THIS TERMS OF SERVICES (“AGREEMENT”) CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS USE OF AND ACCESS TO THE WEBSITE AND SERVICES provided by inUtil Labs LLC, a Delaware limited liability company (“Company”, “we”, “us”, or “inUtil Labs”) BY YOU AND YOUR AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID, FREE OR TRIAL SUBSCRIPTION TO THE SERVICES.
PERSONAL INFORMATION WE COLLECT
This Agreement is effective and is binding upon you and the company, organization or other legal entity you represent and its Affiliates (collectively referred to as “you”), as of the date you submit your registration on the Website or begin using the Services (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity or if you do not agree with this Agreement, you must not check the box below (or, if applicable, do not sign this Agreement) or use the Services or Website. You represent and warrant that, if an individual, you are at least 18 years old and otherwise legally competent in all respects to be bound by this Agreement.
Company reserves the right to revise from time to time this Agreement, such changes to be effective upon posting on Company’s Website. Please check the Terms of Service periodically for changes. Your continued use of the Website and Services following the posting of any changes to the Agreement constitutes your acceptance of those changes.
SERVICES. During the Subscription Term, and subject to all terms and conditions of this Agreement, we will use commercially reasonable efforts to provide the Services to you consistent with your Service Plan. We may provide the Services using third party vendors or service providers. You agree to pay Company the fees, in the amounts and at the times, specified in your selected Service Plan. You shall be responsible for any End User’s use of the Services.
CHANGES TO THE SERVICE. We may also make commercially reasonable modifications to the Services from time to time without prior notice. We may make changes to any Service Plan at any time. After 30 days’ notice to you of a change to your then applicable Service Plan, if you continue to use the Services or API beyond the expiration of your then current Subscription Term or renewal term, such use will be governed by the modified Service Plan.
LIMITATIONS. We will not be responsible or liable for any failure in the Services or website resulting from or attributable to (a) your Systems, (b) network, telecommunications or other service or equipment, (c) your or a third party’s products, services, negligence, acts or omissions, (d) any force majeure or cause beyond our reasonable control, (e) scheduled maintenance, (f) customer SUBMISSION DATA, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS OR ILLEGAL CONTENT or (f) unauthorized access or breach by third parties INTO YOUR ACCOUNT OR OF customer SUBMISSION DATA unless caused by company’s breach of this agreement. You are responsible for maintaining the confidentiality of your account access password and for all activities that occur under your account. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE WEBSITE OR SERVICES, (2) ANY INCOMPATIBILITY BETWEEN THE WEBSITE AND OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE WEBSITE IN AN ACCURATE OR TIMELY MANNER OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIRD PARTY SERVICES. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY MANDATORY PROTECTIONS PROVIDED TO YOU UNDER APPLICABLE LAW. SYSTEMS. You shall obtain and operate all Systems needed to use the Services and provide all corresponding backup, recovery and maintenance services. You shall ensure that all Systems are compatible with the Services.
API USE. If your Service Plan included access to the API, then subject to the terms and conditions of this Agreement, Company grants to you a limited, nonexclusive, nontransferable, non sublicensable, worldwide, revocable right and license during the Subscription Term to use and make calls to the API to develop, implement and distribute your own applications solely for use by you and your End Users in connection with the Services.
API MODIFICATION. Company may modify, amend, change or deprecate all or part of the API in its sole discretion at any time (an “API Modification”). Company shall use commercially reasonable efforts to provide prior notice to you of any such actions as soon as reasonably practical. You shall, within thirty (30) days from the date of first notice of any API Modification(s) (or such shorter period of time specified in the notice of the API Modification(s)) (the “Conformance Period”) comply with such modification(s) by (i) implementing and using the most current version of the API, (ii) making any changes to your application using the API that may be required as a result of such API Modification, (iii) using commercially reasonable efforts to stop distribution of all prior versions of your applications using the API and (iv) using commercially reasonable efforts to upgrade all prior versions of your applications using the API then in use to the most recent version. You acknowledge that an API Modification may have a material adverse effect on your applications using the API, including but not limited to, causing such applications to not operate as designed. Company shall have no liability of any kind to you or any End User with respect to such API Modifications or any adverse effects resulting from such API Modifications. Your continued access to or use of the API following the Conformance Period shall constitute binding acceptance of the API Modifications at issue.
THIRD PARTY SERVICES. You may find links to Third Party Services on the Website. You acknowledge and agree that Company is not responsible for Third Party Services and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Company will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or reliance on any Third Party Service. If You decide to enable, access or use Third Party Services, be advised that your access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services. You irrevocably waive any claim against Company with respect to such Third Party Services.
CUSTOMER SUBMISSION DATA. As between the parties, you shall own all Customer Submission Data. You represent and warrant that you have the right to provide all Customer Submission Data to Company as set forth herein, and you agree to indemnify and hold us harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys’ fees) arising out of any use or disclosure of Customer Submission Data and your use of the Services.
You understand that you are solely responsible for all Customer Submission Data posted on, transmitted through or linked from the Service, including any Customer Submission Data created or provided by End-Users. You represent, warrant and agree that you will not upload, post or otherwise transmit via the Website Customer Submission Data that: (a) is inaccurate, fraudulent, harmful, unlawful, obscene, pornographic, defamatory, racist, violent, offensive, harassing or otherwise objectionable to Company or other users of the Website; (b) includes unauthorized disclosure of personal information; (c) violates or infringes anyone’s intellectual property rights; or (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You acknowledge that we do not pre-screen or approve Customer Submission Data, but that Company shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Customer Submission Data that is available via the Service for violating the letter or spirit of this Agreement or for any other reason.
If you remove your Customer Submission Data (by deleting, un-publishing, downgrading an account, etc.) or cancel your account, unless you retain a free account, as set forth below, Company may immediately remove your Customer Submission Data permanently from its and its subcontractors’ servers.
LIMITED LICENSE. During the Subscription Term, you have the limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to access and use the Services consistent with your Service Plan(s), provided such use and access is in accordance with this Agreement and for your internal business purposes only. An Affiliate may purchase a subscription to the Services under this Agreement provided that you or such Affiliate executes a Service Plan for such Services. By entering into a Service Plan hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. You agree that you will be responsible for your Affiliates’ compliance with this Agreement.
NO ADDITIONAL RIGHTS. Except for the limited rights and licenses expressly granted hereunder, no other license is granted to you, no other use is permitted and we (and our licensors) shall retain all right, title and interest in and to the Website, Services, Company Trademarks (defined below) and all updates and modifications thereto (including all intellectual property and proprietary rights embodied therein). You shall not take any action inconsistent with such rights.
LICENSE RESTRICTIONS. Except as expressly authorized by Company, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, mirror, frame, republish, download, transmit or create derivative works of the Website or Services. You must not modify, decompile or reverse engineer any software Company discloses to you, and you must not remove or modify any copyright or trademark notice or other notice of ownership or use the Services or Website to create a competitive product or service or for any other competitive purposes. You represent, warrant and agree that you will not use the Website or Services to: (a) transmit spam, bulk or unsolicited communications; (b) pretend to be Company or someone else, or spoof Company’s or someone else’s identity; (c) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any Customer Submission Data transmitted through the Services; (d) misrepresent your affiliation with a person or entity; (e) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users’ ability to use the Website or Services; (f) engage in activities that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to, attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking or making threats of harm; or (g) post, share, collect or store personal data about other users or persons unless authorized by such users or persons. You further represent and warrant that you will not disrupt the functioning of the site, in any manner. Company reserves the right to immediately terminate or suspend your account for any impermissible use. You are responsible for all Subscription Charges during any suspension periods, including the time between any suspension/termination and reactivation of your account.
COMPANY TRADEMARKS. “Company Trademarks” means all names, marks, brands, logos, designs, trade dress, slogans and other designations Company uses in connection with its products and services. You agree not to use the Company Marks for any purpose without Company’s prior express written consent. You may not remove or alter any Company Trademarks, or co-brand your own products or material with Company Trademarks, without Company’s prior written consent. You acknowledge Company’s rights in Company Trademarks and agree that any use of Company Trademarks by you shall inure to Company’s sole benefit. You agree not to incorporate any Company Trademarks into your trademarks, service marks, company names, Internet addresses, domain names or any other similar designations for use on or in connection with computer or Internet-related products, services or technologies.
SERVICE PLAN UPGRADES. Your Service Plan includes certain restrictions on your use of the Services. In order to use the Services in excess of any such limitations, you must upgrade your Service Plan accordingly for your usage level.
TRIAL PERIODS AND FREE ACCOUNTS. If you signed up for a “Free Trial”, you will be permitted to access and use the Services until the end of your trial period. Upon the termination of such trial period, you must select a Service Plan other than a “Free Trial” and begin paying Subscription Charges as set forth in this Agreement. Trial periods shall be as set forth in your Service Plan, or as otherwise agreed to in writing by you and us. If you cancel your Service Plan subscription in accordance with the below, your account will become a free account as described on the Website. You understand that any trial period or otherwise free account that has been inactive (the user has not logged into the Company administration tool or received any submissions on their forms) for six or more months is subject to termination and deletion of all Customer Submission Data. For all non-paid or free accounts, you agree to allow Company to place a Company logo or a “powered by” or similar link on all forms.
CREDIT CARD INFORMATION. In order to set up an account with us, you must provide Company with accurate and complete billing information including legal name, address and telephone number. If you are paying via credit card, PayPal, ACH debit or other electronic means of payment, you must provide valid information for such payment method (credit card number, ACH routing and account number, etc.). By submitting such information, you give us permission to charge all Subscription Charges and any other fees incurred for using the Services via such payment method. We reserve the right to terminate this Agreement and your access to and use of the Services in accordance with Section 12 hereto if you do not provide valid payment method information or the payment of fees hereunder, or if any Subscription Charges or other charges are not otherwise timely paid.
PAYMENT TERMS. The Subscription Charges are billed in advance upon commencement of your Subscription Term, and thereafter on a monthly basis, except as otherwise agreed to or as set forth in a Service Plan or an Addendum, and are non-refundable to the extent permitted by law. If you upgrade your Service Plan, you will be charged the corresponding Subscription Charge immediately and receive a pro-rata credit for the unused portion of the Subscription Charge for your prior Service Plan. If you downgrade your Service Plan, you will be charged the Subscription Charge for the lower Service Plan immediately. If and to the extent a credit balance exists on your account following a change to your Service Plan, we will charge your payment method on file once such credit has been exhausted. There will be no refunds or credits for partial months of Service or upgrade/downgrade refunds. Any add-on features or Services not provided in your Service Plan will be billed in accordance with specific terms provided at the time the add-on features or Service is requested by you.
TAXES. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon our net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
REVISING SUBSCRIPTION CHARGES. We may revise Subscription Charges for the Services by providing you written notice (which may be by email) at least thirty days prior to the start of the following renewal term of your Subscription Term.
AUTO-RENEWAL OF SUBSCRIPTION CHARGES / CANCELLATION PROCEDURE. Your Subscription Charge will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page. You may cancel your account at any time through your online account management page, but paid Subscription Charges will not be refunded. You authorize us to continue your Subscription Charges until your Service Plan is cancelled/terminated in accordance with this Agreement and, on a recurring monthly basis (or whatever recurring basis has been otherwise agreed to in writing), to charge the payment method you provided for the then-current Subscription Charge. Subscription cancellations by you will take effect at the end of the current billing cycle. If you cancel your Service Plan subscription in accordance with this Agreement, your account will become a free account as described on the Website.
DISCLAIMER OF WARRANTIES. THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WE DO NOT WARRANT THAT THE WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE WEBSITE AND SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR SYSTEMS OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY CONTENT FROM THE WEBSITE, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES, SPYWARE OR OTHER HARMFUL ITEMS ON THE INTERNET.
BACKUPS. FOR ITS OWN OPERATIONAL EFFICIENCIES AND PURPOSES, COMPANY FROM TIME TO TIME BACKS UP DATA ON ITS SERVERS BUT IS UNDER NO OBLIGATION OR DUTY TO YOU TO DO SO UNDER THESE TERMS. IT IS YOUR SOLE DUTY AND RESPONSIBILITY TO BACKUP YOUR CUSTOMER Submission Data, FILES AND DATA, AND UNDER NO CIRCUMSTANCE WILL COMPANY BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF YOUR CUSTOMER Submission Data, FILES AND/OR DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, FOR INSTANCE, POTENTIALLY AS TO GOVERNMENTAL AGENCIES, WHICH MEANS THAT SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID OR PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE, INCLUDING WITHOUT LIMITATION, UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS, (D) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE, (E) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO US HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PERSONAL INJURY OR DEATH, FOR INSTANCE, POTENTIALLY AS TO GOVERNMENTAL AGENCIES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF YOU ARE DISSATISFIED WITH THE WEBSITE, DO NOT AGREE WITH ANY PART OF THIS AGREEMENT OR HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST COMPANY OR ANY PARTY WITH RESPECT TO THIS AGREEMENT OR THE WEBSITE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE AND SERVICES.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD COMPANY, ITS AFFILIATES AND ITS SPONSORS, PARTNERS, AGENTS, LICENSORS, OTHER CO-BRANDERS AND THE RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, MEMBERS AND EMPLOYEES OF EACH HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO CUSTOMER Submission Data, YOUR BREACH OF THIS AGREEMENT OR USE BY YOU, ANY END USER OR THIRD PARTY ACTING ON YOUR BEHALF OF THE WEBSITE OR SERVICES, EXCEPT TO THE EXTENT THE FOREGOING DIRECTLY RESULT FROM COMPANY’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. COMPANY RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
TERM AND TERMINATION
TERM. This Agreement shall commence on the Effective Date and shall continue in effect for the initial term specified in the Service Plan. If no initial term is specified in the Service Plan, the initial term shall be 1 month. Unless terminated earlier as permitted herein, the Agreement will be extended automatically for additional terms of equal length to the initial term, or if no initial term is specified, 1 month, at the end of the initial term and each renewal term (collectively, the “Subscription Term”). Either party may elect not to renew this Agreement by giving written notice thereof via our customer support ticketing system (accessible via your control panel when logged in) to the other party at least 10 days prior to the end of the then current initial or renewal term.
TERMINATION. Except as otherwise set forth herein, you are solely responsible for properly terminating your account. An email or phone request to cancel your account shall not result in termination. You can terminate this Agreement and your account at any time inside of your account dashboard. Any termination of your account will result in the deactivation or deletion of your account or your access to the account. Please be aware that Company may for a time retain residual information and/or archival copies of Customer Submission Data in its database but cannot guarantee, and has no obligation, to provide such information to you.
TERMINATION FOR CAUSE. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (5 days in the case of non- payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
COMPANY TERMINATION. Company may terminate this Agreement or terminate or suspend your access to the Website or Services at any time, with or without cause, with or without notice. Upon such termination or suspension, your right to use the Website or Services will immediately cease. Company will not be liable to you or any third-party for any modification, suspension, or termination of the Services or loss of related information.
EFFECTS OF TERMINATION. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive, (b) we may, but shall not be obligated to, immediately delete Customer Submission Data and your account information and (c) the provisions of Sections 1.3 (Limitations), 4 (Third Party Services), 5 (Proprietary Rights), 7.2 (Payment Terms), 8 (Disclaimers), 9 (Limitation of Liability and Exclusive Remedy), 10 (Indemnification), 12 (Confidentiality), 13 (General Provisions) and this Section 11.5 and those which by their nature should survive shall survive.
CONFIDENTIALITY OF COMPANY INFORMATION
You may obtain direct access to certain confidential information of Company and its suppliers, including without limitation technical, contractual, product, program, pricing, marketing and other valuable information that should reasonably be understood as confidential (“Confidential Information”). You must hold Confidential Information in strict confidence and not disclose it to any third party. Title to Confidential Information remains with Company and its suppliers.
Your obligations regarding Confidential Information expire five (5) years after the date of disclosure. Upon termination of the Agreement or upon Company’s written request, you must cease use of Confidential Information and return or destroy it.
This Section imposes no obligation upon you with respect to Confidential Information that you can establish by legally sufficient evidence: (a) you possessed prior to your receipt from Company, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission by you, or otherwise without violation of this Agreement; (c) you obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) you independently developed without the use of Confidential Information and without the participation of individuals who have had access to it, or (e) in response to a valid order by a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either party under this Agreement, provided you have given Company prior notice adequate to afford Company the opportunity to object to the disclosure.
ENTIRE AGREEMENT, WAIVER, SEVERABILITY. This Agreement (together with the applicable Service Plan(s), any Addendums or any agreement executed by you and Company and incorporated herein by express reference) constitutes the entire agreement and supersedes all prior negotiations, understandings or agreements (oral or written) between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Agreement and the Service Plan, the terms and conditions in the Agreement will prevail and be controlling. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, you shall cause such registration to be made and shall bear any expense or tax payable in respect thereof. If you discover anyone on the Company system violating this Agreement or notice anything suspicious from the Company network, you agree to report the violation or suspicious activity by opening a ticket with Company for investigation.
GOVERNING LAW / BINDING ARBITRATION.
GOVERNING LAW. This Agreement shall be treated as though executed and performed in the state of Delaware, and shall be governed by and construed in accordance with the laws of Delaware, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement.
ARBITRATION. Any dispute relating in any way to this Agreement or your use of the Website or Services shall be submitted to confidential arbitration in Delaware, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Delaware. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Delaware. Arbitration under this Agreement shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise.
LIMITATION OF ACTIONS. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned.
ATTORNEYS’ FEES. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
REMEDIES. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
NOTICES. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed email, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Service Plan, or at such other address designated in a subsequent notice, effective upon receipt. Notwithstanding the foregoing, Company may also provide notice to you by posting notices or links to notices on the Website, effective upon posting. All notices shall be in English.
ASSIGNMENT. This Agreement and the rights and obligations hereunder may be assigned by Company upon 10 days prior written notice to you. Without Company’s prior written consent, you may not assign this Agreement or assign, transfer or sublicense your rights, if any, in the Website or Services. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
INDEPENDENT CONTRACTORS. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party or both parties as joint venturers or partners for any purpose.
Federal Government End Use Provisions. If you are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to you with only those rights as provided under the terms and conditions of this Agreement.
EXPORT CONTROL LAWS AND SANCTIONED COUNTRIES, ENTITIES, AND INDIVIDUALS
EXPORT LAWS. Services, Customer Submission Data and product derived or obtained from the Website may be subject to United States export laws and the export or import laws of other countries. You agree to strictly comply with all such laws and, in particular, shall: (a) obtain any export, reexport or import authorizations required by the United States or your local laws; and (b) not provide Services or Customer Submission Data to prohibited countries and entities identified in the U.S. export regulations. You shall be solely responsible for complying with any home country restrictions on receipt, use or downloading of the Services.
SANCTIONED COUNTRIES, ENTITIES AN INDIVIDUALS
Services, Customer Submission Data and product derived or obtained from the Website may be subject to United States economic sanctions laws as administered and enforced by the Office of Foreign Assets Control of the United States Department of the Treasury. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Website and Customer Submission Data by you and End-Users. The government of the United States of America, through various of its offices and agencies, including but not limited to, through one or more Executive Orders of the President of the United States and through rules and regulations of the United States Department of State, Department of the Treasury, and Department of Commerce, has prohibited, embargoed, sanctioned, banned and/or otherwise excluded certain commercial activities between i) the United States, its citizens or residents and ii) the governments, citizens, entities, nationals or residents of certain other countries, certain organizations and/or entities and certain individuals, as may be modified from time to time (collectively, “Sanctioned Countries, Entities and Individuals”). Sanctioned Countries, Entities and Individuals are hereby prohibited from registering or signing up with, subscribing to or using any service of Company. Country-Code Top Level Domain Names for any Sanctioned Countries are hereby prohibited from use in connection with any service of Company. IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS OR ENTITIES YOU ARE REPRESENTING WITH RESPECT TO THE SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH ENTITIES OR PERSON(S), DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A MEMBER, CANCEL YOUR COMPANY ACCOUNT. BEGINNING NOW, ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.