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PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.  

BY USING THE SERVICE OR CLICKING AGREE (OR OTHER METHOD OF ASSENT) CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.  PLEASE REVIEW SECTION 9 CLOSELY, AS IT CONTAINS A BINDING ARBITRATION PROCESS AND A WAIVER OF CLASS ACTIONS.

This agreement is between Actonia, Inc., an Illinois corporation, and the customer agreeing to this agreement (Customer). 

1)    SEARCH ENGINE MARKETING SERVICE. This agreement provides Customer access to a proprietary online subscription service consisting of a consolidated web-based portal for tracking, reporting, managing and monitoring search engine optimization of Customer’s website, which is described in an order. Actonia will provide this service under the terms below (Service). This agreement contemplates one or more orders for the Services, which orders are governed by the terms of this agreement and will describe the Services ordered in more detail. Customer may allow its employees and contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and contractors.

a).   Trial. If Customer has ordered a trial use of the Service, then Customer may use the trial Service until terminated by either party without cause. The Service is provided AS IS during any trial period, and Customer data will be destroyed at the end of the term of the order.   

2)    USE OF SERVICES.

a).   Licensed Content. Customer owns all information, content, queries and data it submits to the Service, as between Customer and Actonia. Customer’s association with all information, content, and data returned by the Service (Licensed Content) is the Confidential Information (as defined below) of Customer, however the Licensed Content is the property of Actonia. Actonia grants Customer a license to use and copy the Licensed Content solely for Customer’s internal purposes, subject to the restrictions below.  

b).  Actonia Support. Technical support is provided as described at https://www.seoclarity.net/support/.

c).   Customer Responsibilities. Customer (i) must use commercially reasonable efforts to prevent unauthorized access to the Services, and notify Actonia promptly of any such unauthorized access, and (ii) may use the Services only in accordance with its ‘Getting Started User Guide’ and applicable law. 

d).   Customer Restrictions Customer may not (i) sell, resell, rent or lease the Service, (ii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (iii) interfere with or disrupt the integrity or performance of the Service, or (iv) attempt to gain unauthorized access to the Services or their related systems or networks; (v) reverse engineer the Service, (vi) remove or modify any proprietary marking or restrictive legends in the Service, or (vi) access the Service to build a competitive product or service, or copy any feature, function or graphic of the Service for competitive purposes.

3)    PAYMENT TERMS. Customer must pay all fees (US$) upon receipt of an invoice or through a credit card online. Customer is responsible for sales, use and other similar taxes. Actonia may temporarily suspend or terminate, or both, the Service if Customer’s payment on any invoice is more than 10 days past due.

a).   Credit Card Payments. If a credit card account is being used, Actonia may obtain pre-approval for an amount up to the amount of the order. Customer must pay for the Services online, and Actonia may charge its credit card for all purchases and for any additional amounts (including any taxes and late fees, as applicable) owed to Actonia. CUSTOMER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING ACTONIA WITH A VALID CREDIT CARD FOR PAYMENT WHICH THEY ARE AUTHORIZED TO USE. If Customer wants to designate a different credit card or use a bank account or if there is a change in Customer’s credit card status, Customer must change its information online in the account within the Service. If a Customer credit card changes or expires, or is revoked, disputed or not valid for any other reason, Actonia may suspend, terminate, or both (without liability) Customer’s use of the Services upon 5 days notice sent to Customer via email (using its email address in the Service).

4)    DISCLAIMER. THE SERVICE IS CONSTANTLY CHANGING BASED ON GENERAL CUSTOMER REQUIREMENTS, EVOLUTION OF THE TECHNOLOGY IN THE SERVICE AND OTHER BUSINESS AND TECHNICAL FACTORS. THE SERVICES IS PROVIDED AS IS AND ACTONIA DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE, NON-INFRINGING OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS SOME DATA WITHIN THE SERVICE MAY BE SOURCED FROM THIRD-PARTY SERVICES (INCLUDING WITHOUT LIMITATION, MAJESTIC SEO) AND IF ANY OF THOSE THIRD-PARTY SERVICES ARE PERMANENTLY UNAVAILABLE TO ACTONIA (OTHER THAN AS A RESULT OF THE ACT OR OMISSION OF CUSTOMER), THEN ACTONIA WILL MAKE REASONABLE COMMERCIAL EFFORTS TO SUBSTITUTE SUCH THIRD-PARTY SERVICES WITH SUBSTANTIALLY EQUIVALENT SERVICE.

5)    MUTUAL CONFIDENTIALITY.

a).   Definition of Confidential Information. Confidential Information means all information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Actonia’s Confidential Information includes the Services.

b).   Protection of Confidential Information. The Recipient must use the same degree of care to protect the Confidential Information and to protect it from disclosure to third-parties that it uses to protect its confidential information (in no event less than reasonable care) and not use any Confidential Information of Discloser for any purpose (other than within the scope of this agreement). The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c).   Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.

6)    PROPRIETARY RIGHTS. The software; web processes, visualizations, designs; and other technologies provided by Actonia as part of the Services are the proprietary property of Actonia and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Actonia. Actonia reserves all rights not expressly granted. Actonia may use during and after this agreement all aggregate non-identifiable data in the Services for purposes of enhancing the Services, technical support and other business purposes.  

7)    LIMITATION OF LIABILITY. TO THE MAXIMUM AMOUNT ALLOWED BY LAW, ACTONIA IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, AND ANTICIPATED COST SAVINGS) RELATING TO OR ARISING OUT OF THIS AGREEMENT. TO THE MAXIMUM AMOUNT ALLOWED BY LAW, ACTONIA’S TOTAL LIABILITY FOR RELATING TO OR ARISING OUT OF THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE GREATER OF THE AMOUNT PAID BY CUSTOMER WITHIN THE 6 MONTH PERIOD PRIOR TO THE EVENT WHICH GAVE RISE TO THE CLAIM OR $1,000.

8)    TERM, TERMINATION AND SUSPENSION OF SERVICE.

a).   Term. This agreement continues until all orders have expired or are earlier terminated under Section 8(b) of this agreement (Term). No refunds are provided for partial months upon non-renewal of an order.

b).   Mutual Termination for Material Breach. If either party is in breach of any material term of this agreement, the other party may terminate this agreement at the end of a written 15-day notice/cure period, if the breach has not been cured.

c).   Actions upon Termination. Upon termination of this agreement for any reason, Customer must pay Actonia for any unpaid amounts, and destroy or return all property of Actonia. Upon Actonia’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

d).   Download of Customer Provided Information. Before expiration of an order, Customer may download its Licensed Content to the extent allowed by functionality within the Service. After termination of an order, Actonia has no obligation to maintain any of the Licensed Content.

e).   Suspension of Service for Violations of Law. Actonia may immediately suspend the Services and remove applicable Licensed Content if it in good faith believes that, as part of using the Services, Customer may have violated a law. Actonia may try to contact Customer in advance, but it is not required to do so.

9)    ARBITRATION AND GOVERNING LAW.

a).   Law and Arbitration. Any dispute or claim between the parties arising out of or relating to this agreement, is governed by the laws of the State of Illinois excluding conflict of law principles and must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial or international rules of the American Arbitration Association. The arbitration must be held in Chicago, Illinois. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration is entitled to recover its attorneys’ fees and costs from the other party.

b).  Optional Arbitration for Claims Less than $7,000. Notwithstanding the foregoing, for any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $7,000, the party requesting relief may choose to resolve the dispute in a more cost-effective manner through binding non-appearance-based arbitration. If a party elects’ arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.

c).   Prohibition of Class and Representative Actions. Each party may bring claims against the other only on an individual party basis, and not as a plaintiff or class member in any purported class or representative action or proceeding. The arbitrator may not consolidate or join more than one party's claims and may not otherwise preside over any form of a consolidated, class or representative proceeding. 

10) THIRD PARTY LINKS. The Services may contain links to third-party websites (Linked Sites). The Linked Sites are not under Actonia’s control or owned by Actonia, and Actonia is not responsible for the content, images, software or other items on any Linked Site or site accessed through a Linked Site. The Linked Sites are provided only as a convenience, and the inclusion of any Linked Site does not imply any endorsement or approval of such site by Actonia.

11) MISCELLANEOUS OTHER TERMS. This agreement constitutes the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter.  No modification or waiver of any term of this agreement is effective unless both parties sign it or it is agreed to as part of an Actonia online contracting process.  Neither party may assign or transfer this agreement or an order to a third party, except that the agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party. The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Actonia rejects additional or conflicting terms of a form purchasing document. If there is an inconsistency between this agreement and an order, the order prevails. Any terms that by their nature survive termination or expiration of this agreement, will survive. Actonia is not liable for force majeure events or events beyond its reasonable control. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach. Actonia may use Customer's name and logo in customer lists and related promotional materials describing Customer as a customer of Actonia, which use must be in accordance with Customer’s trademark guidelines and policies.

 Last Updated June 1, 2020