Terms and Conditions of Service
Supplier reserves the right, at any time and from time to time, to amend or to modify these Terms and Conditions of Service without prior notice to you, provided that if any such alterations constitute a material change to these Terms and Conditions of Service, Supplier will notify you by posting an announcement on the Website. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, you agree to be bound by such amended or modified Terms and Conditions of Service. For this reason, we encourage you to review the Terms and Conditions of Service whenever you use the Services. If you do not agree to any change to these Terms and Conditions of Services, then you must immediately stop using the Services.
SOME JURISDICTIONS HAVE CONSUMER PROTECTION AND OTHER LEGISLATION WHICH MAY APPLY TO THE SERVICES AND WHICH DO NOT ALLOW CERTAIN PROVISIONS SUCH AS LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN WARRANTIES, AMONG OTHERS. TO THE EXTENT THAT A LIMITATION, EXCLUSION, RESTRICTION OR OTHER PROVISION SET OUT BELOW IS SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SUCH LIMITATION, EXCLUSION, RESTRICTION OR PROVISION MAY NOT APPLY TO YOU.
1. Eligibility & Registration
1.1 The Services are not targeted towards, nor intended for use by, anyone under the age of 13. By using the Services, you represent and warrant that you are 13 years of age or older. If you are under the age of 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its admissibility criteria at any time. You are solely responsible for ensuring that these Terms and Conditions of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms and Conditions of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
1.2 To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents), and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your admissibility to use the Services (including any changes to or revocation of any licenses from state, provincial, territorial or other authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. You agree to provide accurate information in your registration and not to share your password with third parties. You agree not to impersonate another person or to select or use a user name or password of another person. You agree to notify Supplier promptly of any unauthorized use of your account and of any loss, theft or disclosure of your password. Failure to comply with these requirements shall constitute a breach of these Terms and Conditions of Service and shall constitute grounds for immediate termination of your account and your right to use the Website. SUPPLIER WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE AS A RESULT OF YOUR FAILURE TO PROVIDE US WITH ACCURATE INFORMATION OR TO KEEP YOUR ACCOUNT SECURE.
2.1 For purposes of these Terms and Conditions of Service, the term “Content” includes, without limitation, information, data, text, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
2.2 All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
2.3 The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
2.4 Subject to these Terms and Conditions of Service, we grant each user of the Services a worldwide, non-exclusive, revocable, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
2.5 By submitting any User Content to the Website, excluding privately transmitted User Content, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit such User Content in connection with the Website, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Website or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each user of the Website and/or the Services a non-exclusive, perpetual license to access any of your User Content that is available to such user on the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. By submitting any User Content to the Services other than on the Website, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, and perform such User Content solely for the purpose of providing the Services. For clarity, the foregoing licenses granted to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
3. Rules of Conduct
3.1 As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms and Conditions of Service. You are responsible for all of your activity in connection with the Services and the activity of any sub-user that uses your access code or Account.
3.2 You agree that you will not transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that (i) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, offensive, profane, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion, (ii) you know is false, misleading, untruthful or inaccurate, (iii) constitutes unauthorized or unsolicited advertising, (iv) impersonates any person or entity, including any of our employees or representatives, or (v) includes anyone’s identification documents or sensitive financial information.
3.3 You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website; (vi) harvest or scrape any Content from the Services; (vii) use the Services for high risk activities including but not limited to the operation of nuclear facilities, air traffic control, life support systems, or any other use where the failure of service could lead to death, personal injury, or environmental damage; or (viii) otherwise take any action in violation of our guidelines and policies.
3.4 You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
3.5 We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms and Conditions of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
3.6 Subscribers are restricted from registering multiple Accounts with the same billing details without first notifying Supplier of that intent. Otherwise, Supplier shall have the right to automatically flag such Accounts as fraudulent or abusive, and Supplier may, without notification to the Subscriber of such Account, suspend the service of such Account or any other Account used by such Subscriber. The use of referral codes by multiple Accounts having the same billing profile is not allowed. Supplier also reserves the right to terminate a Subscriber’s Account if it is targeted by malicious activity from other parties.
3.8 The enumeration of violations in this Section 3 of these Terms and Conditions of Service is not meant to be exclusive, and Supplier provides notice hereby that it has and will exercise its authority to take whatever action is necessary to protect the Services, Subscribers, and third parties from acts that would be inimical to the purposes of this Section 3 of these Terms and Conditions of Service.
Lawful Use of the Network
3.9 In using the Services, Subscribers must comply with, and refrain from violations of, any right of any other person, entity, law, or contractual duty, including without limitation the laws of the United States and the laws of New York, and including without limitation those laws forbidding: (a) distribution of child pornography, (b) forgery, identity theft, misdirection or interference with electronic communications, (c) invasion of privacy, (d) unlawful sending of commercial electronic messages or other marketing or electronic communications, (e) collection of excessive user data from children, or other improper data collection activities, (f) securities violations, wire fraud, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. Subscribers will also comply with the affirmative requirements of law governing use of the Services, including but not limited to: (i) disclosure requirements, including those regarding notification of security breaches, (ii) records maintenance for regulated industries, and (iii) financial institution safeguards.
Agreed Use of Allotted Network Resources
3.10 Subscribers shall not use any method to circumvent the provisions of these Terms and Conditions of Service, or to obtain Services in excess of those for which they contract with Supplier. Subscribers shall use only those IP addresses that are assigned to them by Supplier, and shall not use any IP addresses outside of their assigned range. Subscribers shall not use any mechanism to exceed the amount of resources assigned to them through the Services, or to conceal such activities.
3.11 Subscribers may not use the Services to distribute, receive communications or data gleaned from, or execute any action directed by any type of injurious code, including but not limited to: (i) trojans, (ii) key loggers, (iii) viruses, (iv) malware, (v) botnets, (vi) denial of service attacks, (vii) flood or mail bombs, (viii) logic bombs, or (ix) other actions which Supplier reserves the sole right to determine to be malicious in intent.
3.12 Subscribers shall not send bulk email utilizing their resources on the Services unless they maintain a double-authorized list of subscribed members including IP addresses and relevant contact information, along with following guidelines for including removal links with all sent emails according to the such legislation. Subscribers shall comply with all laws regarding the sending of commercial electronic messages or other marketing or electronic communications. Subscribers are forbidden from taking any action that would result in their IP addresses, or any IP address associated with Supplier or other Subscribers, being placed on the Spamhaus.org blacklist. Supplier reserves the sole and absolute right to determine whether an email violation has occurred.
Invasion of Privacy, Defamation, or Harassment
3.13 Subscribers may not use the Services in a manner that would violate the lawful privacy rights of any person, or to publish or republish defamatory or libelous statements, or to harass or embarrass, which shall be determined in Supplier’s sole and absolute discretion.
Violation of Copyright, Trademark, Patent or Trade Secret
3.14 Subscribers may not use the Services in violation of the copyrights, trademarks, patents or trade secrets of third parties, nor shall they utilize the Services to publish such materials in a manner that would expose them to public view in violation of the law. The provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”) (as required under 17 U.S.C. §512) and all other applicable international trademark, copyright, patent or other intellectual property laws will apply to issues presented by allegations of copyright violations by third parties. Supplier will, in appropriate circumstances, terminate the accounts of repeat violators. If a third party believes that a Subscriber of Supplier is violating its intellectual property rights, it should notify us by email at email@example.com. A notification should include information reasonably sufficient to permit Supplier to locate the allegedly infringing material, such as the IP address or URL of the specific online location where the alleged infringement is occurring.
3.15 Subscriber shall comply with all applicable export and import control laws and regulations in its use of the Services, and, in particular, Subscriber shall not utilize the Services to export or re-export data or software without all required Canada and foreign government licenses. Subscriber assumes full legal responsibility for any access and use of the Services from outside Canada, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license. Should such a license be required, it shall be Subscriber’s responsibility to obtain the same, at Subscriber’s sole cost and expense, and in the event of any breach of this duty resulting in legal claims against Supplier, Subscriber shall defend, indemnify and hold Supplier harmless from all claims and damages arising therefrom.
Acts of Sub-Users
3.16 Subscribers are responsible for the acts of others utilizing their access to the Services, and will be held responsible for violations of the Services by their sub-users or persons who gain access to the Services using the Subscriber’s access codes. Any activity that a Subscriber is prohibited from performing by these Terms and Conditions of Services is equally prohibited to anyone using the access to the Services of the Subscriber.
Access Code Protection
3.17 Subscribers shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information.
Notification Regarding these Terms and Conditions of Service
3.18 Subscribers shall notify all persons who receive access to the Services of the provisions of these Terms and Conditions of Service, and shall inform them that the terms of these Terms and Conditions of Service are binding upon them.
3.19 Subscribers shall notify Supplier if and when they learn of any security breaches regarding the Services, and shall aid in any investigation or legal action that is taken by authorities and/or Supplier to cure the security breach.
4. Third-Party Services
4.1 The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. It is your responsibility to protect your system from such items as viruses, worms, Trojan horses and other items of a destructive nature.
5. Payments and Billing
Acceptable Payment Methods
5.1 Supplier accepts major credit cards. Virtual credit cards and gift cards typically will not be accepted. Other forms of payment may be arranged by contacting Supplier at firstname.lastname@example.org. Please note that any payment terms presented to you in the process of using or signing up for paid Services are deemed part of this Agreement.
5.2 We use third-party payment processors (the “Payment Processors”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for use of the paid Services. The processing of payments may be subject to the terms, conditions and privacy policies of the Payment Processors in addition to this Agreement. We are not responsible for error by the Payment Processors. By choosing to use paid Services, you agree to pay us, through the Payment Processors, all charges at the prices then in effect for any use of such paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processors, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
5.3 The term of this Agreement shall be monthly, to commence on the date that the Subscriber signs up electronically for the Services by creating an Account with an email address. All invoices are denominated, and Subscriber must pay, in U.S. Dollars. Subscribers are typically billed monthly on or about the first day of each month, with payment due no later than ten (10) days past the invoice date. On rare occasions, a Subscriber may be billed an amount up to the Subscriber’s current balance in an effort to verify the authenticity of the Subscriber’s account information. This process ensures that Subscribers without a payment history are not subjected to additional scrutiny. Subscribers are entirely responsible for the payment of all taxes. Monthly fees and renewal fees will be billed at the rate agreed to at purchase. Except in the case of subscription commitments you have agreed to, you may cancel the Services at any time by logging into your Control Panel. . Except in the case of subscription commitments you have agreed to, which shall be nonrefundable, as permitted by law, if you cancel, you agree that fees for the first month of Services and any start-up costs associated with setting up your Account (“Start-up Costs”) shall be nonrefundable, as permitted by law.
5.4 Some of the paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation.
5.5 YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
5.6 Payments not made within ten (10) days of invoicing will be deemed in arrears. For accounts in arrears, if any amount is more than ten (10) days overdue, without the requirement of providing notice of such arrears, Supplier may suspend service to such account and bring legal action to collect the full amount due, including any attorneys’ fees and costs.
Suspension for Nonpayment
5.7 If a Subscriber is past due on their balance, Supplier may send up to three (3) email notifications within a fifteen (15) day period before suspending the Subscriber’s account. Servers will be temporarily powered off during the suspension period. Supplier reserves the right to delete the Subscriber’s suspended machines after the final termination notice.
5.8 Redemption of promotional credit is applied by Supplier at its sole discretion including availability and duration of the credit.
6. Warranty Disclaimer and Beta Services
6.1 We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
- which Subscribers gain access to the Services;
- what Content you access via the Services; or
- how you may interpret or use the Content.
6.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE US FROM ALL LIABILITY FOR YOU HAVING ACQUIRED OR NOT ACQUIRED CONTENT THROUGH THE SERVICES. WE MAKE NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, OR LEGALITY OF MATERIAL OR CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
6.3 THE SERVICES, INCLUDING WITHOUT LIMITATION ANY INFORMATION DELIVERED AS PART OF THE SERVICES, AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE WITH DATA, AVAILABILITY, ACCURACY, THAT YOU WILL HAVE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OUR WEBSITE OR THAT THE SERVICES ARE ERROR FREE AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. THE SERVICES CONTAIN INFORMATION PROVIDED BY ONE OR MORE THIRD PARTY DATA PROVIDERS. SUPPLIER DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE INFORMATION PROVIDED BY ANY SUCH THIRD PARTY PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT NEITHER SUPPLIER NOR ANY SUCH THIRD PARTY PROVIDER HAS ANY OBLIGATION TO CORRECT INFORMATION ABOUT YOU EXCEPT AS REQUIRED BY APPLICABLE LAW. INFORMATION YOU REQUEST MAY NOT BE AVAILABLE OR MAY NOT BE PROVIDED, AND SUPPLIER HAS NO LIABILITY FOR SUCH FAILURE. IN NO EVENT WILL SUPPLIER WARRANT OR GUARANTEE THE CORRECTNESS, COMPREHENSIVENESS, COMPLETENESS, ACCURACY, TIMELINESS OF ANY INFORMATION, PRODUCTS, OR SERVICES ON THIS WEBSITE. THE INFORMATION, PRODUCTS, AND SERVICES AVAILABLE ON THE WEBSITE MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. THEREFORE, YOU AGREE THAT YOUR ACCESS TO AND USE OF OUR WEBSITE, PRODUCTS, SERVICES AND CONTENT ARE AT YOUR OWN RISK.
6.4. Supplier may offer “beta” versions or features of the Services (each, a “Beta Service”). Supplier will determine, at its sole discretion, the availability, duration (the “Trial Period”), features, and components of each Beta Service. For avoidance of doubt, any Beta Service is a form of the Services and the provision and use of any Beta Service is subject to the entirety of this Agreement, unless otherwise provided for in this Section 6.4.
ANY BETA SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SUPPLIER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY BETA SERVICE. Notwithstanding anything to the contrary in this Agreement, in no event will Supplier be liable to you or any third party for any damages or liability related to, arising out of, or caused by any Beta Service and/or any modification, suspension, or termination thereof. If Supplier permits you to use a Beta Service, you agree to provide Supplier Feedback and respond to Supplier’s questions or other inquiries regarding your use of the Beta Service, if requested and as applicable. If Supplier permits you to use a Beta Service, you specifically agree, in addition to the requirements set forth in Section 3 of this Agreement, to not: (i) use the Beta Service for benchmarking or performance testing or publicly disseminate performance information or analysis from any source relating to the Service; (ii) modify or create derivative works of the Beta Service or remove any product identification, proprietary, copyright or other notices contained in the Beta Service; or (iii) allow any other individual to access or use the Beta Service. Supplier at its sole discretion shall determine whether or not to continue to offer any Beta Service, and may cease offering any Beta Service at any time. Upon completion of a Trial Period, you may lose access to the applicable Beta Service, unless or until the features of the Beta Service are incorporated into the Services, and you agree to return or destroy all copies of documentation and confidential information related to the Beta Service. Any production candidate or non-production version of the Services will be considered a Beta Service.
Subscriber grants to Supplier a limited license to use, reproduce, distribute, and display any data provided to Supplier by Subscriber and/or any user of a Beta Service solely for facilitating the purposes of this Agreement (such data collectively, “Beta Data”) (i) as required to provide the Beta Service; and (ii) in de-identified form, to tune, enhance and improve the Service and other Supplier products and services. Subscriber represents and warrants that it has all necessary rights to grant Supplier the rights set forth in this Section, and that it will comply with all applicable laws, regulations, and other obligations regarding the collection, use and disclosure of Beta Data. Supplier may use de-identified or aggregated Beta Data collected through a Beta Service for any purpose, including, without limitation, to enhance and improve the Services.
7.1 Subscriber shall keep confidential any confidential information to which it is given access, and shall cooperate with Supplier’s efforts to maintain the confidentiality thereof. Subscriber shall not publish to third parties or distribute information or documentation that Supplier provides for purposes of operating and maintaining its systems, including material contained in estimates, invoices, work orders, or other such materials.
8.1 Subscriber is solely responsible for the preservation of Subscriber’s data which Subscriber saves onto its virtual server (the “Data”). EVEN WITH RESPECT TO DATA AS TO WHICH SUBSCRIBER CONTRACTS FOR BACKUP SERVICES PROVIDED BY SUPPLIER, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER SHALL HAVE NO RESPONSIBILITY TO PRESERVE DATA. SUPPLIER SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF SUBSCRIBER’S FAILURE TO BACKUP ITS DATA OR FOR ANY OTHER REASON.
10. Limitation of Liability
10.1 IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF SUPPLIER HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. SUBSCRIBER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SUPPLIER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. SUBSCRIBER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST SUPPLIER ARISING OUT OF SUBSCRIBER’S PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF SUPPLIER’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.
IN ADDITION, YOU AGREE THAT SUPPLIER IS NOT RESPONSIBLE FOR ANY DATA COMPILED BY OUR SERVICES AND THAT SUPPLIER WILL NOT BE LIABLE, IN ANY MANNER, AS A RESULT OF YOUR EXPOSURE TO ANY DEFAMATORY, LIBELOUS, THREATENING, UNLAWFULLY HARASSING, OBSCENE OR OTHERWISE UNLAWFUL CONTENT OR DATA. IN NO EVENT SHALL SUPPLIER, OR ANY THIRD PARTY PROVIDER OF ANY COMPONENT OF THE SERVICES OR OF ANY INFORMATION DELIVERED AS PART OF THE SERVICES, BE LIABLE TO YOU AND/OR ANY PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, CONTENT, PRODUCTS, THE USE OR INABILITY TO USE THIS WEBSITE, OR ANY LINKED WEBSITE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSSES, LOSS OF PROGRAMS OR OTHER DATA, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF SUPPLIER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT.
SOME JURISDICTIONS LIMIT OR PROHIBIT THE FOREGOING LIMITATIONS, AND IN SUCH JURISDICTIONS THE FOREGOING LIMITATIONS SHALL BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11.1 YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US, OUR AFFILIATES, PARENTS, SUBSIDIARIES, ANY RELATED COMPANIES, LICENSORS AND PARTNERS, AND EACH OF OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, DIRECTORS, SUPPLIERS AND REPRESENTATIVES FROM ALL LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, THAT ARISE FROM OR RELATE TO YOUR (OR ANY THIRD PARTY USING YOUR ACCOUNT OR IDENTITY IN THE SERVICES) USE OR MISUSE OF, OR ACCESS TO, THE SERVICES, CONTENT, OR OTHERWISE FROM YOUR USER CONTENT, VIOLATION OF THESE TERMS AND CONDITIONS OF SERVICE OR OF ANY LAW, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL ASSIST AND COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
12. Termination and Access
12.1 Supplier reserves the right, in our sole discretion, to terminate your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Terms and Conditions of Service or any law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination may result in the forfeiture and destruction of information associated with your Account. Supplier may provide prior notice of the intent to terminate Services to you if such notice will not, in Supplier’s discretion, run counter to the intents and purposes of these Terms and Conditions of Service. Except as otherwise set forth hereunder, any and all fees paid hereunder are non-refundable and any and all fees owed to Supplier before such termination shall be immediately due and payable, including any liabilities that may have been incurred prior to termination such as Supplier’s costs for collection (including attorneys’ fees) of any such charges or other liabilities. Upon termination, any and all rights granted to Subscriber by this Agreement will immediately be terminated, and Subscriber shall promptly discontinue all use of the Services. If you wish to terminate your Account, you may do so by following the instructions on the Website or through the Services. All provisions of these Terms and Conditions of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
13. Choice of Law, Venue, Consent to Email Service and Waiver of Hague Convention Service Formalities
13.1 Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the [Supplier’s main state/province/country of business], without regard to principles of conflict of laws. Subject to Section 15 below, you agree that any dispute arising from or relating to the subject matter of these Terms and Conditions of Service shall be governed by the exclusive jurisdiction and venue of the courts of the [Supplier’s main state/province/country of business]. Subscriber consents to service of process via email at the email address(es) provided by Subscriber, and waives any requirement under the Hague Convention or other judicial treaty requiring that legal process be translated into any language other than English.
14. Dispute Resolution
14.1 Mindful of the high cost of litigation, you and Supplier agree to the following dispute resolution procedure: in the event of any controversy, claim, action or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Services; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and Supplier (“Dispute”), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent (1) if to Supplier at [Supplier’s address] or (2) if to you at: your last-used billing address or the billing and/or shipping address in your Account information. Both you and Supplier agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any arbitration or filing any claim against the other party.
15. Mandatory Arbitration Agreement and Class Action Waiver
15.1 In the interest of resolving disputes between you and Supplier in the most expedient and cost effective manner, you and Supplier agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SUPPLIER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Despite the provisions of Section 15.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, provincial, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
15.3 A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified Canada Post mail (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Supplier’s address for Notice is: [Supplier’s address]. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Supplier may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Supplier must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Supplier will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Supplier in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
15.4 YOU AND SUPPLIER 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. Further, unless both you and Supplier agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.5If Supplier makes any future change to this arbitration provision, other than a change to Supplier’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Supplier’s address for Notice, in which case your account with Supplier will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.6 If Section 15.4 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to these Terms. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16. Miscellaneous Provisions
16.1 Neither you nor Supplier shall be liable for nonperformance of the terms herein to the extent that either you or Supplier are prevented from performing as a result of any act or event which occurs and is beyond your or Supplier’s reasonable control, including, without limitation, acts of God, war, unrest or riot, strikes, any action of a governmental entity, weather, quarantine, fire, flood, earthquake, explosion, utility or telecommunications outages, Internet disturbance, or any unforeseen change in circumstances, or any other causes beyond either party’s reasonable control. The party experiencing the force majeure shall provide the other party with prompt written notice thereof and shall use reasonable efforts to remedy effects of such force majeure.
16.2 You are granted a limited, non-exclusive right to create a hypertext link to the Website provided such link does not portray Supplier and/or its affiliates or any of their respective products and services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked at any time. You may not use, frame or utilize framing techniques to enclose any Supplier trademark, logo or other proprietary information, including the images found at the Website, the content of any text or the layout/design of any page or form contained on a page without Supplier’s express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Supplier or any third party.
16.3 The Website contains many of the valuable trademarks, service marks, names, titles, logos, images, designs, copyrights and other proprietary materials owned, registered and used by Supplier, Including but not limited to, the mark “Supplier”. Supplier and the Supplier product names referenced in the Website are either trademarks, service marks or registered trademarks of Supplier. Any unauthorized use of same is strictly prohibited and all rights in same are reserved by Supplier. No use of any Supplier trademark may be made by any third party without express written consent of Supplier. Other products and company names mentioned in the Website may be the trademarks of their respective owners.
16.4 Elements of Supplier’s Website are protected by trade dress, trademark, unfair competition, and other laws and may not, unless otherwise permitted hereunder, be copied in whole or in part. No logo, graphic, or image from the Website may be copied or retransmitted without Supplier’s express written permission. The images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website are the property of Supplier or its licensors and are protected by copyright, trademark and other laws. In addition to our rights in individual elements of the Website, Supplier owns copyright or patent rights in the selection, coordination, arrangement and enhancement of any images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website. You may copy such images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website for your personal or educational use only, provided that each copy includes any copyright, trademark or service mark notice or attribution as they appear on the pages copied. Except as provided in the preceding sentence, none of such images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website may be copied, displayed, distributed, downloaded, licensed, modified, published, reposted, reproduced, reused, sold, transmitted, used to create a derivative work or otherwise used for public or commercial purposes without the express written permission of Supplier.
16.5 This Agreement, including all related agreements and policies incorporated by reference herein, constitutes the entire agreement between the parties related to the subject matter hereof and supersedes any prior or contemporaneous agreement between the parties relating to the Services. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. In order for any waiver of compliance with these Terms and Conditions of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives. If any provision of this Agreement is prohibited by law or held to be unenforceable, that provision will be severed and the remaining provisions hereof shall not be affected such that this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. This Agreement may be signed electronically or, as set out above, your access and use of the Services will manifest your consent to this Agreement. These Terms and Conditions of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and Conditions of Service and neither party has any authority of any kind to bind the other in any respect. The section and paragraph headings in these Terms and Conditions of Service are for convenience only and shall not affect their interpretation. All references to “laws,” “rules,” or “regulations” references any and all applicable laws, rules and regulations, whether domestic or foreign. Unless otherwise specified in these Terms and Conditions of Service, all notices under these Terms and Conditions of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.