This Terms of Service Agreement ("Agreement") sets forth the terms and conditions that apply to your access and/or use of the internet website and software owned and operated by Target Fuel Corporation ("Target Fuel") located at my.targetfuel.com ("Site") and the services available thereon, including without limitation the services that enable you to create, test and host custom content specific to the optimization of your website(s) for online marketing purposes ("Services").
BY SIGNING/EXECUTING A SUBSCRIPTION THAT REFERENCES THIS AGREEMENT ("SUBSCRIPTION") OR BY COMPLETING THE ONLINE APPLICATION PROCESS BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Target Fuel may update this Agreement at any time, without notification to you, and you should review this Agreement from time to time by accessing the Site. Your continued use of the Site and/or the Services shall be deemed irrevocable acceptance of any such revisions. Before you continue, you should print or save a local copy of this Agreement for your records.
Target Fuel offers a range of subscriptions based on the Services provided and your estimated total traffic of your website, and are available on either monthly or annual pre-paid non-refundable contracts. All contracts will automatically renew for the same term using the payment method on file unless you changes or discontinues the service. All service upgrades are effective immediately, while downgrades are effective as of the next renewal date. Target Fuel may change its fee structure and/or provide an upgrade service at any time with notice, in which case new rates will be in effect as of the next renewal period.
There will be no refunds or credits for partial months of service or for periods in which your account remains open but you do not use the Services. If the total traffic on your website increases beyond that which you have specified, you will be informed that you have exceeded your traffic limit and you must modify your account settings such that your subscription plan traffic limit accommodates the traffic you have received within the current billing period.
We reserve the right to modify our billing rates at any time upon thirty (30) days written notice by posting such fee changes to the Services or on the Site.
Target Fuel, at its discretion, may offer free or discounted pricing for the use of the Services ("Trial Program"). At the end of the Trial Program you agree that normal subscription rates and conditions apply and agree to either pay applicable fees at that time or discontinue using Target Fuel.
To register for the Services, you must complete the registration process by providing Target Fuel with current, complete and accurate information as required by the registration form and/or subscription. You are solely responsible for any use and all activities that occur under your account. You are responsible for safeguarding the confidentiality of your password(s) and user name(s) issued to you by Target Fuel and for any use or misuse of your account resulting from any third-party using a password or user name issued to you by Target Fuel. You agree to immediately notify Target Fuel of any unauthorized use of your account or any other breach of security known to you. You agree to let Target Fuel use your organization's logo in its customer list and at other places on its website (including but not limited to VisualWebsiteOptimizer.com).
By providing us with your e-mail address, you agree to receive all required notices electronically to that e-mail address. It is your responsibility to update or change that address, as appropriate.
You agree that you are solely responsible for the content of all visual, written or audible communications using your Account. You agree that you will not use Service(s) that is harassing, libellous, threatening, and obscene, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability or that constitutes a criminal offense, under any applicable law or regulation. Although Target Fuel is not responsible for any such communications, Target Fuel may delete any such communications of which Target Fuel becomes aware, at any time without notice.
The Site and the Services available thereon enable you to provide or upload content, including but not limited to text, images, video, data, and other information or content (collectively, "Content"), to Target Fuel for the purpose of providing the Services. You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences for submitting, providing or uploading it.
Target Fuel will use Content you upload solely in connection with providing the Services to you, and for no other reason. You agree that by uploading, or otherwise providing any Content on or through the Site and/or the Services, you grant to Target Fuel a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing the Services to you. This license includes the right to host, index, cache or otherwise format your Content in order to provide the Services.
You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Target Fuel or Target Fuel's use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
Target Fuel retains the right to use or distribute any Aggregated Data generated by our customers or users. "Aggregated Data" means records which have been stripped of information potentially identifying customers, landing pages or end-users, and which have been manipulated or combined to provide generalized, anonymous information.
Each party hereto agrees to indemnify, defend, and hold harmless the other party, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising directly from the other party's violation or breach of this Agreement, or infringement by any other user of your account, of any Target Fuel intellectual property.
If you allow a third party access to the Services through your account, you shall ensure that said third party is bound by and abides by the terms of this Agreement. All provisions in this Agreement, including but not limited to warranty disclaimers, indemnity, limitations of liability, and proprietary rights, are applicable to the Third Party.
You agree to safeguard, keep secret and not to disclose to any third party, any Confidential Information acquired, learned or provided from Target Fuel during the term of this Agreement or following the expiration or termination of this Agreement. "Confidential Information" means any information marked confidential or that ought reasonably to be considered confidential under the circumstances and includes, without limitation, any business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
You consents to the collection by Target Fuel of the your information for use by Target Fuel internally for the purpose of fulfilling the terms of this Agreement and for general research purposes aimed at delivering better future service to you and others. All such information collected shall be deemed to be the proprietary and Confidential Information of you, and shall be subject to the terms of confidentiality set forth above.
TARGET FUEL AGREES TO PROVIDE ALL TARGET FUEL SERVICES IN GOOD WORKMANLIKE MANNER AND IN ACCORDANCE WITH ALL INDUSTRY STANDARDS. TARGET FUEL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TARGET FUEL MAKES NO WARRANTY OR REPRESENTATION REGARDING TARGET FUEL'S SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH TARGET FUEL'S SERVICES OR WEBSITE, OR THAT TARGET FUEL'S SERVICES WILL MEET ANY CLIENT REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. USE OF TARGET FUEL'S SERVICES AND WEBSITE ARE AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOURSELF RESULTING FROM THE USE OF TARGET FUEL'S SERVICES OR WEBSITE. THE SITE IS OFFERED AND CONTROLLED BY TARGET FUEL FROM ITS FACILITIES IN CANADA. TARGET FUEL MAKES NO REPRESENTATIONS THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS SUPPLIERS, AFFILIATES OR END USERS, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, SPECIAL, EXAMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR RESULTING FROM, (I) THE USE OF OR INABILITY TO USE THE TARGET FUEL SERVICES, WEBSITE OR TARGET FUEL SOFTWARE, OR (II) THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR (III) THE ACQUISITION OF ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH TARGET FUEL'S SERVICES OR WEBSITE, OR (IV) MESSAGES RECEIVED OR TRANSCATIONS ENTERED INTO THROUGH TARGET FUEL'S SERVICES OR WEBSITE, (V) TRANSMISSIONS OR DATA, (VI) THE PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, EACH PARTY'S MAXIMUM CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT FOR THE SERVICES. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, TARGET FUEL'S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
The Services, which includes but is not limited to all intellectually property rights in the Services, will always be the property of Target Fuel. You may use Target Fuel's Services subject to acceptance of the terms of this Agreement.
You will not, nor will you allow, any third party to reverse engineer and/or create derivatives of the Site or Services, using any method possible.
You will not, nor will you allow, any third party to modify the Site or Services in any way.
You will use Target Fuel Services solely for your commercial use and will not make the Services available for any type of external service such as, but not limited to, an application service provider.
You agree that Target Fuel may use your company name and logo on the Target Fuel website, in online and offline marketing efforts (including press releases, case studies, printed collateral, client lists) but not without your prior written consent, which consent may be withheld in your sole and absolute discretion. You agree that Target Fuel may issue a press release and/or case study identifying you as a Target Fuel customer and describing your intended utilization and the benefits that you expects to receive from use of the Services. The content of any press release/case study, identifying you as a customer of Target Fuel will be subject to your prior approval, which will not be unreasonably withheld.
You may downgrade or cancel your account at any time. You will remain liable for all charges accrued on your Account up to the time that you downgrade, including full monthly fees for the month in which you downgraded your Account. Target Fuel is under no obligation to store your Content and may delete your Account and your Content immediately upon cancellation or after your account has been downgraded to a 'Free' subscription level (if applicable). Target Fuel may keep your Account and your Content indefinitely following cancellation or after your account has been downgraded to the 'Free' subscription level.
Target Fuel may terminate the Services and/or Site access at any time without notice and for any reason including, but not limited to, a failure to comply with the terms of this Agreement. Although this agreement may terminate, some provisions of this Agreement remain in effect, including, and without limitation, warranty disclaimers, indemnity, limitations of liability, and proprietary rights.
If there is any dispute between you and Target Fuel about or involving this Agreement, the Site or the Services, you hereby agree that the dispute shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Ottawa, Ontario with respect to any claim, proceeding or action relating to or otherwise arising out of this Agreement, the Site or the Services, howsoever arising, provided always that Target Fuel may seek and obtain injunctive relief in any jurisdiction.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that this Agreement is specifically enforceable by injunctive relief and other equitable remedies without proof of monetary damages.
You agree that if Target Fuel does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Target Fuel has the benefit of under any applicable law), this will not be taken to be a formal waiver of Target Fuel's rights and that those rights or remedies will still be available to Target Fuel.
Neither party may assign or delegate their respective obligations under this Agreement either in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign their respective obligation in whole to a successor in interest which results from the sale of all or substantially all of the assets of the assigning party, provided that either party may terminate this agreement upon 10 days notice, if the assignee can be reasonably considered a competitor of the non-assigning party.
Neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labour disputes, actions of any government agency, shortage of materials, or the stability or availability of the Internet, or portion thereof.
The waiver of any one breach, default or right granted under this Agreement will not constitute the waiver of any breach, default or right granted. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force.
Last updated: August 23, 2015