TRADE IN COOL CUSTOMER AGREEMENT
These Terms of Service (the "Agreement") set forth the terms and conditions of Your Use of hosting and related services ("Services"). In this Agreement "You", "Your" and "Customer" refer to You as the user of Our Services, or any agent, employee, servant or person authorized to act on Your behalf. "We", "us" and "our" refer to Trade in Cool LLC.
This Agreement explains Our obligations to You, and explains Your obligations to Us for the various services or products offered by Trade in Cool (“Services”). When You use Your account or permit someone else to use it to purchase or otherwise acquire access to additional Services or to cancel Your Services (even if We were not notified of such authorization), You signify Your agreement to the terms and conditions contained in this Agreement.
By submitting an order request and/or by using Trade in Cool services, Customer agrees to the terms and conditions of this Trade in Cool Customer Agreement (the “Agreement”).
1.1 “Plans” means proposals for offering various services to be provided by Trade in Cool. “Plans” do not include the use of Trade in Cool’s trademark.
1.2 “Customer” means an end user who is utilizing services provided by tradeincool.com.
1.3 “Trade in Cool” refers to tradeincool.com and Trade in Cool LLC. Occasionally Customers may receive communication directly from Trade in Cool depending on the services required.
1.4 "Services" means hosting and/or development and/or maintenance work provided by Us.
2.1 Payment shall be made in US dollars to Trade in Cool into the account designated by Trade in Cool, or as may otherwise be agreed in writing by the parties. Payments are due upon presentation of invoice. Customer is responsible for paying any bank charges, transfer fees or similar charges (“Transfer Fees”). In the event Trade in Cool receives less than its invoice amount due to any such Transfer Fees, Trade in Cool will re-invoice Customer for the shortfall. Should payment in full of any invoice not be received by Trade in Cool within thirty (30) days after presentation, Trade in Cool will impose a debt service charge amounting to one percent (1%) of the unpaid balance for each month or fraction thereof for which that amount remains unpaid. Client agrees to pay the lesser of eighteen percent (18%) per year or the maximum amount allowed by law on all past due amounts. In the event that legal proceedings must be instituted to recover any due amounts, Trade in Cool shall be entitled to recover the cost of collections, including reasonable attorney fees, court fees, and collections agency fees. Further, Trade in Cool may suspend service when Client’s account is past due.
2.2 During this Agreement, Customer may opt to utilize additional services beyond the scope of Customer’s original account order or current account allocations. In such event, Customer is responsible for recognizing that it has required any such additional services and is responsible for any automatic renewal provisions. Further, Customer accepts charges based on any services utilized in excess of Customer’s original account order or current account allocations.
2.3 Customers who have a card on file with be billed on the date they signed up for services. Customers who do not have a card on file are responsible for making payments by said due dates. Customer is responsible for tracking payment due dates and maintaining proper payments by said dates. Trade in Cool retains the right to discontinue, withhold, or suspend services for any account that is in past due status. If an account is not properly paid on the recognized account renewal date, Trade in Cool may impose additional fees to resolve, reactivate, or retrieve Customer’s access to account information.
- HOSTING AND MAINTENANCE CONTRACT CANCELLATION
3.1 Cancellation of a hosting or maintenance account requires advance notice. Shared Hosting Accounts and Maintenance Accounts require Thirty days (30) notice prior to the first (1st) day of the next billing cycle. Dedicated Server Hosting Accounts and E-commerce Accounts require Sixty days (60) notice prior to the first (1st) day of the next billing cycle. For all hosting and maintenance accounts the first (1st) day of each billing cycle is the first (1st) day of each month.
3.2 Because web hosting services are provided on a monthly basis, the client will be responsible for service fees already paid regardless of when the client provides notice of termination. Thus, for example, if Client provides notice to terminate prior to the end of the billing cycle, which in every case is the end of the month, the remaining balance for that month will not be pro-rated or refunded. If Client has prepaid for services six (6) or twelve (12) months in advance, the client agrees that no refunds will be issued for any unused portion of the services regardless of when the client cancels the services. Therefore, if the client's account is cancelled at any point during the pre-paid contract term, Client will not be entitled to a pro-rated refund.
3.3 All accounts are cancelled as soon as the client submits the account cancellation request, at which time all remaining files in Client's account will be deleted. Client is responsible to remove all personal files from the server prior to the cancellation request. Trade in Cool will not be held responsible for any files deleted by Trade in Cool on that day. The cancellation procedure is subject to change without notice. Cancellations must be provided through a written notice of its decision to discontinue an account. If no written cancellation notice is received before the deadline as required by Trade in Cool, Customer will remain responsible for payment for services during the next billing period.
- REFUND POLICY
4.1 PLEASE NOTE: THIS REFUND POLICY ONLY APPLIES TO OUR ONLINE ELECTRONIC SOFTWARE SALES AND DOWNLOADS. IF YOU PURCHASE(D) A QUOTED WEBSITE THEN YOU WILL BE HELD TO THE TERMS OF THE CONTRACT YOU SIGN(ED).
4.2 Trade in Cool does not offer refunds for any purchased goods. Electronically distributed software and software licenses can be easily duplicated. Once a product has been released to a customer, the sale is final, no exceptions. You may not return any software for a refund or credit. Please review the information provided on the software pages prior to purchasing and be sure you know what you are purchasing.
- LIMITATION OF TRADE IN COOL’S OBLIGATIONS AND LIABILITY
5.1 Trade in Cool will utilize its best efforts to maintain acceptable performance of services contracted for services, but Trade in Cool makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Trade in Cool cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Trade in Cool is not liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. Trade in Cool is not liable to Customer or any of its customers for any claims or damages which may be suffered by Customer or its customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of Trade in Cool.
5.2 Trade in Cool may discontinue servicing any Plan, or may require fulfillment of conditions Trade in Cool may choose to impose as a prerequisite for continuing to service any Plan. Trade in Cool agrees to provide Customer with reasonable notice via Email and fax of any such intent to discontinue or impose conditions.
5.3 Services provided by Trade in Cool to Customer shall be deemed accepted for all purposes thirty (30) days after presentation of invoice for such services, if no written claim or objection regarding such services has been received by Trade in Cool within the thirty (30) day period.
5.4 Trade in Cool’s liability to Customer and any end user of any Plan or other Trade in Cool services is limited to the amount paid to and received by Trade in Cool for services. In no event shall Trade in Cool be liable to Customer, any end user, or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Trade in Cool has been advised of the possibility of such damage.
5.5 Customer will take all necessary measures to preclude Trade in Cool from being made a party to any lawsuit or claim regarding Trade in Cool services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless Trade in Cool from any and all claims of whatever nature brought by any of Customer’s customers against Trade in Cool in excess of the remedy set forth in Section 5.4.
- PROPERTY RIGHTS
6.1 Trade in Cool owns all right, title and interest in Trade in Cool’s trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of Plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This Agreement does not constitute a license to Customer to use Trade in Cool’s trade names or service marks. The use by Customer of the other property rights mentioned here is authorized only for the purposes of marketing and selling Plans.
7.1 Customer acknowledges that by reason of its relationship with Trade in Cool, it may have access to certain information and materials relating to Trade in Cool’s business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to Trade in Cool (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties. Customer agrees that it will not use in any way, for its own account or for the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by Trade in Cool. Customer further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this Agreement, there shall be no use or disclosure by Customer of any such Confidential Information in its possession, and all confidential materials shall be returned to Trade in Cool or destroyed. The provisions of this section shall survive the termination of this Agreement for any reason. Upon any breach or threatened breach of this section, Trade in Cool shall be entitled to injunctive relief, which relief shall not be contested by Customer.
- RELATIONSHIP OF THE PARTIES
8.1 The relationship between Trade in Cool and Customer is that of vendor and vendee. They shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee. This Agreement is a commercial agreement between businesses, not a consumer agreement. Customer has no authority, apparent or otherwise, to contract for or on behalf of Trade in Cool, or in any other way legally bind Trade in Cool in any fashion, nor shall Customer be authorized to make any representations about Trade in Cool or its services other than to set forth Trade in Cool’ responsibilities as outlined in this Agreement.
9.1 The parties shall attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in Section 7 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Iowa City, Iowa, or at another location if the parties so agree. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator’s compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels.
- TERM, TERMINATION
10.1 This Agreement is effective throughout the term of the services required by Customer, including any automatic renewal periods unless terminated in one of the following ways:
A. By either party, by notifying the other in writing.
B. By Trade in Cool, upon thirty (30) days’ written notice, if Customer breaches any material and substantial provision of this Agreement and has not cured by the end of the thirty (30) days.
C. By Trade in Cool, immediately upon giving written notice to Customer, in the event that (i) any bank draft, check, or credit card payment delivered by Customer to Trade in Cool in payment for Products is returned unpaid and Customer fails to remedy such nonpayment within five (5) business days; (ii) Customer becomes more than thirty (30) days in arrears in payment of its account with Trade in Cool; (iii) bankruptcy or insolvency proceedings are instituted against Customer, which are not vacated within sixty (60) days from the date of filing; (iv) Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; or (v) Customer makes an assignment of all or part of its assets for the benefit of creditors.
D. By Trade in Cool immediately, if Customer attempts to assign all or any part of this Agreement without Trade in Cool’s prior written approval;
E. By Trade in Cool immediately, if Customer fails to cause Trade in Cool to be informed in writing immediately on the happening of any event specified in this section;
F. By Customer, immediately upon giving written notice to Trade in Cool, if: (i) bankruptcy or insolvency proceedings are instituted against Trade in Cool, which are not vacated within sixty (60) days from the date of filing; (ii) Trade in Cool institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; (iii) Trade in Cool makes an assignment of all or part of its assets for the benefit of creditors; or (iv) Trade in Cool fails to cause Customer to be informed in writing immediately on the happening of any event specified in this section.
The provisions of this paragraph survive any termination of this Agreement.
- BILLABLE TIME
12.1 Any requests by Customer for work and/or support agrees to pay Trade in Cool for their time. Trade in Cool tracks time in tenths of an hour at the rate of 165 USD per hour.
12.1 Customer’s rights and obligations under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of Trade in Cool, which consent shall not be unreasonably refused.
- PARTIAL INVALIDITY
13.1 If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Trade in Cool and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
- APPLICABLE LAW, JURISDICTIONAL MATTERS
14.1 This Agreement takes effect when accepted by Trade in Cool in Iowa. It is to be governed by and construed under the laws of the State of Iowa and the United States of America. The federal and state courts of the State of Iowa shall have exclusive jurisdiction to adjudicate any non-arbitrary dispute arising out of this Agreement.
14.2 Customer hereby expressly consents to:
A. The jurisdiction of the courts of Iowa and
B. Service of process being effective upon it by registered mail sent to the address set forth in Customer’s order form, as may be changed from time to time by written notice actually received by Trade in Cool.
- ENTIRE AGREEMENT; MODIFICATIONS
15.1 This Agreement between Trade in Cool and Customer sets forth the entire agreement and understanding between the parties and merges all prior discussion between them.
15.2 You agree that Trade in Cool may modify this Agreement and the Services it offers to You from time to time. You agree to be bound by any changes Trade in Cool may reasonably make to this Agreement when such changes are made. If You have purchased Services from Trade in Cool, the terms and conditions of this Agreement shall continue in full force and effect as long as You take advantage of and use the Services. By continuing to use the Services after any revision to this Agreement or change in services, you agree to abide by and be bound by any such revisions or changes.