Posted/Revised: July 28, 2017

TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.

These Terms of Service constitute an agreement by and between EVERYTHING CAPE  (“Vendor,” “We” or “Us”) and the individual, corporation, LLC, partnership, sole proprietorship, or other business entity agreeing to these Terms of Service (“Customer” or “You”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”).

1. ACCEPTANCE OF TERMS

We provide a collection of online resources, information, catalogs, and various email services available on or through our directory (referred to hereafter as “the Service”) to be used in connection with the marketing of goods and services to consumers (“Consumers”), all subject to the following Terms of Service (“ToS”). By logging into your account and using the Service in any way, you are agreeing to comply with the ToS as well as any posted rules, regulations or guidelines, which we may change from time to time. Should you object to any term or condition of the ToSU, any posted rules, regulations or guidelines, as may be subsequently amended, or become dissatisfied with the Service in any way, your only recourse is to immediately discontinue use of the Service.

2. AMENDMENT OF TERMS

We may amend this ToS from time to time by posting an amended version at our website and/or sending Customer written notice thereof. Written notice of an amendment to this ToS may be provided via email, a message on the dashboard or via other methods of written communication to Customer. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives us written notice of rejection of the amendment. If Customer rejects the amendment, Customer must discontinue use of the Service. Customer’s continued use of the Service following the Proposed Amendment Date will confirm Customer’s consent to the amendment of the ToS. Additionally, we may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version of either at the website, and such new version will become effective on the date it is posted.

3. CONTENT

You understand that all advertisements, postings, messages, text, files, images, photos, video, sounds, or other materials, which may including, among other things, logos, goods and service descriptions, goods and service photographs or videos, product catalogs and other content (“Content”) posted on, transmitted through, or linked from the Service are the sole responsibility of the person from whom such Content originated. More specifically, you are entirely responsible for each individual item of Content that you post, email or otherwise make available via the Service. Likewise, if you request our assistance to post Content, or if you imply consent that we may post Content on your behalf, either by written or oral means, or you fail to inform us that Content should be removed, you are responsible for the posting of such Content. You waive any and all claims against us of a right of publicity for your image or likeness throughout the world by posting any information or pictures of yourself on our directory. You understand that we do not control, and are not responsible for personal Content made available through the Service, and that by using the Service, you may be exposed to Content that is offensive, indecent, inaccurate, misleading, or otherwise objectionable.

When you post Content to the Service, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the Content on the Service. By posting Content to any part of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Content for any purpose on or in connection with the Service or the promotion thereof, to prepare derivative works of such Content, to incorporate into other works such Content, to grant and authorize sublicenses of the foregoing, and for use on affiliated websites, social media websites, picture hosting websites and all other websites. Furthermore, by posting Content to any public area of the Service, you automatically grant us all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the Content on the Service by any party for any purpose.

If another customer, user, member or the customer of any customer, user or member infringes on Customer’s intellectual property rights to material that Customer provides to, uploads to, or otherwise makes available through the Service, including but not limited to Customer’s domain name, ideas, content (including but not limited to videos, audio recordings, file attachments, and written text), business models, communications, or recipients, Customer agrees and acknowledges that we assume no liability, damages, interest, fault, and provides no warranty against such infringement. Further, Customer hereby waives any right to pursue any claim, demand, suit or proceeding against us in connection with such infringement. Further, Customer shall indemnify and hold harmless Vendor for any claims relating to or arising from such infringement.

Except as otherwise described in the Privacy Policy, as between you and us, any Content posted to, uploaded to or otherwise made available through the Service, will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with us is not a confidential, fiduciary, or other type of special relationship, and that your decision to post, upload or otherwise make available any Content does not place us in a position that is any different from the position held by members of the general public, including with regard to your Content. None of your Content will be subject to any obligation of confidence on the part of EVERYTHING CAPE, and we will not be liable for any use or disclosure of any Content you provide.

You agree that you will comply with the Acceptable Use Policy.

4. THIRD PARTY CONTENT, SITES, AND SERVICES

Content available through the Service may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of our directory, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole.

We make no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such site. Following links to any other websites is at your own risk.

Your interactions with organizations and/or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. We do not guarantee the quality, safety or legality of, any Content, the truth or accuracy of the descriptions of any goods or services offered for sale, the right of the sellers to sell or license any such goods or services, or the ability of any buyer to purchase any such goods or services. The Service is designed for experienced buyers accustomed to buying goods and services via the Internet.

You agree that you must evaluate, and bear all risks associated with, the use of any Content, that you may not rely on said Content, and that under no circumstances will we be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise made available via the Service. You acknowledge that we do not pre-screen or approve Content, but that we shall have the right (but not the obligation) in our sole discretion to refuse, delete or move any Content that is available via the Service, for violating the letter or spirit of this ToS, the Acceptable Use Policy or for any other reason.

Further, you agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any dealings between users of the Service. If there is a dispute between users of the Service, or between users and any third party, you understand and agree that we are under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby forever release us, our officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or our service.

5. NOTIFICATION OF CLAIMS OF INFRINGEMENT

If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please send a notice (“Notice”) to our agent for notice of claims of copyright or other intellectual property infringement by email to the following address: info@EverythingCape.com. Please include the following with your Notice: (a) the identity of the material on our directory that you claim is infringing, in sufficient detail so that we may locate it on the website; (b) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (c) your address, telephone number, and email address; (d) a statement by you declaring under penalty of perjury that (i) the above information in your Notice is accurate, and (ii) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner; and (e) your physical or electronic signature.

6. PRIVACY AND INFORMATION DISCLOSURE

Please review our Privacy Policy, which is incorporated by reference herein, as may be amended from time to time.

7. CONDUCT

Please review our Acceptable Use Policy, which is incorporated by reference herein, as may be amended from time to time.

8. POSTING AGENTS

A “Posting Agent” is a third-party agent, service, or intermediary that offers to post Content to the Service on behalf of others. You may not use a Posting Agent to post Content to the Service without our prior written consent. Posting Agents are prohibited to post Content on behalf of others, to cause Content to be so posted, or otherwise access the Service to facilitate posting Content on behalf of others, except with our prior written consent.

9. PAID POSTINGS

We may charge a fee to post Content in some areas of the Service. The fee is an access fee permitting Content to be posted in a designated area. Each party posting Content to the Service is responsible for said Content and compliance with the ToS. All fees paid will be non-refundable in the event that Content is removed from the Service for violating the ToS.  Fees collected for specific services, such as subscription services and advertising, are non-refundable unless otherwise stated in writing for a specific promotional program.

10. LIMITATIONS ON SERVICE

You acknowledge that we may establish limits concerning use of the Service, including the maximum number of days that Content will be retained by the Service, the maximum number and size of postings, email messages, or other Content that may be transmitted or stored by the Service, and the frequency with which you may access the Service. You agree that we have no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Service. You acknowledge that we may, any time to, modify or discontinue the Service (or any part thereof) with or without notice, and that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

11. ACCESS TO THE SERVICE

We grant you a limited, revocable, nonexclusive license to access the Service for your own personal use. This license does not include: (a) access to the Service by Posting Agents; or (b) any collection, aggregation, copying, duplication, display or derivative use of the Service nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by us. A limited exception to (b) is provided to general purpose internet search engines and non-commercial public archives that use such tools to gather information for the sole purpose of displaying hyperlinks to the Service, provided they each do so from a stable IP address or range of IP addresses using an easily identifiable agent and comply with our robots.txt file. “General purpose internet search engine” does not include a website or search engine or other service that specializes in classified listings or in any subset of classifieds listings such as decorative goods or furniture, or which is in the business of providing classified ad listing services.

We do not permit you to display on your website, or create a hyperlink on your website to, individual postings on the Service, without our prior written consent. However, you may create a hyperlink to the home page of the directory, so long as the link does not portray us, our employees, or its affiliates in a false, misleading, derogatory, or otherwise offensive matter.

We may offer various parts of the Service in RSS format so that users can embed individual feeds into a personal website or blog, or view postings through third party software news aggregators. We permit you to display, excerpt from, and link to the RSS feeds on your personal website or personal web blog, provided that (a) your use of the RSS feed is for personal, non-commercial purposes only, (b) each title is correctly linked back to the original post on the Service and redirects the user to the post when the user clicks on it, (c) you provide, adjacent to the RSS feed, proper attribution to “EVERYTHING CAPE” as the source, (d) your use or display does not suggest that we promote or endorse any third party causes, ideas, web sites, products or services, (e) you do not redistribute the RSS feed, and (f) your use does not overburden our systems. We maintain all rights in and to the Content of the RSS feeds and may terminate any RSS feed at any time.

Use of the Service beyond the scope of authorized access granted to you by us gives us the right to immediately terminate your license to use the Service. In order to collect, aggregate, copy, duplicate, display or make derivative use of the Service or any Content made available via the Service for other purposes (including commercial purposes) not stated herein, you must first obtain a written license from us.

You agree to take all reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. You will notify us immediately of any known or suspected unauthorized use of the Service or breach of its security and will use its best efforts to stop such breach.

Customer is responsible and liable for: (a) any use of the Service by any user authorized by Customer (each a “User”), including without limitation any conduct by a User that would violate the Acceptable Use Policy; and (b) any use of the Service through Customer’s account, whether authorized or unauthorized.

12. TERM AND TERMINATION OF SERVICE

You agree to follow this ToS until such time as your account is deactivated and/or your access to the Service is terminated.

You may request to deactivate your account and/or terminate your access to the Service at any time (a “Termination”). You can also choose to have your account terminated by selecting the cancellation feature on the dashboard. Termination will take effect upon the end of the last day of your billing cycle.

After you terminate your account, you will not be able to access or use the Service, access any of your personal information. You can open a new account at any time. If you terminate your account, we may still retain certain information associated with your account for analytical purposes and recordkeeping integrity, as well as to prevent fraud, collect any fees owed, enforce our terms and conditions, take actions we deem necessary to protect the integrity of our web site or our users, or take other actions otherwise permitted by law. In addition, if certain information has already been provided to third parties as described in this Privacy Policy, retention of that information will be subject to those third parties' policies.

You agree that we, in our sole discretion, have the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Service (or any part thereof), immediately and without notice, and remove and discard any Content within the Service, for any reason, including, without limitation, if we believe that you have acted inconsistently with the letter or spirit of the ToS. Further, you agree that we shall not be liable to you or any third-party for any termination of your access to the Service. Further, you agree not to attempt to use the Service after said termination. This Section shall survive termination.

Notwithstanding anything to the contrary above, you also agree that we, in our sole discretion, may deactivate your account and/or terminate your access to the Service, for any reason, and so long as you are not in violation of this ToS at such time, you will receive reimbursement of your membership fee on a prorated basis for the remaining portion of the billing cycle.

13. PROPRIETARY RIGHTS

The Service is protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Service is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of us. You further agree not to reproduce, duplicate or copy Content from the Service without our prior written consent, and agree to abide by any and all copyright notices displayed on the Service. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Service. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service. EVERYTHING CAPE, as well as certain other of the names, logos, and materials displayed on our website, constitute trademarks, trade names, service marks or logos (“Marks”) of us or our affiliates. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associate therewith remains with us or our affiliates.

Customer recognizes that the Service and its components are protected by copyright and other laws. Without limiting any of the foregoing, the look and feel of the Service is copyright ©2017 EVERYTHING CAPE. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without our prior written consent.

14. DISCLAIMER OF WARRANTIES

GENERALLY

FOR PURPOSES OF THIS DISCLAIMER OF WARRANTIES, THE TERM “WE” SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO EVERYTHING CAPE, officers, subsidiaries, affiliates, successors, assigns, directors, agents, service providers, suppliers and employees.

YOU AGREE THAT USE OF EVERYTHING CAPE AND THE SERVICE IS ENTIRELY AT YOUR OWN RISK. EVERYTHING CAPE AND THE SERVICE ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND.

ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.

TO THE FULLEST EXTENT PERMITTED BY LAW, EVERYTHING  CAPE DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF EVERYTHING CAPE AND THE SERVICE.

TO THE FULLEST EXTENT PERMITTED BY LAW, EVERYTHING CAPE DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH  EVERYTHING CAPE OR THE SERVICE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EVERYTHING CAPE, OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, some of the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.

TO CONSUMERS

TO ALL CONSUMERS OF EVERYTHING CAPE, TO THE FULLEST EXTENT PERMITTED BY LAW, EVERYTHING CAPE DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING (I) YOUR USE OF EVERYTHING CAPE, (II) CONCERNING YOUR ENGAGEMENT OF ANY CUSTOMER OF EVERYTHING CAPE FOR THE PROVISION OF ANY GOODS OR SERVICES, (III) FOR ANY ACTS, NEGLIGENCE, BREACH OF CONTRACT ENGAGED BY YOU OR BY ANY CUSTOMER OF EVERYTHING CAPE, (IV) FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON EVERYTHING CAPE OR THE SERVICE, OR (V) FOR GOODS OR SERVICES ACCESSED THROUGH ANY LINKS ON EVERYTHING CAPE OR THE SERVICE, INCLUDING WITHOUT LIMITATION, WARRANTY OF TITLE TO OR DELIVERY OF ANY GOOD OR SERVICE, ANY WARRANTY WITH RESPECT TO INTELLECTUAL PROPERTY RIGHTS IN ANY GOOD OR SERVICE, ANY WARRANTY THAT ANY GOOD OR SERVICE CONFORMS TO ITS DESCRIPTION OR THE COLORS, TEXTURE AND DETAIL SHOWN ON THE USER’S COMPUTER MONITOR.

TO CUSTOMERS

TO ALL CUSTOMERS, TO THE FULLEST EXTENT PERMITTED BY LAW, EVERYTHING CAPE DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING (I) YOUR USE OF EVERYTHING CAPE, (II) CONCERNING YOUR ENGAGEMENT BY ANY CONSUMER OF EVERYTHING CAPE FOR THE PROVISION OF ANY GOODS OR SERVICES, (III) FOR ANY ACTS, NEGLIGENCE, BREACH OF CONTRACT ENGAGED BY YOU OR BY ANY CONSUMER OF EVERYTHING CAPE, OR (IV) FOR SERVICES OR GOODS DELIVERED OR PERFORMED TO ANY CONSUMER OF EVERYTHING CAPE.

15. LIMITATIONS OF LIABILITY

GENERALLY

FOR PURPOSES OF THIS LIMITATIONS OF LIABILITY, THE TERM “WE” SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO EVERYTHING CAPE, officers, subsidiaries, affiliates, successors, assigns, directors, agents, service providers, suppliers and employees.

UNDER NO CIRCUMSTANCES SHALL EVERYTHING CAPE BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATING TO (I) ANY ASPECT OF YOUR USE OF EVERYTHING CAPE OR THE SERVICE, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF EVERYTHING CAPE OR THE SERVICE, (II) FROM INABILITY TO USE EVERYTHING CAPE OR THE SERVICE, (III) THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF EVERYTHING CAPE OR THE SERVICE, (IV) CONTENT, (V) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS, (VI) ERRORS OR OMISSIONS IN THE SERVICES, OR (VII) ANY DAMAGE TO ANY OF YOUR COMPUTERS, MOBILE DEVICES, OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OF FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH EVERYTHING CAPE OR THE SERVICE OR ANY LINKS ON EVERYTHING CAPE OR THE SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH EVERYTHING CAPE OR THE SERVICE OR ANY LINKS ON EVERYTHING CAPE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. 

THE LIABILITIES LIMITED BY THIS SECTION 16 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

If applicable law limits the application of the provisions of this Section 16, our liability will be limited to the maximum extent permissible.

Some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitation may not apply to you.

TO CONSUMERS

TO ALL CONSUMERS OF EVERYTHING CAPE, YOU AGREE AND ACKNOWLEDGE THAT WE do not provide, nor will WE provide, any service to or for you, nor ARE WE a party to any agreement which you may enter into with ANY CUSTOMER. If you engage the services of A CUSTOMER, all arrangements in such regard are solely between you and that CUSTOMER.

TO ALL CONSUMERS OF EVERYTHING CAPE, IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY REASON WHATSOEVER IN EXCESS OF THE AGGREGATE SUM OF TWENTY-FIVE DOLLARS ($25.00) IN CONNECTION WITH (I) YOUR USE OF EVERYTHING CAPE, (II) CONCERNING YOUR ENGAGEMENT OF ANY CUSTOMER OF EVERYTHING CAPE FOR THE PROVISION OF ANY GOODS OR SERVICES, (III) FOR ANY ACTS, NEGLIGENCE, BREACH OF CONTRACT ENGAGED BY YOU OR BY ANY CUSTOMER OF EVERYTHING CAPE, (IV) FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON EVERYTHING CAPEOR THE SERVICE, OR (V) FOR GOODS OR SERVICES ACCESSED THROUGH ANY LINKS ON EVERYTHING CAPE OR THE SERVICE.

TO CUSTOMERS

TO CUSTOMERS OF EVERYTHING CAPE, YOU AGREE AND ACKNOWLEDGE THAT WE ARE NOT a party to any agreement which you may enter into with ANY CONSUMER. If you ARE engageD BY A CONSUMER TO DELIVER GOODS AND/OR PERFORM SERVICES, all arrangements in such regard are solely between you and that CONSUMER.

TO CUSTOMERS OF EVERYTHING CAPE, IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY REASON WHATSOEVER IN EXCESS OF THE AGGREGATE SUM OF TWENTY-FIVE DOLLARS ($25.00) IN CONNECTION WITH (I) YOUR USE OF EVERYTHING CAPE, (II) CONCERNING YOUR ENGAGEMENT BY ANY CUSTOMER OF EVERYTHING CAPE FOR THE PROVISION OF ANY GOODS OR SERVICES, (III) FOR ANY ACTS, NEGLIGENCE, BREACH OF CONTRACT ENGAGED BY YOU OR BY ANY CUSTOMER OF EVERYTHING CAPE, OR (IV) FOR SERVICES OR GOODS DELIVERED OR PERFORMED TO ANY CONSUMER OF EVERYTHING CAPE.

16. INDEMNITY

Without limiting anything herein, you agree to indemnify and hold us, our officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, suppliers and employees, harmless from any claim or demand, including reasonable attorney fees and court costs, made by any third party due to or arising out of or related to (i) Content you submit, post or make available through the Service, (ii) your use of the Service, (iii) your violation of the ToS, (iv) your breach of any of the representations and warranties herein, (v) your violation of any rights of another, (vi)  unauthorized disclosure or exposure of personally identifiable information or other private information, (vii) infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service, (viii) the use of the Service to harasses, defame, or defraud a third party or violate the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising.

17. GENERAL INFORMATION

The ToS, and any additional terms to which you agree when using particular elements of the Service, constitutes the entire agreement between you and us and governs your use of the Service, superseding any prior agreement between you and us. Our failure to exercise or enforce any right or provision of the ToS shall not constitute a waiver of such right or provision. If any provision of the ToS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the ToS remain in full force and effect.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the ToS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

18. VIOLATION OF TERMS AND LIQUIDATED DAMAGES

Please report any violations of the ToS by sending an email to info@EverthingCape.com 

Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

You understand and agree that, because damages are often difficult to quantify, if it becomes necessary for us to pursue legal action to enforce the ToS, you will be liable to pay us the following amounts as liquidated damages, which you accept as reasonable estimates of our damages for the specified breaches of the ToS:

If you post a message that (i) impersonates any person or entity; (ii) falsely states or otherwise misrepresents your affiliation with a person or entity; or (iii) that includes personal or identifying information about another person without that person’s explicit consent, you agree to pay us one thousand dollars ($1,000) for each such message. This provision does not apply to messages that are lawful non-deceptive parodies of public figures.

If we establish limits on the frequency with which you may access the Service, or terminates your access to or use of the Service, you agree to pay us one hundred dollars ($100) for each message posted in excess of such limits or for each day on which you access the Service in excess of such limits, whichever is higher.

If you send unsolicited email advertisements to info@EverythingCape.com email addresses or through our computer systems, you agree to pay us one thousand dollars ($1,000) for each such email.

If you post Content in violation of the ToS, other than as described above, you agree to pay us one hundred dollars ($100) for each item of Content posted. In its sole discretion, we may elect to issue a warning before assessing damages.

If you are a Posting Agent that uses the Service in violation of the ToS, in addition to any liquidated damages specified above, you agree to pay us one hundred dollars ($100) for each and every item of Content posted in violation of the ToS. A Posting Agent will also be deemed an agent of the party engaging the Posting Agent to access the Service (the “Principal”), and the Principal (by engaging the Posting Agent in violation of the ToS) agrees to pay us an additional one hundred dollars ($100) for each item of Content posted by the Posting Agent on behalf of the principal in violation of the ToS.

If you aggregate, display, copy, duplicate, reproduce, or otherwise exploit for any purpose any Content (except for your own Content) in violation of the ToS without our prior written consent, you agree to pay us five thousand dollars ($5,000) for each instance in which you engage in such conduct.

Notwithstanding any other provision of the ToS, we retain the right to seek the remedy of specific performance of any term contained in the ToS, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in the ToS, or to seek to recover damages arising from or relating to a violation of this ToS or any combination thereof.

19. FEEDBACK

We welcome your questions and comments. Please send them to info@EverythingCape.com

We have not agreed to and we do not agree to treat as confidential any Feedback (as defined below) that you provide to us, and nothing in this ToS or in the parties’ dealings will restrict our right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of our products or services.)

20. FEES

You are purchasing access to the Service on a subscription basis (a “Subscription”) and you agree to pay a subscription fee (“Subscription Fee”) until such time as your account has been deactivated and/or your access to the Service terminated (such period is referred to as the “Subscription Term”). A Subscription automatically renews until cancelled by you. We will notify you if the price of your Subscription increases and, if required, seek your consent to continue. You will be charged no more than 24 hours prior to the start of the then-current Subscription Term.

We may offer a free trial to the Service prior to charging your payment method. If we offer a free trial to the Service and you decide to unsubscribe before we charge your payment method, you are required to cancel the subscription before the free trial period ends. If you do not cancel the subscription before the free trial period ends, you will be billed for the plan starting on the day the free trial period ends. We will not be required to refund the Subscription Fee under any circumstances.

You must enter a valid credit card when you purchase your plan and you must always provide us with a valid credit card to be on file in order to keep the Service active. If you do not have a valid credit card on file with us, we may deactivate your account and/or terminate your access to the Service. All fees and charges incurred in connection with your account will be billed to the credit card designated during the registration process or subsequently designated by you to us. If you want to designate a different card or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Service or the EVERYTHING CAPE website using your username and password without your authorization, you may change your credit card details by contacting info@EverythingCape.com and requesting an update to your credit card on file.

The Service is billed in advance on a monthly, yearly, or otherwise defined term or period of time basis and is non-refundable. The specific period of time is based on the plan that you select and will be specified in your order. Unless specifically stated herein, under no circumstances will we give Customer a refund or credit, including but not limited to instances where Customer does not use the Service or uses the Service during a portion, but not the entirety, of the Subscription Term.

We may charge you one-time (i) set up fee to set up your account, and/or (ii) custom feature fees depending on which options and/or features that you select. All fees are specified in your order and are subject to change. We will notify you if the price of any fee increases and, if required, seek your consent to continue.

Promotions, discounts, deals, and/or additional offers may not be applied after a sale or transaction has been completed.

All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. In the event that you are delinquent in making payments to us, we may bill you on a daily basis until payment in full of all amounts due to us have been made. You may incur fees, expenses and/or charges relating to or arising from our daily billing practice. You hereby agree and acknowledge that you shall be responsible for any and all fees and/or expenses charged by your merchant processor and/or bank, including but not limited to any and all overdraft fees or expenses, whether or not the same relates to or arises from this daily billing practice.

For any upgrade or downgrade in your account, your credit card that you provided will automatically be charged the new rate on your next billing cycle. An upgrade to any higher priced plan will immediately bill you for the prorated difference for the current billing cycle. If a plan downgrade causes a credit to your account, this credit will be used toward your next billing(s). This credit will not be refunded. Downgrading your account may cause the loss of features of the Service. Customer agrees and acknowledges that we are not liable for any such loss.

21. TRANSFER

Customer may transfer ownership an account. Customer must send an email to info@EverythingCape.com to request the transfer of the ownership of an account. In order to prevent fraudulent or accidental ownership transfers, additional security information may be required by us to process the transfer of the ownership of an account. If required by us, until such security information is provided to us to verify your identity, the account will not be transferred to another party. A one-time transfer fee may apply to transfer ownership of an account to a new party. Prior to completing the transfer, we will notify you of the any one-time transfer fee. The account will not be transferred to another party until payment of all outstanding fees, including any one-time transfer fee, have been made in full. After the transfer has been completed, Customer will no longer be responsible for paying any fees in connection with the transferred account. Instead, the new owner will be responsible as of the date that the transfer has been completed.

22. NOTICES

We may send notices pursuant to the email addresses provided by you, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this ToS to info@EverythingCape.com, and such notices will be deemed received 72 hours after they are sent.

23. FORCE MAJEURE

No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this ToS to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

24. SEVERABILITY

To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this ToS invalid or otherwise unenforceable in any respect. In the event that a provision of this ToS is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this ToS will continue in full force and effect.

25. NO WAIVER

Neither party will be deemed to have waived any of its rights under this ToS by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this ToS will constitute a waiver of any other breach of this ToS.

26. CHOICE OF LAW & JURISDICTION

This ToS and all claims arising out of or related to this ToS will be governed solely by the internal laws of the State in which our principal office is located, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts located in the County and State in which our principal office is located. This Section 27 governs all claims arising out of or related to this ToS, including without limitation tort claims.

27. CONFLICTS

In the event of any conflict between this ToS and any policy posted online by us, including without limitation the Acceptable Use Policy or Privacy Policy, the terms of this ToS will govern.

28. ENTIRE AGREEMENT

This ToS sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.