Last Updated: 4/9/21
IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION, AND WAIVER OF JURY TRIALS AND CLASS ACTIONS, GOVERNING DISPUTES ARISING FROM USE OF THE SERVICES, WHICH APPLY TO YOU IF YOUR COUNTRY OF RESIDENCE IN IS THE UNITED STATES OR YOUR COUNTRY OF RESIDENCE IS NOT THE UNITED STATES BUT YOU BRING ANY CLAIM AGAINST CAPTIV8, INC. IN THE UNITED STATES.IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
1. Use of this Website. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use this Website for your internal business purposes and only as expressly permitted in these Terms. You shall not use or permit use of the Website for any illegal purpose or in any manner inconsistent with the provisions of these Terms. Except as otherwise restricted by these Terms, Company grants you permission on a non-exclusive, non-transferable, limited basis to display, copy, and download content and materials on the Website provided that you: (a) retain all copyright and other proprietary notices on the content and materials; (b) use them solely for personal or internal, non-commercial use or in accordance with any applicable Services; and (c) do not modify them in any way. Any violation by you of the license provisions contained in this Section may result in the immediate termination of your right to use the Website, as well as potential liability for copyright infringement or other claims depending on the circumstances.
2. Ownership. The Website contains materials that are proprietary and are protected by copyright laws, trademarks, service marks, and other intellectual property laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Website. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, any improvements, design contributions, or derivative works thereto, and any knowledge or processed related thereto, including rights in and to all applications and registrations relating to the Website shall at all times be and remain the sole and exclusive property of Company. The trademarks, logos, taglines and service marks displayed on the Website (collectively, the “Trademarks”) are registered and unregistered Trademarks of Company and others. The Trademarks may not generally be used by you in any manner without Company’s prior express written consent.
3. User Content. The Services may enable you, or as a Creator you may be able to to submit, post, upload, or otherwise make available (collectively, “Post”) content on or through the Platform or your own social media accounts in connection with the Creator Services (“User Content”) that may or may not be viewable by other users. If you Post User Content, unless we indicate otherwise, you grant us a nonexclusive, royalty-free, and fully sublicensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such User Content throughout the world in any form, media, or technology now known or hereafter developed. As a Creator, you also grant us the right to access your social media accounts for the purpose of collecting campaign data for campaigns run on or through the Platform. You also permit any other user to view, copy, access, store, or reproduce such User Content for that user’s personal use. You grant us the right to use the name and other information about you that you submit in connection with such User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Post; (b) the User Content you Post is truthful and accurate; and (c) use of the User Content you Post does not violate these Terms or any applicable laws. You acknowledge and agree that Company and its designees may or may not, at Company’s discretion, pre-screen User Content before its appearance in the Services but that Company has no obligation to do so. You further acknowledge and agree that Company reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Services. Without limiting the foregoing, Company and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in Company’s sole discretion. You acknowledge and agree that Company does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
4. Use Restrictions.
4.1 By using the Services, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
a. Is illegal, or violates any federal, state, or local law or regulation; b. Advocates illegal activity or discusses illegal activities with the intent to commit them; c. Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights; d. Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable; e. Interferes with any other party’s use and enjoyment of the Services; f. Attempts to impersonate another person or entity; g. Is commercial in a way that violates these Terms, including but not limited to, using the Services for spam, surveys, contests, pyramid schemes, or other advertising materials; h. Falsely states, misrepresents, or conceals your affiliation with another person or entity; i. Accesses or uses the account of another user without permission; j. Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment; k. Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Services, or the servers or networks connected to the Services; l. “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else; m. Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords; n. Decompiles, reverse engineers, disassembles or otherwise attempts to derive source code from the Services, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without consent; o. Removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of, the Services; p. Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Services, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information; q. Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercializes any materials or content on the Services; r. Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms or with the prior written consent of Company; or s. Attempts to do any of the foregoing.
4.2 In addition, you shall not, and shall not permit others to, do the following with respect to the Services:
a. Use the Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms; b. License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Services available for access by third parties except as otherwise expressly provided in these Terms; or c. Access or use the Services for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services or allow access by a direct competitor of Company.
4.3 You may not frame the Website, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Website, provided that you acknowledge and agree that you will not link the Website to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Services effective immediately.
4.4 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Services for violations of these Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
6. Customer Obligations and Updates and Communications.
6.1 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited herein, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company of any such actual or threatened activity.
6.2 We may revise these Terms or any additional terms and conditions which are relevant to a particular Service from time-to-time to reflect changes in the law or to the Services. We will post the revised terms on our Website with a “last updated” date at the top of the Terms. PLEASE REVIEW THE WEBSITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
6.3 You agree to receive electronically all communications, agreements, and notices that we provide in connection with any Services (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the Website or through any Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing and you agree to keep your account contact information current.
7. Definitions Used in Connection with Subscription Plan Services.
“Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer by or through the Subscription Plan Services. “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance Companies. “Permitted Use” means any use of the Subscription Plan Services solely in or for Customer’s internal business operations, which includes providing services to and on behalf of Customer’s clients. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity. “Company Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Company or its designee to disable Customer’s access to or use of the Subscription Plan Services automatically with the passage of time or under the positive control of Company or its designee. “Company Materials” means the Service Software, specifications, documentation and Company Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Company or any subcontractor in connection with the Services or otherwise comprise or relate to the Subscription Plan Services or Company Systems. “Company Systems” means the information technology infrastructure used by or on behalf of Company in performing the Subscription Plan Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Company or through the use of third-party services. “Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service Companies, and legal advisors. “Service Software” means the Company software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Company provides remote access to and use of as part of the Subscription Plan Services. “Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Subscription Plan Services that are not proprietary to Company.
8. Subscription Plan Services.
8.1 Service and System Control. Except as otherwise expressly provided in these Terms, as between the parties: (a) Company has and will retain sole control over the operation, provision, maintenance and management of the Subscription Plan Services and Company Materials, including the: (i) Company Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Service maintenance, upgrades, corrections and repairs; and (b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Subscription Plan Services and Company Materials by any Person by or through the Customer Systems or any other means controlled by Customer, including any: (i) information, instructions or materials provided by any of them to the Subscription Plan Services or Company; (ii) results obtained from any use of the Subscription Plan Services or Company Materials; and (iii) conclusions, decisions or actions based on such use.
8.2 Changes. Company reserves the right, in its sole discretion, to make any changes to the Subscription Plan Services and Company Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company’s services to its customers, (ii) the competitive strength of or market for Company’s services or (iii) the Subscription Plan Services’ cost efficiency or performance; or (b) to comply with applicable Law.
8.3 Suspension or Termination of Services. Company may, directly or indirectly, and by use of a Company Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s or any other Person’s access to or use of all or any part of the Subscription Plan Services or Company Materials, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Customer has failed to comply with, any material term of these Terms,; (ii)accessed or used the Subscription Plan Services beyond the scope of the rights granted or for a purpose not authorized under these Terms; (iii) Customer is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Subscription Plan Services; or (iv) the term of the Subscription Plan Services expires or is terminated. This Section does not limit any of Company’s other rights or remedies, whether at law, in equity or under these Terms.
9. Authorization and Customer Restrictions.
9.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees (as applicable when Customer signs up for a Subscription Plan) and compliance and performance in accordance with all other terms and conditions of these Terms, Company hereby authorizes Customer to access and use, during the Term, the Subscription Plan Services and such Company Materials as Company may supply or make available to Customer solely for the Permitted Use, on the conditions and limitations set forth in these Terms. This authorization is non-exclusive and non-transferable.
9.2 Reservation of Rights. Nothing in these Terms grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Subscription Plan Services, Company Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Subscription Plan Services, the Company Materials and the Third Party Materials are and will remain with Company and the respective rights holders in the Third Party Materials.
9.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Subscription Plan Services or Company Materials except as expressly permitted by these Terms and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms expressly permits: (a) copy, modify or create derivative works or improvements of the Subscription Plan Services or Company Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Subscription Plan Services or Company Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Subscription Plan Services or Company Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Subscription Plan Services or Company Materials or access or use the Subscription Plan Services or Company Materials other than by Customer; (e) input, upload, transmit or otherwise provide to or through the Subscription Plan Services or Company Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Subscription Plan Services, Company Systems or Company’s provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Subscription Plan Services or Company Materials, including any copy thereof; (h) access or use the Subscription Plan Services or Company Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law; (i) access or use the Subscription Plan Services or Company Materials for purposes of competitive analysis of the Subscription Plan Services or Company Materials, the development, provision or use of a competing software service or product or any other purpose that is intended for the Company’s detriment or commercial disadvantage; or (j) otherwise access or use the Subscription Plan Services or Company Materials beyond the scope of the authorization granted herein.
10. Fees; Payment Terms.
10.1 Fees. Customer shall pay Company the monthly fee associated with the type of account Customer chooses (“Fees”).
10.2 Taxes. All Fees and other amounts payable by Customer are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.
10.3 Payment. Fees will be charged to the credit card used by Customer when signing up for the Subscription Plan Services on a recurring monthly basis in the amount specified by Company at the time Customer signed up for the Subscription Plan Services. Customer will not receive any advance notice of this payment. The prices, features, and options of the Subscription Plan Services depend on the Subscription Plan selected. Company does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
10.4 Recurring Charges. When you purchase Subscription Plan Services, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. Customer must promptly notify us of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN SERVICE, CUSTOMER AUTHORIZES COMPANY OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN SERVICE CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE SUBSCRIPTION PLAN SERVICES. The Authorization continues through the applicable term and any renewal term (as defined herein, below) until Customer cancels as set forth in these Terms.
10.5 Late Payment. If Customer’s automatic recurring payment is declined or unable to be processed for any reason, Company may in its sole discretion permanently restrict Customer’s ability to use a certain payment method if that payment method fails. If Customer fails to make any payment when due then, commencing five (5) business days after Customer’s receipt of a default notice, in addition to all other remedies that may be available: (a) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Customer shall reimburse Company for all costs reasonably incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and (c) if such failure continues for ten (10) business days following written notice thereof, Company may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension. All amounts payable to Company shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
11. Intellectual Property Rights.
11.1 Subscription Plan Services and Company Materials. All right, title and interest in and to the Subscription Plan Services and Company Materials, including all Intellectual Property Rights therein, are and will remain with Company and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Subscription Plan Services or Company Materials (including Third-Party Materials) except as expressly set forth herein or the applicable third-party license, in each case subject to the terms contained herein, all other rights in and to the Subscription Plan Services and Company Materials (including Third-Party Materials) are expressly reserved by Company and the respective third-party licensors.
11.2 Customer Data. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted herein. 11.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to
Customer Data: (a) to Company, its subcontractors and Company personnel as are necessary or useful to perform the Services for Customer; and (b) to Company as are necessary or useful to enforce these Terms and exercise its rights and perform its obligations to Customer hereunder.
12.1 Confidential Information. In connection with the use of Subscription Plan Services, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations.
12.2 Exclusions. Confidential Information does not include information that (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
12.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms; (b) except as may be permitted by and subject to its compliance with Section 12.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section.
12.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under these Confidentiality terms; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
13. Term and Termination.
13.1 Term. The term of any Subscription Plan Services will be month to month, automatically renewing on a monthly basis, unless otherwise agreed upon between Customer and Company in writing.
13.2 Termination. In addition to any other express termination right set forth elsewhere in these Terms: (a) Company may terminate any agreement for Subscription Plan Services, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Company’s delivery of written notice thereof; (b) either party may terminate an agreement for Subscription Plan Services, effective on written notice to the other party, if the other party materially breaches these Terms and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; (c) either party may terminate an agreement for Subscription Plan Services, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business/ and (d) Either party may terminate a month to month agreement for Subscription Plan Services for any reason or no reason upon not less than thirty (30) days prior written notice to the other party.
13.3 Effect of Expiration or Termination. Upon any expiration or termination of an agreement for Subscription Plan Services, except as expressly otherwise provided in these Terms (a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate; (b) Company shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Company directly or indirectly controls; (c) Customer shall immediately cease all use of any Subscription Plan Services or Company Materials and (i) promptly return to Company, or at Company’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Company’s Confidential Information; and (ii) permanently erase Company’s Confidential Information from all systems Customer directly or indirectly controls; (d) notwithstanding anything to the contrary in these Terms, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; (ii) Company may retain Customer Data; and (iii) Customer may retain Company Materials solely to the extent and for so long as required by applicable Law; (iv) Company may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section will remain subject to all confidentiality, security and other applicable requirements of this these Terms; (e) Company may disable all Customer access to the Hosted Services and Company Materials; (f) if Customer terminates Subscription Plan Services due to a Company breach, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Company will refund to Customer Fees paid in advance for Services that Company has not performed as of the effective date of termination; (g) if Company terminates a Subscription Plan Agreement due to a Customer breach, all Fees that would have become payable had such agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees on receipt of Company’s invoice therefor; and (h) if Customer requests in writing at least ten (10) days prior to the effective date of expiration or termination, Company shall, within thirty (30) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Company, provided that Customer has at that time paid all Fees and then outstanding and any amounts payable after or as a result of such expiration or termination.
13.4 Survival. The provisions of Section 2 (Ownership), Section 11 (Intellectual Property Rights), Section 12 (Confidentiality), Section 13.4 (Survival), Section 14 (Disclaimer of Warranties), Section 15 (Indemnification), Section 16 (Limitations on Liability), Section 18 (Miscellaneous), will survive termination of these Terms.
14. Disclaimer of Warranties.
14.1 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES AND COMPANY MATERIALS ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of these limitations may not apply to you.
15.1 Company Indemnification. Company shall indemnify, defend and hold harmless Customer, its Affiliates and their officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party alleging that (a) Customer’s use of the Services (excluding Customer Data and Third Party Materials) in compliance with these Terms infringes an Intellectual Property Right or right of privacy; (b) allegation of facts that, if true, would constitute Company’s s breach of any of its representations, warranties, covenants or obligations under these Terms; or (c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Company, its Affiliates or , Subcontractors in connection with these Terms. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (a) access to or use of the Services or Company Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized by Company; (b) modification of the Services or Company Materials other than: (i) by or on behalf of Company; or (ii) with Company’s written approval in accordance with Company’s written specification; (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Company.
15.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Company and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Company Indemnitee”) from and against any and all Losses incurred by such Company Indemnitee in connection with any Action by a third party (other than an Affiliate of a Company Indemnitee) that arises out of or relates to any: (a) Customer Data, including any processing of Customer Data by or on behalf of Company in accordance with these Terms; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer, including Company’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Company; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under these Terms; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party on behalf of Customer, in connection with these Terms.
15.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 15.1 or Section 15.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
15.4 Mitigation. If any of the Services or Company Materials are, or in Company’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of the Services or Company Materials is enjoined or threatened to be enjoined, Company may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and Company Materials as contemplated by these Terms; (b) modify or replace the Services and Company Materials, in whole or in part, to seek to make the Services and Company Materials (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Services and Company Materials, as applicable, under these Terms; or (c) by written notice to Customer, terminate these Terms and require Customer to immediately cease any use of the Services and Company Materials. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THESE TERMS OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND COMPANY MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
16. Limitations of Liability.
16.1 EXCLUSION OF DAMAGES. NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE COMPANYS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
16.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAYABLE TO COMPANY UNDER THESE TERMS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
16.3 Exceptions. The exclusions and limitations in Section 16.1 and Section 16.2 do not apply to Company’s obligations under Section 15 (Indemnification) or liability for Company’s gross negligence or willful misconduct.
17. Force Majeure.
17.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms for any failure or delay in fulfilling or performing any term of these Terms (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Terms, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate these Terms if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
17.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
18.1 Export Control Laws. You acknowledge that the Services and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that Company makes available (collectively “Excluded Data”), is subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”). You represent and warrant that you will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by Export Laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business. You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the Website.
18.2 Third Party Terms. We may provide, or third parties may provide, links to other third-party web sites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. COMPANY IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE WEBSITESITE OR POSTS OF USER CONTENT. Your correspondence or business dealings with third parties found on or through the Website, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such links to third-party web sites or resources on the Website, and you understand that you are bound by the terms of such third parties.
18.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms have binding legal effect only if in writing and addressed to a party at the address set forth at the time of registering for Services (in the case of Customer) or at the address set forth on the Website (in the case of Company) (or to such other address or such other person that such party may designate from time to time). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
18.5 Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
18.6 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Company’s prior written consent, which consent Company shall not unreasonably withhold or delay. No delegation or other transfer will relieve Customer of any of its obligations or performance under these Terms. Any purported assignment, delegation or transfer in violation of this Section is void. These Terms are binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
18.7 No Third-party Beneficiaries. These Terms for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
18.8 Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18.9 Severability. If any provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18.10 Mandatory Arbitration, Waiver of Class Actions Applicable to Customers.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
18.10.1 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at firstname.lastname@example.org and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). Except for intellectual property, you and Company agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
18.10.2 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided below) subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms, the parties’ relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Arbitration shall be initiated and take place in San Mateo County, California, United States, and you and Company agree to submit to the personal jurisdiction of any federal or state court in, San Mateo County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
18.10.3 No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial, but by agreeing to this mandatory arbitration section, they give up those rights. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
18.10.4 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
18.10.5 Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
18.11 Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to these Terms or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in San Mateo County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
18.12 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 12 (Confidentiality) or, in the case of Customer, Section 9.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
18.13 Attorneys’ Fees. In the event that any arbitration, action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
18.14 Contacting Us. If you have any questions about the Website or Terms, pricing, complaints, or other inquiries, please contact us at 217 S. B St. Suite 1, San Mateo, CA 94401 or at email@example.com. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.