Terms of Service
TERMS OF SERVICES
FOR TEXT USERS (CUSTOMERS)
THIS WEBSITE WITH ALL ITS APPLICATIONS IS AN ONLINE SERVICE PLATFORM OWNED AND OPEARATED BY Xcellimark.com (‘Site’).
PLEASE READ THESE GENERAL TERMS AND CONDITIONS OF SERVICES (“Terms Of Services”) CAREFULLY BEFORE USING THIS Site OR ANY SERVICES OFFERED BY THIS Site.
By using this Site or goods and services offered by this Site, or printing, downloading, or otherwise using any service from this Site, or registering or becoming a member of this Site, you signify your assent to and agree with these Terms Of Services. If you do not agree to all of these Terms Of Services, please do not use or register with this Site.
I. Nature of this Site
1. This Site offers a platform for people who need new and original texts, lyrics or articles concerning certain topics, themes, matters or issues. Such text users (customers) may order through this Site from authors new and original texts, articles etc. that will reflect the needs of the customer.
2. As for our disclaimer of warranty and our limitation of liability, please carefully read Sections XIV. and XV. of these Terms Of Services.
II. Updates and Revisions of our Terms Of Services
This Site may revise and update its Terms Of Services at any time without notice by posting such revised or updated Terms Of Services on or at this Site. Any changes to these Terms Of Services will become effective upon posting such revisions or updates. You are required to periodically check our Terms Of Services for any changes, if you continuously use this Site. Your continued usage of this Site or any of its goods and services will mean that you accept those changes.
III. Access to this Site; registration
1. To access this Site or some of the content it offers or provides you with, you need to first register with this Site and provide us with certain registration data (name, address, e-mail address, etc.) or other information. Such a registration is in particular necessary if you as a text user (customer) want to order new and original texts etc. from authors through this Site.
2. After registration we will verify the e-mail address you provided us with and open a customer account on this Site for you.
3. The registration data or other information you provide us with MUST be accurate, current, and complete. If this turns out not to be the case, this Site has the unconditional right to refuse you further access to this Site or any of its content or services, and to terminate or suspend your access to or membership with this Site at any time.
4. You have in no way a right to be registered with this Site. It is left to our sole discretion, if we want to accept the application by a customer or any other applicant to be registered with this Site. We will terminate your registration or membership with this Site according to our own discretion.
5. All service to you will end at the latest when this Site ceases to exist or to operate.
IV. Ordering texts and articles
1. Via OpenOrder
Via the customer menu on this Site you may order certain texts or articles according to certain categories / topics / themes / issues etc. (‘OpenOrder’). You are also free to decide about the categories / topics / themes / issues etc. of the text or article. In your OpenOrder you may indicate the approximate number of words that the text or article should have and make a decision about the quality degree of the text or article. We will forward your OpenOrder to the authors. You have no right that we will successfully find you an author, even though we will try to do so.
2. Via DirectOrder
Via the customer menu on this Site you may also order certain texts or articles from a specific author you already had contact with or who perfectly fits to your criteria (‘DirectOrder’). In your DirectOrder to the specific author you may indicate the approximate number of words that the text or article should have and make a decision about the quality degree of the text or article. You are also free to decide about the categories / topics / themes / issues etc. of the text or article. We will forward then your DirectOrder to the particular author. You have no right that the particular author will then actually accept your order. In case of rejection your order has failed.
3. Each order (OpenOrder or DirectOrder) you submit to us must not infringe upon rights of third persons, in particular copyrights, moral rights, trademarks and service marks, etc. Also, each order (OpenOrder or DirectOrder) you submit to us must not be pornographic, obscene, slanderous, libelous, or in any way degrading to human nature.
4. In case of violation we will have the right to close your account, terminate your membership and deny you further access to our Site.
V. Delivery of the ordered text or article: Approval / Rejection by the customer
1. A customer may approve of or reject the actually delivered text or article. The customer may under certain criteria also ask for improvements of the delivered text or article.
2. A rejection by the customer is only possible if the delivered text or article does not match with the criteria of the order. The rejection has to be specified in detail by the customer so that the author can improve the text / article accordingly. This Site will check the customer’s rejection request. This Site will accept a rejection only if (1) the rejection can be based on the terms of the original order or on circumstances which must have been known to the author, (2) the customer specifically describes why these terms / circumstances have not been met, and (3) the customer had given the author the opportunity to correct or improve the text / article according to section V. 3. In case the rejection request is unjustified, we will charge the customer’s account as if the text / article was approved by the customer. This Site has the final word on whether the customer’s rejection was (un)justified.
3. Instead of rejecting a delivered text or article, the customer may ask for improvements of the delivered text / article. In this case the customer has the obligation to specify in detail where exactly he/she sees a need for improvements, so that the author has the chance to improve the text / article accordingly. The customer has a right to ask for improvements only if (1) the request for improvements can be based on the terms of the original order or on circumstances which must have been known to the author, (2) the customer specifically describes why these terms / circumstances have not been met. This Site will give the author a specific amount of time to improve the text / article accordingly, in case the request for improvements is justified. In case the customer’s request for improvements was unjustified, we will charge the customer’s account as if the text / article was approved by the customer. This Site has the final word on whether the customer’s request was (un)justified. We will forward the customer’s request to the author. The customer may then approve of or reject an improved text or article or ask for additional improvements according to the conditions as set out under V.
4. The customer has 72 hours to reject a delivered text or article or ask for improvements. If the customer does not reject the delivered text / article or asks for improvements within the 72 hours timeframe, this Site will irrevocably deem the text / article approved by the customer and charge the customer’s account accordingly.
VI. Grant of Rights to the customer
1. This Site grants and licenses to the customer the sole and exclusive right to publish, perform, display, reproduce, distribute, create derivative works and sell the delivered and approved text / article in any type of media, including, but not limited to, print and/or online media, in whole or in part, via all electronic, online, or any other media, now known and hereafter developed, throughout the world.
2. The customer does not have the right to call himself/herself the author of the text/article. The customer can only place his name on the article with the express written consent of the original author.
3. Until a text / article is (1) approved or deemed approved, and (2) entirely paid by the customer, the customer has no rights whatsoever in the text / article. All violations of the customer will be enforced by this Site.
1. For each approved or deemed approved text or article we will charge the customer’s account with a license fee according to our payment schedule.
VIII. No luring away of authors
The customer has no right to directly contact authors other than through this Site. We provide a messaging system which enables customers to directly contact a specific author, if needed. Every violation of this principle under VIII. will be deemed a violation of these Terms of Services by the customer. Legal rights will be enforced against the customer accordingly.
IX. No unauthorized copying of content of this Site
By using this Site you agree to prevent any unauthorized copying of this Site, or any of the content contained therein. You represent and warrant that you will not illegally download, copy, or redistribute any of the content appearing on this Site. You will be obligated to immediately destroy any information or content you have illegally downloaded, printed or otherwise copied from this Site.
X. Third Party Fees
You acknowledge that access to this Site may involve third party fees, such as Internet service provider or airtime charges. You are solely responsible for these fees. In addition, you must provide and are responsible for all equipment necessary to access and use this Site.
XI. Links and third-party advertising
This Site contains or may contain links to other websites, including third-party advertising. We want to highlight that we are not responsible or liable for such other websites or for their Terms Of Services. We do not screen or endorse such other websites. This Site expressly disclaims any liability, directly or indirectly, for any damages whatsoever incurred by any user in connection with the use of any website, the access to which was found through this Site. Please read these Terms Of Services of each and every of such other websites carefully to find out how these other websites offer and condition their goods and services. If you decide to access any such other websites, you do so entirely at your own risk.
XII. Usernames and Passwords
If a username and a password are given to you by this Site, they shall remain the sole and exclusive property of this Site and are issued to you only in the form of a revocable license. You are required to keep the username and password confidential.
XIII. Copyright and Trademark Protection
1. Copyright Protection
All works and content included, contained or offered on this Site, in particular all literary works, pictorial and graphical works, photographs, images, video and audio clips, audiovisual works, music, button icons and other icons, streaming files and other data, animation or graphics, or any form of software files in object code or source code format are the property of the owners of this Site or their content suppliers and are protected by national and international copyright laws. The aforementioned copyright protection also refers to compilations or all forms of alteration of all content on this Site. We will report and prosecute offenders of our copyrights to the fullest extent of applicable law.
2. Trademark Protection
All logos and other trademarks and service marks which you may find on this Site may be trademark protected by national and international trademark and service mark laws. These trademarks and service marks may not be used publicly except with express written permission from the owner of these trademarks and service marks. You are not allowed to do anything which may cause confusion among consumers with respect to the aforementioned trademarks and service marks.
XIV. Disclaimer of Warranty
THE SERVICE OF THIS Site AND ALL MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN ‘AS IS, AS AVAILABLE’ BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS, TITLE, OR NON-INFRINGEMENT OTHER THAN THOSE WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW IN YOUR JURISDICTION. YOU EXPRESSLY AGREE THAT USE OF THIS Site OR ANY OF THE MATERIALS CONTAINED THEREIN IS AT YOUR DISCRETION AND AT YOUR OWN AND SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THIS Site OR THE EMPLOYEES OR AFFILIATES OF THIS Site SHALL CREATE OR IMPLY A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF LIABILITY OF THE OWNERS OF THIS Site. THIS Site MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT ANY OTHER WEBSITE WHICH YOU MAY ACCESS THROUGH THIS Site. WHEN YOU ACCESS THROUGH THIS Site ANOTHER WEBSITE, PLEASE BE AWARE THAT IT IS COMPLETELY INDEPENDENT; THIS Site HAS NO CONTROL OVER THE CONTENT ON THAT OTHER WEBSITE. THIS Site IS NOT RESPONSIBLE TO YOU FOR ANY TRANSMISSION PROBLEMS OF DOWNLOADED OR OTHERWISE USED CONTENT OF THIS Site OR ANY FORM OF WEBSITE DOWNTIME. THIS Site DOES NOT WARRANT THAT THIS Site WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT DEFECTS IN OR ON THIS Site WILL BE CORRECTED. YOU ALSO ACKNOWLEDGE AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF MATERIAL OR DATA WHICH YOU MAY FIND IN OR ON THIS Site.
XV. Limitation of Liability
1. IN NO EVENT WILL THIS Site OR ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS AFFILIATES, AND THE ASSIGNS OF SAME BE LIABLE TO YOU, OR ANY OTHER THIRD PARTY FOR
- ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL, DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR GOODWILL, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE, ARISING OUT OF THE USE OF OR INABILITY TO USE THIS Site, THE MATERIALS OR ANY INFORMATION, OR TRANSACTIONS PROVIDED OR OFFERED ON THIS Site OR DOWNLOADED FROM THIS Site, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF THIS Site OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR
- ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR ON THIS Site, THE MATERIALS AND/OR LISTINGS OR INFORMATION DOWNLOADED, PROVIDED, OR OFFERED THROUGH THIS Site.
BECAUSE SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THIS Site’s LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL THIS Site’s MAXIMUM TOTAL AGGREGRATE LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU FOR THE SERVICES THIS Site IN ANY FORM FOR A PERIOD OF NO MORE THAN SIX (6) MONTHS STARTING FROM THE ACCRUAL OF THE APPLICABLE CAUSE OR CAUSES OF ACTION.
2. THIS Site IS ONLY A PLATFORM. THIS Site OR ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS AFFILIATES, AND THE ASSIGNS OF SAME ARE IN NO WAY RESPONSIBLE FOR THE CONTENT OF THE TEXTS / ARTICLES OF THE AUTHOR(S). THE AUTHOR(S) OF THE ORDERED AND THEN DELIVERED TEXT / ARTICLE IS SOLELY RESPONSIBLE FOR SAID TEXT / ARTICLE IN CASE HIS/HER TEXT OR ARTICLES VIOLATES THE RIGHTS OF THIRD PERSONS. ALSO, EACH AUTHOR IS SOLELY RESPONSIBLE FOR THE QUALITY, ACCURACY AND LEGALITY OF HIS/HER TEXTS OR ARTICLES. WE EXPLICITLY WANT TO HIGHLIGHT THAT BOTH THE AUTHOR AND THE CUSTOMER SHALL ALWAYS BE AWARE OF AND ABIDE BY THE FTC-RULES, IN PARTICULAR, WITHOUT LIMITATION, “THE GUIDES CONCERNING THE USE OF ENDORSEMENTS AND TESTIMONIALS IN ADVERTISING” (FEDERAL TRADE COMMISSION 16 CFR Part 255) WHICH, FOR EXAMPLE, CAN BE FOUND ON THE WEBSITE OF THE FEDERAL TRADE COMMISSION (see www.ftc.gov).
3. THIS Site OR ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS AFFILIATES, AND THE ASSIGNS OF SAME ARE IN NO WAY RESPONSIBLE FOR THIRD-PARTY SERVICES OFFERED ON OR USED BY THIS Site. THE RESPECTIVE THIRD PARTY, FOR EXAMPLE, PAYMENT SYSTEMS, ETC. IS SOLELY RESPONSIBLE FOR ITS OWN SERVICES. WE DO NOT WARRANT OR REPRESENT ANY OF ITS SERVICES IN ANY WAY OR FORM.
You agree to defend, indemnify, and hold harmless this Site, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, liabilities, and other costs, including, without limitation, reasonable legal, attorneys’ and accounting fees, reasonably incurred in the defense of any claim or suit arising out of or otherwise related to these Terms Of Services, including, without limitation, any breach by you of these Terms Of Services. This Site will promptly notify you by e-mail of any such claim or suit, and cooperate fully, at your expense, in the defense of such claim or suit. This Site may participate in the defense of such claim or defense at its own expense, and choose its own attorney or other legal counsel, but is not forced or obligated to do so.
XVII. Force Majeure
This Site is and shall not be responsible or liable for any failure to perform due to unforeseen circumstances or to causes beyond this Site’s reasonable control, including but not limited to:
- acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters;
- war, riot, arson, embargoes, acts of civil or military authority, or terrorism;
- fiber cuts;
- strikes, or shortages in transportation, facilities, fuel, energy, labor or materials;
- failure of the telecommunications or information services infrastructure; and
- hacking, SPAM, or any failure of a computer, server or software.
XVIII. No Agency Relationship
Nothing in these Terms Of Services shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture or formal business entity of any kind between the author and the owner of this Site. The rights and obligations of the parties shall be limited to those expressly set forth herein.
XIX. Termination of Membership
Without limiting other remedies, this Site may issue a warning or terminate your access to this Site at any time, with or without advance notice or permission, if
- We believe that you have breached any material term of these Terms Of Services;
- We are unable to verify or authenticate any information you provide to us;
- We decide to stop operating this Site entirely or parts thereof.
You agree and acknowledge that neither this Site nor any third party acting on our behalf shall be responsible or liable to you for any termination of your membership or access to this Site. After termination by us, re-registration of you as a user of or on this Site is strictly forbidden. This Site and its affiliates disclaim any and all liability or responsibility arising from fraudulent entry and use of this Site. In case of fraud, we will take all necessary and appropriate actions under applicable federal, state, and international laws.
Any notice required to be given under these Terms Of Services may be provided by e-mail to a functioning e-mail address of the party to be noticed, by a general posting on this Site, or personal delivery by commercial carrier such as FedEx, DHL, or Airborne. Notices by you to us shall be given by e-mail or other electronic messages unless otherwise specified in these Terms Of Services. Any correctly addressed notice to you that is refused, unclaimed, or undeliverable, because of an act or omission of you shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, fax machine, e-mail server, or overnight delivery service.
XXI. Exclusion of certain international provisions
The owner of this Site and you agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms Of Services.
XXII. Rights to Injunctive Relief
This Site and you acknowledge and agree that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach of these Terms Of Services, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
XXIII. Attorney’s Fees
In the event any party (you or this Site) shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce these Terms Of Services or issues relating thereto, including without limitation claimed breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available damages or other relief, its reasonable attorney’s fees and costs incurred in connection therewith, including attorney’s fees incurred on appeal.
XXIV. No Assignment
Neither these Terms Of Services nor any rights or membership granted to you hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.
If any provision of these Terms Of Services shall be held to be invalid or unenforceable for any reason, or any portion thereof, the remaining provisions shall continue to be valid and enforceable to the maximum extent permissible and the remainder of these Terms Of Services will continue in full force and effect.
XXVI. No Waiver
Failure by either party to enforce any provision of these Terms Of Services will not be deemed a waiver of future enforcement of that or any other provision. No waiver of one breach shall constitute a waiver of subsequent breaches of the same or of a different nature.
Section and subsection headings of these Terms Of Services are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
XXVIII. Entire Agreement
These Terms Of Services constitute the entire agreement between this Site and you with respect to your access and use of this Site and the content contained therein, and your membership with this Site, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of these Terms Of Services shall be binding unless in writing and signed by both parties. You acknowledge, represent and warrant that you have read these Terms Of Services and agree to be bound by them as part of and in consideration of using this Site and, if you have become a member of this Site, of your membership.
XXIX. Consumer Rights Information – California Residents Only
This Section applies only to Californian residents. In compliance with Section 1789 of the California Civil Code, please note the following:
Name of Service Provider:
1211 State Road 436, Suite 101, Casselberry, FL 32707
Contact Information: Content Support
Users who wish to gain access to the members-only section of this Site must be a member in good standing. This Site posts the current membership fees for this Site prior to the registration page for this Site. This Site reserves the right to change the membership fees at any time. At this time there are no membership fees for this Site. Users may contact this Site at: Content Support in order to resolve any billing disputes or to receive further information about this Site.
XXX. Complaints – California Residents
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.