or User Content, through any means or technology (e.g. scraping and crawling), other than our publicly supported interfaces.
Sell, license, or exploit for any commercial purposes any use of or access to the Licensed Content and/or Wicked Graphics Services, except as expressly permitted by the Wicked Graphics Terms;
Remove or alter any copyright notices, watermarks, restrictions and signs indicating proprietary rights of any of our licensors, including copyright mark [©], Creative Commons [(cc)] indicators, or trademarks [® or ™] contained in or accompanying the Wicked Graphics Services and/or Licensed Content; or
Violate, attempt to violate, or otherwise fail to comply with any of the Wicked Graphics Terms or any laws or requirements applicable to your use of the Wicked Graphics Services.
Access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service.
You acknowledge and agree that your failure to abide by any of the foregoing or any misrepresentation made by you herein may result in the immediate termination of and/or any Services provided to you – with or without further notice to you, and without any refund of amounts paid on account of any such Services.
Content and Ownership
Your Intellectual Property
As between Wicked Graphics and you, you shall own all intellectual property pertaining to your User Content and to any other materials created by you, including to any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, code, interfaces, text and literary works. Wicked Graphics does not claim ownership rights on your content. For the sole purpose of granting you the service, You know and agree that we will need to access, upload and/or copy your User Content to our platform, including cloud services and CDN’s, to make display adjustments, to duplicate for backup and perform any other technical actions and/or uses required to perform our services, as we deem fit.
Wicked Graphics Intellectual Property
All rights, title and interest in and to the Wicked Graphics Services, including any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law (including any artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, documentation, derivatives and versions thereof, the “look and feel” of the Wicked Graphics Services, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers, whether or not registered and/or capable of being registered (collectively, “Intellectual Property”), and any derivations thereof, are owned by and/or licensed to Wicked Graphics.
Subject to your full compliance with the Wicked Graphics Terms and timely payment of all applicable Fees, Wicked Graphics hereby grants you, for as long as Wicked Graphics wishes to provide you with the Wicked Graphics Services, a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to use the Wicked Graphics Services and Licensed Content, for the purpose of generating and displaying your User Platform to End Users and offering your User Products (as defined below) therein, solely as expressly permitted under the Wicked Graphics Terms, and solely within the Wicked Graphics Services.
The Wicked Graphics Terms do not convey any right or interest in or to Wicked Graphics Intellectual Property (or any part thereof), except only for the limited license expressly granted above. Nothing in the Wicked Graphics Terms constitutes an assignment or waiver of Wicked Graphics Intellectual Property rights under any law.
In addition to the above, certain fonts made available to you within the Wicked Graphics Services, are licensed to WT by a third party provider, and are therefore subject to additional license terms of such provider.
Feedback and Suggestions
If you provide us with any suggestions, comments or other feedback relating to the Wicked Graphics Services (whether existing, suggested or contemplated), which is or may be subject to any Intellectual Property rights (“Feedback”), such Feedback shall be exclusively owned by Wicked Graphics. By providing such Feedback to Wicked Graphics, you acknowledge and agree that it may be used by Wicked Graphics in order to: (i) further develop, customize and improve of the Wicked Graphics Services, (ii) provide ongoing assistance and technical support, (iii) contact you with general or personalized Wicked Graphics -related notices and/or interview requests based on your feedback or otherwise, (iv) facilitate, sponsor and offer certain promotions, and monitor performance, (v) to create aggregated statistical data and other aggregated and/or inferred information, which Wicked Graphics may use to provide and improve its services, (vi) to enhance Wicked Graphics data security and fraud prevention capabilities, and (vii) to comply with any applicable laws and regulations. In addition, you (1) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (2) irrevocably assign to Wicked Graphics any right, title and interest you may have in such Feedback and (3) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Feedback.
You agree that submission of any ideas, suggestions, documents, and/or proposals to us through its suggestion, feedback, wiki, forum or similar pages, is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Site and Services.
Privacy
Certain parts of the Wicked Graphics Services (including certain Third Party Services available therein, as further explained in Section “Third Party Services” below) require or involve the submission, collection and/or use of certain personally identifying or identifiable information. In particular and as a part of accessing or using the Wicked Graphics Services, Wicked Graphics and such Third Party Services may collect, access and use certain data pertaining to Users and End Users, including the activities or navigation undertaken by Users and End Users through the Wicked Graphics Services and/or User Platforms. We encourage you to read our Privacy Policy and each such Third Party Services’ relevant policies on a regular basis, for a description of such data collection and use practices.
Service Fees and Paid Services
The use of certain Wicked Graphics Services may be subject to payment of particular fees, as determined by Wicked Graphics in its sole discretion (“Paid Services” and “Fee(s)”, respectively). Wicked Graphics will provide notice of such Fees then in effect in relation to such Paid Services. If you wish to receive or use such Paid Services, you are required to pay all applicable Fees in advance.
Wicked Graphics reserves the right to change its Fees at any time, upon notice to you if such change may affect your existing subscriptions. If you received a discount or other promotional offer, Wicked Graphics shall have the right to automatically and without notice renew your subscription to such Wicked Graphics Service(s) at the full applicable Fee.
All Fees shall be deemed to be in U.S. Dollars. To the extent permitted by law (and unless specified otherwise by Wicked Graphics in writing), all Fees are exclusive of all taxes (including value added tax, sales tax, goods and services tax, etc.), levies or duties imposed by taxing authorities (“Taxes”), and you shall be responsible for payment of all applicable Taxes relating to your use of the Wicked Graphics Services, or to any payments or purchases made by you. If Wicked Graphics is obligated to collect or pay Taxes for the Fees payable by you, and whether or not such Taxes were added and collected from you for previous transactions, such Taxes may be added to the payment of any outstanding Fees and will be reflected in the Invoice for such transaction. We recommend that you verify the existence of any additional fees you may be charged by third parties in connection with the purchase of Paid Services or in connection with the renewal thereof (such as international transaction fees, currency exchange fees or fees due to banks or credit card companies). Wicked Graphics is not responsible for any such additional fees or costs.
As part of registering or submitting information to receive Paid Services, you also authorize Wicked Graphics (either directly or through its affiliates, subsidiaries or other third parties) to request and collect payment (or otherwise charge, refund or take any other billing actions) from our payment provider or your designated banking account, and to make any inquiries Wicked Graphics or its affiliates may consider necessary to validate your designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from your payment, credit card or banking account provider (e.g., updated expiry date or card number as may be provided to us by your credit card company).
You may keep a credit card stored with Wicked Graphics to pay for Paid Services (“Stored Card”). You will be able to identify each Stored Card by its last four digits as in your Account Settings Page.
Third Party Payment Processors
We use third party payment processors to assist in processing your Personally Identifiable payment information securely. Such third party processors’ use of your personal information is governed by their respective privacy policies. Payments are currently processed and managed using Stripe. Their privacy policy can be accessed here: https://stripe.com/us/privacy.
Invoices
Wicked Graphics and/or its affiliated companies will issue an invoice or credit memo for any payment of Fees or refund made to or by Wicked Graphics (“Invoice”). Each Invoice will be issued in electronic form and/or by e-mail. For the purpose of issuing the Invoice, you may be required to furnish certain Personal Information (as such term is defined in the Privacy Policy) in order to comply with local laws.
Subscription Auto-Renewals
In order to ensure that you do not experience any interruption or loss of services, Paid Services include an automatic renewal option by default, according to which, unless you cancel Wicked Graphics Services with explicit written notice to Wicked Graphics, the auto-renewal option, such Paid Services will automatically renew upon the end of the applicable subscription period, for a renewal period equal in time to the original subscription period (excluding extended periods) and, unless otherwise notified to you, at the same price (subject to applicable Taxes changes and excluding any discount or other promotional offer provided for the first period) (“Renewing Paid Services”). Original subscription period for Wicked Graphics Service is a yearly minimum (“Original Term”), each of its renewal periods (where applicable) will be for one month thereafter. Accordingly, where applicable, Wicked Graphics will attempt to automatically charge you the applicable Fees using the Stored Card, within up-to two (2) weeks before such renewal period commences. In the event of failure to collect the Fees owed by you, we may in our sole discretion (but shall not be obligated to) retry to collect on a later time, and/or suspend or cancel your subscription, without further notice. If your Renewing Paid Service is subject to a yearly or multiple-year subscription period, Wicked Graphics will endeavor to provide you a notice of payment of such Paid Service at least two (2) days after the renewal date.
By entering into this Agreement and by purchasing a Renewing Paid Service, you acknowledge and agree that the Renewing Paid Service shall automatically renew in accordance with the above terms.
You may turn-off the auto-renewal option or cancel your Renewing Paid Services at any time, after Original Term, by providing explicit written notice to Wicked Graphics thirty (30) days prior to the next payment date.
Certain domains are subject to a different renewal policy. Notwithstanding anything to the contrary in the foregoing, you are and shall be solely responsible to verify and ensure the successful renewal of the Wicked Graphics Services you use (whether or not such Wicked Graphics Services are subject to automatic subscription renewals). Accordingly, you shall be solely responsible with respect to any discontinuation of any Wicked Graphics Services previously purchased by you, including due to a cancellation, failure to charge the applicable recurring Fees, or due to any Wicked Graphics Services not being subject to automatic subscription renewals. You acknowledge and agree that you shall not have any claims against Wicked Graphics in relation to the discontinuation of any Wicked Graphics Services or Third Party Services, for whatever reason.
Chargebacks
If, at any time, we record a decline, chargeback or other rejection of a charge of any payable Fees on your Wicked Graphics account (“Chargeback”), this will be considered as a breach of your payment obligations hereunder, and your use of the Wicked Graphics Services may be automatically disabled or terminated.
In the event a Chargeback is performed, you may be blocked without the option to re-purchase or re-use Wicked Graphic Services, and any data contained, including any domains, applications and Third Party Services may be subject to cancellation and Capacity Loss (as defined in Section “Loss of Data, Content and Capacity” below).
Your use of the Wicked Graphics Services will not resume until you re-subscribe for any such Wicked Graphics Services, and pay any applicable Fees in full, including any fees and expenses incurred by Wicked Graphics and/or any Third Party Services for each Chargeback received (including Fees for Wicked Graphics Services provided prior to the Chargeback, handling and processing charges and fees incurred by the payment processor).
We reserve our right to dispute any Chargeback received, including by providing the relevant credit card company or financial institution with any information and documentation proving that the User responsible for such Chargeback did in fact authorize the transaction and make use of the services rendered thereafter.
Ongoing Maintenance and Support
Wicked Graphics shall provide you with minor updates to the web site for an indefinite period of within this contract. The contract will be paid on a Monthly Basis with the 1st payment due as soon as initial work is complete and each payment due around the date of initial payment of each month.
During the duration of this contract, you agree that Wicked Graphics will be the sole provider of maintenance services for the web site, and no other party will have access to or rights to change the web site. If a party other than Wicked Graphics makes changes to the web site, any errors that are created must be repaired and will be charged for at the hourly rate of $120 per hour. Minor updates should not exceed more than 50% of the content on any single site page, THE PERCENTAGE TO BE DETERMINED BY WICKED GRAPHICS. Hours spent on maintenance services shall not exceed eight (8) hours per month.
Wicked Graphics will respond to all maintenance requests from you within 24 hours on weekdays and 48 hours on weekends, via email or phone, with a confirmation that the request was received, and an estimated completion date for each action item in the request. Maintenance requests received after 18:00 GMT may not be completed until the next business day unless prior arrangements have been made. Most work will be done within this time frame, this is mostly precautionary.
Wicked Graphics will adhere to all quoted deadlines for the deliverables in the maintenance requests at all possible costs. In the event that Wicked Graphics has any issues in delivering on a quoted deadline, Client will be notified via email or telephone the reasoning for any change.
Any revisions, additions or redesign you request Wicked Graphics to perform that is not specified in this document shall be considered "additional" and will require separate agreement and payment. Wicked Graphics shall advise you on any requested work that falls within these bounds.
Cancellation
Cancellation by User
You may discontinue to use and request to cancel any Wicked Graphics Services at any time after Original Term, in accordance with the instructions available on the Wicked Graphics Services. The effective date and time for such cancellation shall be the date and time on which you have completed the cancellation process on the Wicked Graphics Services, and the effective date for cancellation of Paid Services shall be at the end of such Paid Services’ subscription period. Any applicable Fees of Original Term shall be paid in full, and/or at once, if effective cancellation date is within Original Term subscription period.
Notwithstanding anything to the contrary in the foregoing, with respect to subscriptions to Renewing Paid Services, such subscription will be discontinued only upon the expiration of the respective period for which you have already made payment. Please note that as the cancellation process may take a few days, in order to avoid the next automatic renewal and respective charge the cancellation request should be made at least thirty (30) days prior to the expiration of the then-current service period.
Cancellation by Wicked Graphics
Failure to comply with any of the Wicked Graphics Terms and/or to pay any due Fee shall entitle Wicked Graphics to suspend (until full payment is made) or cancel your User Platform (or certain features thereof), as well as the provision of any related Wicked Graphics Services (e.g., Paid Services) or Third Party Services to you.
Loss of Data, Content and Capacity
If any Wicked Graphics Services or Third Party Services related to your Paid Services are cancelled (whether at your request or at Wicked Graphics’s discretion), it may cause or result in the loss of certain content, features, or capacity of your Paid Services, including any User Content, End User data or other usage data retained therein, and including any domain name reservation or registration that was included in such Services (“Capacity Loss”). Wicked Graphics shall not be liable in any way for such Capacity Loss, or for saving a backup of your User Content or End User data. Please also note that additional Fees may apply to re-activate any Wicked Graphics Services following their cancellation, as determined by Wicked Graphics in its sole discretion.
Third Party Services
The Wicked Graphics Services enable you to engage and procure certain third party services, products and tools for enhancing your User Platform and your overall user experience (“Third Party Services”).
You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you (bundled or integrated within certain Wicked Graphics Services, offered separately by Wicked Graphics or persons certified or authorized by Wicked Graphics, or otherwise offered anywhere on the Wicked Graphics Services), Wicked Graphics merely acts as an intermediary platform between you and such Third Party Services, and does not in any way endorse any such Third Party Services, or shall be in any way responsible or liable with respect thereto. Wicked Graphics will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between you and any Third party Services.
You acknowledge that such services may require the payment of additional amounts to Wicked Graphics and/or to the providers of such Third-Party Services.
Any and all use of such Third Party Services shall be done solely at your own risk and responsibility, and may be subject to such legal and financial terms which govern such Third Party Services, which you are encouraged to review before engaging with them.
While we hope to avoid such instances, Wicked Graphics may, at any time and at its sole discretion, suspend, disable access to or remove from your User Platform(s) and/or the Wicked Graphics Services, any Third Party Services – whether or not incorporated with or made part of your User Platform(s) at such time – without any liability to you or to any End Users.
Misconduct and Abuse
When using the Wicked Graphics Services, you may be exposed to User Platforms, User Content or Third Party Services from a variety of sources, which may be inaccurate, offensive, objectionable or illegal. You hereby waive any legal or equitable rights or remedies you have or may have against Wicked Graphics with respect thereto.
Copyrights
Wicked Graphics acts in accordance with its interpretation of the Digital Millennium Copyright Act (“DMCA”).
In the event that Wicked Graphics receives notice regarding a copyright infringement related to your User Platform or User Website, it may cancel and/or take your User Platform down or remove any Content in its sole discretion, with or without prior notice to you. In such case, you may file a proper counter-notice in accordance with Section 512 of the DMCA, in which you must include: (1) your full name, address, phone number and physical or electronic signature; (2) identification of the material and its location before removal; (3) a statement under penalty of perjury that the material was removed by mistake or misidentification; (4) your consent to an appropriate judicial body; and (5) any other information required under the relevant provisions of the DMCA. Any notices filed pursuant to this Section “Copyrights” may be deemed accepted, applicable and compliant with the DMCA, or not, at Wicked Graphic’s sole reasonable discretion. Wicked Graphics reserves the right to notify the person or entity providing the infringement notice of such counter-notice and provide any details included therein.
Disclaimer of Warranties
We provide the Wicked Graphics Services on an “As Is”, “with all faults” and “As Available” basis, without any warranties of any kind, including any implied warranties or conditions of merchantability, fitness for a particular purpose, workmanlike effort, non-infringement, or any other warranty – all to the fullest extent permitted by law. We specifically do not represent or warrant that the Wicked Graphics Services (or any part, feature or Content thereof) are complete, accurate, of any certain quality, reliable or secure in any way, suitable for or compatible with any of your (or your End Users’) contemplated activities, devices, operating systems, browsers, software or tools (or that they will remain as such at any time), or comply with any laws applicable to you or your End Users (including in any jurisdiction in which you operate), or that their operation will be free of any viruses, bugs or other harmful components or program limitations. Moreover, we do not endorse any entity, product or service (including any Third Party Services) mentioned on or made available via the Wicked Graphics Services.
Wicked Graphics may, at its sole discretion (however it shall have no obligation to do so), screen, monitor and/or edit any User Platform and/or User Content, at any time and for any reason, with or without notice.
Notwithstanding anything to the contrary in the foregoing, in no circumstances may Wicked Graphics be considered as a “publisher” of any User Content, does not in any way endorse any User Content, and assumes no liability for any User Content uploaded, posted, published and/or made available by any User or any other party on and/or through the Wicked Graphics Services, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that you or others may suffer or incur as a result of or in connection with publishing, accessing and/or relying on any User Content. Furthermore, Wicked Graphics shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, pornography, incitement and/or any other unlawful and/or infringing User Content you or any other party may encounter.
You acknowledge that there are risks in using the Wicked Graphics Services and/or connecting and/or dealing with any Third Party Services through or in connection with Wicked Graphics Services, and that Wicked Graphics cannot and does not guarantee any specific outcomes from such use and/or interactions, and you hereby assume all such risks, liabilities and/or harm of any kind arising in connection with and/or resulting from such interactions. Such risks may include, among others, misrepresentation of information about and/or by Third Party Services and/or Licensed Content, breach of warranty and/or contract, violation of rights, and any consequent claims.
Wicked Graphics does not recommend the use of the Wicked Graphics Services for hosting of personal content and shall not bear any security or integrity obligations or risks regarding breach or damage to any such content.
Please note that certain Wicked Graphics Services are currently offered in their BETA version, and undergoing BETA testing. You understand and agree that certain Wicked Graphics Services may still contain software bugs, suffer disruptions and not operate as intended or designated. Your use of the Wicked Graphics Services at this BETA stage signifies your agreement to participate in such Wicked Graphics Services’ BETA testing.
Limitation of Liability
To the fullest extent permitted by law in each applicable jurisdiction, Wicked Graphics, its officers, directors, shareholders, employees, affiliates and/or agents shall not be liable to you for any direct, indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, including any damages resulting from (1) errors, mistakes, or inaccuracies of or in any content; (2) any personal injury or property damage related to your use of the Wicked Graphics Services; (3) any unauthorized access to or use of our servers and/or any personal information and/or other information stored therein; (4) any interruption or cessation of transmission to or from the Wicked Graphics Services; (5) the use or display of any Content or User Content posted, emailed, transmitted, or otherwise made available via the Wicked Graphics Services; (6) events beyond the reasonable control of Wicked Graphics, including any internet failures, equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, earthquakes, explosions, acts of God, war, terrorism, intergalactic struggles, governmental actions, orders of courts, agencies or tribunals or non-performance of third parties; and/or (7) loss of use, data, profits, goodwill, or other intangible losses, resulting from the use or the inability to use any or all of Wicked Graphics Services.
You acknowledge and agree that these limitations of liability are agreed allocations of risk constituting in part the consideration for Wicked Graphics’s services to you, and such limitations will apply even if Wicked Graphics has been advised of the possibility of such liabilities.
Indemnity
You agree to defend, indemnify and hold harmless Wicked Graphics, its officers, directors, shareholders, employees, affiliates and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including attorneys’ fees) arising from: (1) your violation of any term of these Terms of Use or any other Wicked Graphics Terms; (2) your violation of any third party right, including any copyright, access rights, property, or privacy right, resulting from your User Platform or User Content and/or your use of the Wicked Graphics Services, including, without limitation, Wicked Graphics Services’ actions for your benefit; and/or (3) any other type of claim that your User Platform and/or User Content caused damage to a third party.
General
Changes & Updates
Wicked Graphics reserves the right to change, suspend or terminate any of the Wicked Graphics Services (or any features thereof, or prices applicable thereto), and/or cancel your access to any of the Wicked Graphics Services (including removal of any materials created by you in connection with the Wicked Graphics Services) for any reason and/or change any of the Wicked Graphics Terms with or without prior notice - at any time and in any manner.
You agree that Wicked Graphics will not be liable to you or to any third party for any modification, suspension or discontinuance of those Wicked Graphics Services.
If any such changes involve the payment of additional Fees, we will provide you with a notice of such Fees prior to enabling such specific changes. If you fail or refuse to pay such Fees, we may (at our sole discretion) cancel your User Platform (as further explained in Section “Cancellation” above), continue to support your then-current Wicked Graphics Services without enabling such changes, or provide you with alternative Services.
Governing Law & Jurisdiction; Class Action Waiver
The Wicked Graphics Terms, the rights and remedies provided hereunder, and any and all claims and disputes related hereto and/or to the Wicked Graphics Services, their interpretation, or the breach, termination or validity thereof, the relationships which result from or pursuant to the Wicked Graphics Terms, or any related transaction or purchase, shall be governed by, construed under and enforced in all respects solely and exclusively in accordance with the internal substantive laws of the United States of America, without respect to its conflict of laws principles.
Subject to any applicable law, all disputes between you and Wicked Graphics shall only be resolved on an individual basis and you shall not have the right to bring any claim against Wicked Graphics as a plaintiff or a member of a class, consolidated or representative actions (or any other legal proceedings conducted by a group or by representatives on behalf of others).
Notwithstanding anything to the contrary in this Section “Governing Laws and Jurisdiction”, if you are located in the United States of America, (i) the legal jurisdiction governing all aspects of the payment transaction contemplated by Section 5 between you and Wicked Graphics will be the State of New York, without respect to its conflict of laws principles, and (ii) any and all claims and disputes related to such payment transaction contemplated by Section 5 shall be brought in, and you hereby consent to them being decided exclusively by, a court of competent jurisdiction located in New York, New York.
Notices
We may provide you with notices in any of the following methods: (1) via the Wicked Graphics Services, including by a banner or pop-up within the Wicked Graphics Website, or elsewhere; (2) by e-mail, sent to the e-mail address you provided us; and/or (3) through any other means, including any phone number or physical address you provided us. Wicked Graphics’s notice to you will be deemed received and effective within twenty four (24) hours after it was published or sent through any of the foregoing methods, unless otherwise indicated in the notice.
Relationship
The Wicked Graphics Terms, and your use of the Wicked Graphics Services, do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between Wicked Graphics and you.
Entire Agreement
These Terms of Use, together with the Wicked Graphics Terms and any other legal or fee notices provided to you by Wicked Graphics, shall constitute the entire agreement between you and Wicked Graphics concerning the subject matter hereof or thereof, and supersede any and all prior or contemporaneous agreements, understandings, promises, conditions, negotiations, covenants or representations, whether written or oral, between Wicked Graphics and you, including those made by or between any of our respective representatives, with respect to any of the Wicked Graphics Services. You further agree that you are not relying upon any promise, inducement, representation, statement, disclosure or duty of disclosure of Wicked Graphics in entering into any of the Wicked Graphics Terms.
Assignment
Wicked Graphics may assign its rights and/or obligations hereunder and/or transfer ownership rights and title in the Wicked Graphics Services and/or Licensed Content to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights and obligations hereunder without the prior written consent of Wicked Graphics. Any attempted or actual assignment thereof without Wicked Graphics’s prior explicit and written consent will be null and void. In any event, an assignment or transfer pursuant to this Section ”Assignment” shall not in itself grant either Wicked Graphics or you the right to cancel any Wicked Graphics Services or Third Party Services then in effect.
Severability & Waivers
If any provision of the Wicked Graphics Terms is deemed by a court of competent jurisdiction to be invalid, unlawful, void, or for any reason unenforceable, then such provision shall be deemed severable and will not affect the validity and enforceability of the remaining provisions. No Waiver of any breach or default of any of the Wicked Graphics Terms shall be deemed to be a waiver of any preceding or subsequent breach or default.
