Terms and Conditions of Purchase
These Terms and Conditions of Purchase (these “Terms and Conditions of Purchase”) sets forth your rights and responsibilities for purchases from TonicSiteShop.com and its sub-domains and affiliated sites. Please read these Terms and Conditions of Purchase carefully. This document constitutes a legally binding contract between Tonic Site Shop, LLC and other associated materials and sites linked hereto and operated or controlled by Tonic Site Shop, LLC (herein referred to as “Company”), and you regarding your purchase of website templates and digital products (herein referred to as the “Product”). Tonic Site Shop’s Terms and Conditions of Purchase, website Terms and Conditions, and the website Privacy Policy are collectively referred to herein as this “Agreement.” In the event of any conflict between these documents with respect to your purchase, these Terms and Conditions of Purchase shall prevail over the website Terms, which shall prevail over the Privacy Policy. By purchasing this product, you (herein referred to as “Client”) agree to the following terms as a condition of your participation in the Program.
THE SECTION BELOW TITLED “BINDING ARBITRATION” CONTAINS A BINDING ARBITRATION AGREEMENT. BECAUSE THIS SECTION AFFECTS YOUR LEGAL RIGHTS, WE ASK THAT YOU PLEASE READ THEM.
PAYMENT TERMS
At checkout, you may select a payment plan for your purchase to either pay in full or pay in installments. Because of the nature of delivery of digital products, you are responsible for payment in full for the purchase, regardless of use, dislike, or any other claim to cancel or discontinue payment. You may not dispute payments owed, cancel your credit card on file, or cease installment payments according to the selected payment plan.
A note about payment plans: there is a 7% markup for 2-month payment plans, and a 14% markup for 6-month payment plans. The reason for this markup is when payments are extended over time, it increases our financial risk and administrative overhead. There’s a longer period during which we must manage and track payments, and this extended timeframe inherently carries a higher risk of payment defaults or delays. These factors represent an increased liability for our company.
Should you select a payment plan and fail to remit payment, you will be liable for a ten percent (10%) accruing late fee per seven (7) days of outstanding of unresolved payment. Credit card chargebacks will be subject to a twenty percent (20%) additional fee. If unresolved after ten (10) days, you will be liable for collection costs, attorneys fees, and any other litigation or legal costs incurred to resolve your outstanding payment. We reserve the right to send you to collections for any outstanding payments owed under the terms of this Agreement. In the case of an outstanding balance or disputed charge, you will not only be responsible for accruing costs and fees, but will be banned from future purchases from us and our affiliates, and your license to use the product purchased will be revoked. Upon notice of revocation of your license to use the product, you will be given fourteen (14) days to remove any intellectual property and works owned by the Company. Further use of Tonic product(s) after revocation and without the Company’s authorization will be subject to copyright infringement action and fees at the discretion of the Company.
PRODUCT LICENSE
You are not permitted to share any Tonic Site Shop branded products that you have purchased with any other third party or attempt to copy or re-distribute the product and/or design elements in any way.
Each product license is for one use of the product, which is licensed directly to you for your singular personal or business use. You are not permitted to use the Company’s product on multiple websites if you have multiple businesses or personal uses, as each purchase is for a singular license to utilize the product. Any violation of this clause shall result in an immediate termination of your license to use the product and a fee equal to the cost of an approximate estimate of additional license(s) violated without authorization in addition to any attorney’s fees or other fees applicable, not as penalty, but as liquidated damages for this infringement of the Company’s intellectual property and violation of this Agreement.
NO REFUND POLICY
All digital products, websites, templates, downloads, and any other purchases made on this Site are non-refundable under any circumstances. Purchased products cannot be exchanged for other products.
INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for Your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
All digital products are protected by intellectual property rights and are not to be resold, repackaged, shared, or distributed without the written consent of the Company.
The Company does not tolerate any infringement, exploitation, or misappropriation of its copyrighted property by You or any other third-party entities. All of the products sold on the Company’s Site are protected by copyright and trademark laws, and the Company shall use all measures to assert and protect its rights in those products and prevent them from being used by unauthorized users.
LICENSE TO USE TONIC BRANDED PRODUCTS
Any and all purchases made on the Site for any Tonic Site Shop branded products do not constitute purchases for ownership over the Company’s products or services. Your purchase will not qualify as transferring any ownership rights, privileges, or abilities to exercise control over the product in a manner that exceeds the limited use you are permitted under these Terms. Any and all purchases made on the Site constitute the granting of a limited, non-transferable, non-sublicensable, non-exclusive license to use the products for their intended purposes. Any use that exceeds the intended use of the Company’s product shall result in the immediate revocation of this license to use the Company’s product, and You must immediately cease Your use of the product. All digital products are to be considered shipped and delivered upon completion of the purchasing process and access to the product being granted to You by the Company.
You are not permitted to make any copies of the Company’s branded products, provide access to it to any third parties, any persons, or entities other than Yourself, Your agents, and employees. You may not sublicense, distribute or pledge the Company’s products or any of the rights herein to any third party. Additionally, You will not use any third-party software, including any open-source software, in conjunction with any of the Company’s products, unless You ensure that such use does not cause the products to become subject to any third-party license applicable to such third party software or require the public disclosure or distribution of any other products or the licensing of any products, software, or material for the purpose of making derivative works. Finally, You shall not modify, translate, reverse engineer, decrypt, decompile, disassemble, create derivative works based on, or otherwise attempt to discover the Company’s source code or underlying ideas, techniques, or algorithms.
LICENSED IMAGES
All images that are included in any Tonic Site Shop products are either the Intellectual Property of the Company, or they are licensed intellectual property that the Company has licensed from third parties for use in its products. These licenses belong to the Company, and Your purchase of any Tonic Site Shop products does not constitute a purchase, lease, assignment, or transfer of any licenses to these images contained within the products. By accepting these terms and conditions, You understand and agree that You will not tamper with, sell, transfer, copy, modify, or otherwise edit any of the licensed images in the Tonic Site Shop products.
You understand that the Company has multiple Licensing Agreements with third parties who are providing these images to the Company for its products. These Licensing Agreements do not grant You any rights in these images, or any permissions otherwise to use the images except as expressly instructed by the Company for customizing Your Tonic Site Shop product in the manner so established by the Company. Any violation of the rights of either the Company’s rights or the third party licensors’ rights will be considered a breach of this Agreement.
You understand that if You do breach this provision, each violation will result in a charged fee of five thousand dollars ($5,000.00), as a fee and not a penalty, that You will be obligated to pay to the Company as liquidated damages for each violation of their licensed property. You will be required to immediately halt all use of all Tonic Site Shop products and will be responsible for all costs and expenses incurred by the Company in connection with the collection of this charged fee for violating the Company or third party licensors’ rights.
LICENSED FONTS
By using this Site, along with any Tonic Site Shop branded products, You understand and agree that You will be exposed to various fonts that are integrated into their software. These fonts represent licensed software packages from third party vendors that have entered into agreements with the Company to use their software in the Tonic Site Shop branded products. You are not entitled to in any way modify, copy, transfer, or otherwise make use of these fonts beyond their intended uses within the Tonic Site Shop products. You may not alter the Tonic Site Shop products in any way that would remove or otherwise compromise the fonts that are included in them in some way that would violate any of the rights held by the Company or of the third party licensors. You are only permitted to modify the fonts within the parameters of the Tonic Site Shop products customization features, and any unauthorized modifications that exceed these parameters will be considered a violation of this provision.
You understand that if You do breach this provision, each violation will result in a charged fee of five thousand dollars ($5,000.00), as a fee and not a penalty, that You will be obligated to pay to the Company as liquidated damages for each violation of their licensed property. You will be required to immediately halt all use of all Tonic Site Shop products and will be responsible for all costs and expenses incurred by the Company in connection with the collection of this charged fee for violating the Company or third party licensors’ rights.
PERMISSION TO USE WRITTEN COPY
The Company includes multiple examples of copy, writing, or text within the Tonic Site Shop branded products that they sell. When You purchase these products from the Company, You are granted permission to modify, edit, copy, or otherwise change the text that is contained within the Tonic Site Shop branded products. The Company recommends that You use the copy that is contained within the products as an example that You may use to inspire Your own words that You may want to use. You are responsible for making these edits and modifications to the copy when You purchase a product from the Company on its Site, and You understand that the Company is not responsible for assisting You or otherwise making any changes to the copy for You. Additionally, You understand that other purchasers may be utilizing the same copy.
TONIC SITE SHOP CREDIT
The Company strongly recommends that You include a credit to the Company in Your website footer when You use a Tonic Site Shop branded product. It is not mandatory, but the Company recognizes that customers who participate in crediting the Tonic Site Shop brand are valuable customers. No compensation will be granted for offering a credit to the Company, but You may be asked to participate in future marketing efforts by the Company that could use Your brand or image as part of the marketing effort by highlighting successful examples of the Company’s work. This credit does not guarantee Your participation in any future marketing campaigns of the Company, but it may elevate You in the Company’s consideration by highlighting Your previous endorsement of the Company’s brand.
EDITING AND UPDATING TONIC SITE SHOP PRODUCTS
The Company has produced the products and services on its Site for the purpose of providing You a template that You can customize to fit Your unique needs as a part of Your online brand and presence. You understand that You are responsible for editing the template once You have received it to ensure that it will function properly on Your website. The Company is not required to assist You in setting up the template once You have received it. You may contact the Company if You are experiencing any technical issues not of Your own creation, so that the Company may discover the issue and attempt to correct it if it is an issue inherent in the software. You are permitted to edit the template within the boundaries, parameters, and instructions that are built into the template. You are not permitted to edit the template beyond the established boundaries, and any attempt to do so will result in a violation of these terms and conditions and will void Your license to use the template.
USER GENERATED CONTRIBUTIONS
The Site may invite You to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide You with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Contributions”). Contributions may be viewable by other users of the Site and through third-party websites. As such, any Contributions You transmit may be treated as non-confidential and non-proprietary. When You create or make available any Contributions, You thereby represent and warrant that:
- The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
- You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Site, and other users of the Site to use Your Contributions in any manner contemplated by the Site and these Terms of Use.
- You have the written consent, release, and/or permission of each and every identifiable individual person in Your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Contributions in any manner contemplated by the Site and these Terms of Use.
- Your Contributions are not false, inaccurate, or misleading.
- Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
- Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
- Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
- Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
- Your Contributions do not violate any applicable law, regulation, or rule.
- Your Contributions do not violate the privacy or publicity rights of any third party.
- Your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
- Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
- Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
- Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.
Any use of the Site in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of Your rights to use the Site.
CONTRIBUTION LICENSE
By posting, sharing or submitting Your Contributions to any part of the Site, You automatically grant, and You represent and warrant that You have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, Your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur through any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of Your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images You provide. You waive all moral rights in Your Contributions, and You warrant that moral rights have not otherwise been asserted in Your Contributions.
We do not assert any ownership over Your Contributions. You retain full ownership of all of Your Contributions and any intellectual property rights or other proprietary rights associated with Your Contributions. We are not liable for any statements or representations in Your Contributions provided by You in any area on the Site. You are solely responsible for Your Contributions to the Site and You expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding Your Contributions.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Site; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. We have no obligation to monitor Your Contributions.
SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site (“Submissions”) provided by You to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to You. You hereby waive all moral rights to any such Submissions, and You hereby warrant that any such Submissions are original with You or that You have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in Your Submissions.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site without notice at any time. We will not be liable to You or any third party for any modification, price change, suspension, or discontinuance of the Site. It is Your responsibility to review this policy for any changes or updates to the “Last updated” date, and if such an update has occurred then to examine these terms and conditions for the newest provisions or modifications.
We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to You. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by Your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.
GOVERNING LAW
These Terms of Use and Your use of the Site are governed by and construed in accordance with the laws of the State of Virginia applicable to agreements made and to be entirely performed within the State of Virginia, without regard to its conflict of law principles.
DISPUTE RESOLUTION
Informal Negotiations
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms of Use (each a “Dispute” and collectively, the “Disputes”) brought by either You or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least
thirty (30) days before initiating any arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Binding Arbitration
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved through binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website: www.adr.org. Your arbitration fees and Your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Loudoun County, Virginia. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Loudoun County, Virginia, and the Parties hereby consent to and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) is excluded from these Terms of Use.
In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Restrictions
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; (c) any claim for outstanding payments owed, chargebacks, or other fees owed to the Company; and (d) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
CORRECTIONS
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
USER DATA
We will maintain certain data that You transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to Your use of the Site. Although we perform regular routine backups of data, You are solely responsible for all data that You transmit or that relates to any activity You have undertaken using the Site. You agree that we shall have no liability to You for any loss or corruption of any such data, and You hereby waive any right of action against us arising from any such loss or corruption of such data.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and You agree that all agreements, notices, disclosures, and other communications we provide to You electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, You can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
MISCELLANEOUS
These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between You and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment, or agency relationship created between You and us as a result of these Terms of Use or use of the Site. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses You may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.
The Company is not responsible for its delay of performance or inability to perform if performance is impossible, illegal, and/or inadvisable because of, for example, fire, riot, acts of God, acts of terrorism, war, epidemics, pandemics, contagions, and/or states of emergency or other similar events which are beyond the Company’s reasonable control.
CONTACT US
In order to resolve a complaint regarding the Site or to receive further information regarding the use of the Site, please contact us at:
Tonic Site Shop
Loudoun
Virginia
United States
info@tonicsiteshop.com
