DESCRIPTION OF SERVICE
THE “SERVICE” INCLUDES THE WEBSITE AND MOBILE APPLICATIONS (“APPS”), AND SERVICES PROVIDED TO YOU THROUGH OUR THE WEBSITE INCLUDING ALL SOFTWARE, DATA, TEXT, IMAGES, SOUNDS, VIDEOS, AND OTHER CONTENT MADE AVAILABLE THROUGH THE SITE (COLLECTIVELY, “CONTENT”). ANY NEW FEATURES ADDED TO OR AUGMENTING THE SERVICE ARE ALSO SUBJECT TO THESE TERMS.
We make commercially reasonable efforts to have the website, Apps and services available 24×7, except for: (a) planned downtime or (b) circumstances beyond our reasonable control, such as, but not limited to, acts of government, acts of terror or civil unrest, or technical failures beyond Our control.
GENERAL CONDITIONS/ACCESS AND USE OF THE SERVICE
Subject to the terms and conditions of these Terms, You agree to access and use the Service only for Your internal business purposes as contemplated by these Terms. Except Your limited right to access and use the Service as expressly granted to You here, all rights, title and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to Us and Our third-party vendors.
You agree not to:
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms;
- use the Service to process data on behalf of any third party,
- modify, adapt or hack the Service to falsely imply any sponsorship or association with Us, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks;
- use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law,
- use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components;
- attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service;
- use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or
- try to use, or use the Service in violation of these Terms.
You are responsible for all information, data, text, messages or other materials that You post or is otherwise transmitted via the Service. You are responsible for maintaining the confidentiality of Your login and account and are fully responsible for any and all activities that occur under Your login or account.
Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
DATA PRIVACY AND SECURITY
In providing You the Service, We shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your data. These safeguards include, where applicable, encryption of Your data in transmission (using SSL or similar technologies), except for certain external third-party integrations that do not support encryption, which You may link to the Service at Your choice.
INTELLECTUAL PROPERTY RIGHTS
We shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. You grant to Us a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You. Our product and service names, and logos used or displayed on the Service are Our registered or unregistered trademarks (collectively, “Marks”), and You may only use such Marks to identify yourself as a customer and user of the Service; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, or Our services or products.
THIRD PARTY SERVICES
External Sites: The Service may contain links to, or otherwise may allow You to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Service. If You decide to access and use such Other Services, be advised that Your use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Your data. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Other Services, or Your reliance on the privacy practices or other policies of such Other Services.
Integration: The Service may contain features that enable various Other Services (such as social media services) to be directly integrated into Your experience. To take advantage of these features, You will be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Service, You are expressly allowing Us to pass Your log-in information to these Other Services for this purpose.
BILLING, PLAN MODIFICATIONS, AND PAYMENTS
Billing and Payments: Fees for the purchase of Our Apps or use of the Services are as described on the subscription agreement or site and shall be paid according to the terms and conditions stated therein.
Taxes: Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Us based on Our income. We will invoice You for such Taxes if we believe we have a legal obligation to do so, and if that occurs You agree to be liable for such Taxes owed.
CANCELLATION AND TERMINATION
We reserve the right to (i) modify or discontinue, temporarily or permanently, any of the Apps or the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate your account if We believe that You have violated these Terms. We will use commercially reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of Service, and may be referred to law enforcement authorities. You agree that We are not be liable to You, or any third party, for any modification, suspension or discontinuation of the Service.
DISCLAIMER OF WARRANTIES
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY IN THESE TERMS, OUR (INCLUDING ANY OF OUR AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. In these states, our liability will be limited to the greatest extent permitted by law.
Indemnification by Us: We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes a valid U.S. patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). We shall, at our expense, defend such Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us for such defense, provided that (i) You promptly notify Us of the threat or notice of such Claim, (ii) We have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) You fully cooperate with Us in connection therewith. If Your use of the Service has become, or in Our opinion is likely to become, the subject of any such Claim, We may at our option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate these Terms and repay You any unused Service fees. We will have no liability or obligation under this Section with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than Us; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The provisions of this Section state our entire liability to You and constitute Your sole remedy with respect to a Claim brought by reason of Your permitted use of the Service.
Indemnification by You: You agree to defend, indemnify, and hold Us harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, or Your and Your end users’ access to, use, misuse or illegal use of the Service. We will provide You notice of any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Our defense of such matter.
ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
Either party may assign or transfer these Terms, in whole or in part, without restriction, provided the assignee agrees to be fully bound by these Terms. These Terms supersede prior versions of these Terms or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties). We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of such changes and direct You to the latest version.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
EXPORT COMPLIANCE AND USE RESTRICTIONS
Certain Content and software components of the Service may be subject to U.S. export control and economic sanctions laws. If You are subject to U.S. laws, You agree to comply with all such laws and regulations as they relate to such software and Content, and access and use of the Service. You shall not access or use the Service if you are located in any jurisdiction prohibited by U.S. Laws, and You shall also not provide access to the Service to any government, entity or individual located in any such jurisdictions.
GOVERNING LAW; VENUE; ATTORNEY’S FEES
These Terms shall be governed by the laws of the State of California without regard to conflict of laws principles. Exclusive venue for any legal action shall be in the federal and state courts of the State of California. You hereby expressly agree to submit to the exclusive personal jurisdiction of the for the purpose of resolving any dispute relating to Your access to or use of the Service. In the event of any legal action between You and Us, the substantially prevailing party shall receive from the losing party its reasonable costs and attorney’s fees incurred in the action and in any appeal.
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