These terms of service (“Terms”) are a legal agreement between you, either an individual or a single legal entity (“You” or “you”), and Thomas Hoefter, which operates the CMS Commander online services. These Terms govern your use of any CMS Commander online services (“Services”), the cmscommander.com website (“Site”), the client software distributed with this Agreement and any other software provided by CMS Commander, including any updates and any accompanying written documentation (“Software”). Collectively, the Software, the Site and the Services may be referred to as the “Products.” By clicking the “I AGREE” or similar button, or using any Products, you agree to these Terms. If you do not agree to these Terms, then do not indicate acceptance and do not use the Products. If you agree to these Terms on behalf of a legal entity, you represent that you have the authority to bind that legal entity to these Terms.
You must register with CMS Commander to use the Services, and you agree to keep your registration information accurate, complete and up-to-date as long as you continue to use the Services. CMS Commander offers a free account with limited functionality (“Free Account”) and several paid accounts offering feature enhancements (“Paid Accounts”).
If you sign-up for a Paid Account, you agree to pay the fixed subscription and variable usage-based fees, if any, for the account type you have selected and agree to any applicable restrictions and quotas, including the number of websites you are allowed to integrate with our Products. If you use a credit card for payment, you authorize CMS Commander to automatically renew your subscription and charge the then-current renewal fees to the credit card associated with your account unless you notify CMS Commander in advance that you do not want your subscription renewed. You may cancel your subscription prior to the next billing date to avoid future charges. Service will continue until the end of the current billing period, but no service fees will be refunded.
CMS Commander offers refunds on a case-by-case basis only. Refunds will not be issued for Products already used. If you are interested in a refund, contact CMS Commander immediately to avoid additional fees. Refunds are prorated based upon the number of unused days of service that Products were used for that monthly period. If your Paid Account is in violation of these Terms, refunds will not be issued.
You are responsible for keeping your passwords secure, and you agree not to disclose your passwords to any third party. You are solely responsible for any activity that occurs under your user names and accounts, including any sub-accounts. You must notify CMS Commander immediately of any unauthorized use of your accounts or any other security breach related to the Service. If CMS Commander determines that a security breach has occurred or is likely to occur, CMS Commander may temporarily suspend your accounts and require you to change your user names and passwords.
Use of Services
Subject to these Terms, CMS Commander grants you a limited, non-exclusive, non-transferable and revocable license to access the Site and use the Services and Software. You acknowledge that certain third party code may be provided with the Software and that the license terms accompanying that code will govern its use.
You acknowledge that CMS Commander or third parties own all right, title and interest in and to the Products, including all intellectual property rights. Except for the license granted in these Terms, CMS Commander and its licensors retain all rights in the Products, and no implied licenses are granted to you.
You specifically agree that you will not, nor will you permit another person to sublicense, lease, rent, loan, transfer or distribute any portion of the Products unless given permission by CMS Commander; modify, adapt, translate or create derivative works from the Products unless given permission by CMS Commander; decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products or remove, obscure, or alter any trademark, copyright or other proprietary rights notices displayed in the Software or on the Site.
Compliance with Laws & Acceptable Use
You are solely responsible for your conduct related to the Service and any backup data you store on the Service. You specifically agree that you will not use the Products to violate any laws or regulations, infringe the intellectual property or other rights of third parties or transmit any material that contains viruses or other harmful computer code or files.
Intellectual Property Protection
CMS Commander respects the intellectual property of others and requires that users of the Service do the same. When you use the Products, you may not upload, store, share, display, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. In appropriate circumstances, CMS Commander will terminate the accounts of repeat infringers.
This indemnity obligation will survive the termination or expiration of your account and these Terms. You agree to defend, indemnify, and hold CMS Commander, its suppliers, resellers, partners and their respective affiliates harmless from and against any claims, liabilities, damages, losses and expenses, including reasonable attorney fees and costs, in connection with your use of the Products; your violation of these Terms; your violation of any third party right, including any intellectual property right; or any claim that use of your backup data caused damage to a third party.
Changes to The Service & Terms
CMS Commander reserves the right at any time to modify, suspend, or discontinue providing the Service, in whole or in part, without notice. While not obligated to do so, CMS Commander will use commercially reasonable efforts to notify you of any such action by sending you an e-mail, an in-client message or by posting relevant information on the Site. CMS Commander reserves the right to modify these Terms at any time, and each such modification will be effective upon posting on the Site. All material modifications will apply prospectively only. Your continued use of any Products following any such modification constitutes your agreement to be bound by the modified Terms. To stay informed of any changes, please review the most current version of these Terms posted on the Site. If you do not agree to be bound by these Terms, you must stop using the Products immediately.
Term & Termination
These Terms, and any posted revisions, remain in effect as long as you continue to maintain an account or use the Services. You may terminate your account at any time, for any reason, by following the instructions on the Site and discontinuing use of the Products. If you have a Free Account, CMS Commander may terminate your account and these Terms immediately and without notice if your computer fails to access the Services for more than thirty (30) days or you fail to comply with these Terms. If you have a Paid Account, CMS Commander may terminate your account and these Terms immediately and without notice if you fail to renew your subscription, fail to pay any fees or invoices after ten days when due, or otherwise fail to comply with these Terms. On termination or expiration of your account or these Terms, you will no longer have the right to continue to use the Software and the Services. Also, you specifically agree that CMS Commander has no obligation to provide you or anyone else with a copy of your data and may automatically purge your data from CMS Commander systems.
Disclaimer of Warranties
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU. THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU. YOU SPECIFICALLY AGREE THAT YOUR USE OF THE PRODUCTS IS AT YOUR SOLE RISK, AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CMS COMMANDER, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, CMS COMMANDER, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES MAKE NO WARRANTY THAT (A) THE PRODUCTS WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE PRODUCTS WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE PRODUCTS WILL BE ACCURATE OR RELIABLE; AND (D) ANY DEFECTS OR ERRORS IN THE PRODUCTS WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE PRODUCTS ARE NOT INTENDED OR SUITABLE FOR USE IN APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
Limitation of Liability
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU. YOU SPECIFICALLY AGREE THAT CMS COMMANDER, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY YOU ARE SEEKING DAMAGES AGAINST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR INABILITY TO USE THE PRODUCTS OR IN ANY WAY RELATING TO THE PRODUCTS. IF YOU HAVE A PAID ACCOUNT YOU AGREE THAT THE AGGREGATE LIABILITY OF CMS COMMANDER, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE PRODUCTS IS LIMITED TO THE AMOUNT PAID FOR THAT ACCOUNT DURING THE TWO (2) YEAR PERIOD BEFORE THE RELEVANT CLAIM. IF YOU HAVE A FREE ACCOUNT, YOU AGREE THAT THE AGGREGATE LIABILITY OF CMS COMMANDER, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE PRODUCTS IS LIMITED TO TWENTY US DOLLARS ($20). YOU SPECIFICALLY AGREE THAT THIS DAMAGES LIMITATION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CMS COMMANDER.
You acknowledge that use of the Products may be subject to the export and import laws of the United States and other countries. You agree to comply with all export and import laws and regulations. In particular, you acknowledge that the Products may not be exported or re-exported to any U.S. embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Products, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Products for any purposes prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. These Terms and the relationship between you and CMS Commander will be governed by the laws of Hessen, Germany, excluding its conflicts of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located in Hessen, Germany to resolve any dispute or claim arising from these Terms. As to intellectual property rights, you specifically agree that CMS Commander may file an action in any jurisdiction to protect or enforce its rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. These Terms constitute the entire agreement between you and CMS Commander and completely replace any prior agreements between you and CMS Commander in relation to the Products. If any part of these Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. The failure of CMS Commander to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these Terms, there will be no third-party beneficiaries to this agreement. You agree that any claim or cause of action related to these Terms or the use of the Products must be filed within one (1) year after the cause of action arose or be forever barred. You may not assign or transfer any of your rights or obligations under these Terms to a third party without the prior written consent of CMS Commander. CMS Commander may freely assign this Agreement.
If you have any questions or comments about these our Terms of Service as outlined above, you can contact us via email.
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