These Customer Terms of Service (these “Customer Terms”
) describe your rights and responsibilities when using our mobile and/or web-based software platform and related services (the “Services”
). If you are a Customer (defined below), these Customer Terms govern your access and use of our Services. These Customer Terms do not govern your purchase of insurance products from us or our designee(s); such purchases are governed by the separate insurance policy to which you and we have agreed.
These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding “Agreement”
between Customer and us. “We”
, and “us”
refer to Paladin Data Insurance Corp. (or its successors or assigns).Please read these terms carefully to ensure you understand each provision. These Customer Terms contain a jury trial waiver provision and a mandatory arbitration provision.
If you subscribe to, or access or use the Services, create an organization, invite users to that organization, or use or allow use of that organization after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Agreement and agree to the Agreement on behalf of Customer. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.
1. General Provisions
1.1 Customers, Authorized Users, and Customer Content“Customer”
”, as used throughout this Agreement, refers to the organization that you, the individual agreeing to this Agreement, represent in agreeing to the Agreement or, if you are an individual agreeing to this Agreement on behalf of yourself, you. If your organization is being set up by someone who is not formally affiliated with a business entity or other organization, Customer is the individual creating the organization. If you signed up for a subscription plan using your corporate email domain or are otherwise entering into a subscription plan on behalf of a business entity or other organization, the business entity or other organization on whose behalf you signed up is the Customer. By signing up on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to the Agreement.
Individuals authorized by Customer to access the Services (each an “Authorized User”
) may submit content or information to the Services, which may include Personal Data (defined below) and User Content (defined below) (“Customer Content”
), and Customer will have the sole right and responsibility for managing your use of it. Customer will be solely responsible for all of the acts and omissions of its Authorized Users in relation to the Services and this Agreement. The Services are not intended for and should not be used by anyone under the age of 13. Customer must ensure that all Authorized Users are over 13 years old.
Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Content; and (b) obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in the Agreement and for the lawful use and transmission of Customer Content and the operation of the Services.
A subscription allows Customer and its Authorized Users to access the Services. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each an “Order Form”
). Subscriptions commence when we make them available to Customer and continue for the term specified in the Services or in the Order Form, as applicable.
1.3 Beta Products
Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”
). Beta Products are made available on an “as is,” and “as available" basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for other Services.
Customer and its Authorized Users may choose to, or we may invite them to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”
). By submitting any Idea, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation, whether to Customer, the Authorized User, or anyone else, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than Customer or its Authorized Users.
] for more information on how we collect and use data relating to the use and performance of our websites and products, including personal information about our Customers and Authorized Users.
We will process any information relating to identified or identifiable natural persons, which is included in the Customer Content (“Personal Data
”) only under the instruction and on behalf of Customer. We will not process Personal Data for other purposes. You acknowledge and agree that processing based on the provisions in this Agreement and in the product documentation qualify as Customer’s instruction. . Generally, Personal Data means, as appropriate to the laws that are applicable to us and the identified or identifiable natural person whose information has been provided to us, “personal information”, “personally identifiable information”, or such other similar term under applicable data privacy laws that applies to such person.
The protection of Personal Data is important to us. Accordingly, we will maintain reasonable administrative, physical, and technical safeguards designed to protect Personal Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Personal Data by our personnel. Before sharing Personal Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Personal Data and preventing unauthorized access. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Personal Data, we will promptly notify Customer and will use reasonable efforts to cooperate with Customer’s investigation of the incident. If such incident triggers any third-party notice requirements, Customer (not us) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. Customer (not us) bears sole responsibility for adequate security, protection and backup of Personal Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible, and Customer is fully responsible, for what Customer’s Authorized Users do with Personal Data.
We are custodians of Personal Data. During the term of Customer’s subscription, Customer will be permitted to export or share certain Personal Data from the Services; provided, however, that Customer acknowledges and agrees that the ability to export or share Personal Data may be limited or unavailable depending on the type of Services plan in effect and the data retention settings enabled.
2. Services Usage and Restrictions
2.1 Our Licenses to Customer
(a) Ownership of the Services, Documentation, and Paladin Data
We own and will continue to own our Services and Documentation, including all related intellectual property and other proprietary rights related thereto. Further, Customer acknowledges and agrees that we may collect data relating to Customer’s and its Authorized Users’ usage of the Services, including but not limited to event triggers on the enable/disable of security features, network traffic and specific usage of our software (“Usage Data
”) and collect, analyze, and use data derived from User Content that has been aggregated and/or anonymized such that it does not identify Customer or any identifiable individual person (“Derivative Data
” and, collectively with Usage Data, “Paladin Data
”). All Paladin Data will be owned solely and exclusively by us and, for purposes of clarity, you agree that we may use the Paladin Data in perpetuity for any purpose permitted by applicable law.
We may, from time to time, make available certain third-party products and services, including but not limited to open source software (“Third-Party Products
”) for use in connection with the Services. Such Third-Party Products may be made available under separate or additional terms and conditions, including but not limited to open source licenses, which we will make available to you as necessary.
(b) Licenses to the Services and Documentation
For the duration of the subscription, we grant the Customer a non-exclusive, non-transferable license to access and use, and to permit Authorized Users to access and use the Services, in accordance with this Agreement, for the Customer's own internal business purposes.
To the extent that we may make downloadable software components available, via app stores or other channels, as part of the Services, for the duration of the subscription, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services. Minor updates, bug fixes, and the like to such downloadable software components will be included under this license for the duration of the subscription.
From time to time we may make available product documentation for the Services (the “Documentation
”) via a method of our choosing (e.g.
, via the Services). For the duration of the subscription, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the Documentation to support Customer’s and its Authorized Users’ use of the Services.
All rights and licenses granted herein are subject to you and your Authorized Users’ full compliance with all of the terms and conditions of this Agreement. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.
2.2 Customer’s Licenses to Us
(a) Ownership of Customer Content
As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Content, including, for purposes of clarity, Personal Data and User Content.
(b) License to Personal Data
Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Personal Data, only as reasonably necessary (a) to provide and maintain the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Personal Data from its Authorized Users or any third parties as may be necessary to grant this license.
Notwithstanding the foregoing, Customer agrees that we may collect, analyze, use and disclose, during or after the term of this Agreement, data derived from Personal Data, which is anonymized and/or aggregated in a manner, that makes the identification of Customer or any Authorized User or third party impossible, for any business purpose, including without limitation, to operate, analyze, improve, and market the Services and our other products and services and share such anonymized data with our affiliates and business partners; provided that we will not use any of your User Content (defined below) except to the extent expressly permitted in the immediately following paragraph. Customer further agrees that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such derived data.
(c) License to User Content
With respect to that portion of Customer Content that consists of videos, images, music, comments, questions, documents, and any other content or information submitted, posted, or otherwise made available by Customer and its Authorized Users through the Services (“User Content”
), by submitting, posting, storing, or otherwise making such User Content available through the Services, Customer grants, and represents and warrants that it has all rights necessary to grant (including without limitation any necessary consents and authorizations from individual persons identified in the User Content and licenses from third-parties whose content is included in the User Content), to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, list information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content, and the names, voice, and/or likeness contained in the User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, solely for use in connection with our provision of the Services as described in this Agreement and our product documentation.
To the extent permitted under applicable law, we take no responsibility and assume no liability for any User Content that Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services. As between Customer and us, Customer shall be fully responsible for the User Content and the consequences of submitting, posting, or otherwise making it available via the Services, and Customer acknowledges and agrees that we are acting only as a passive conduit for Customer’s and its Authorized Users’ online distribution of such User Content.
2.3 Responsibilities for Customer Content
We are not responsible for the content of any Customer Content or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Content. Customer represents and agrees that Customer is solely responsible for (i) providing notices and obtaining consents as legally required from its Authorized Users for the collection, use, processing and transfer of Customer Content in connection with the Services; and (ii) ensuring compliance with all laws in all jurisdictions that may apply to Customer Content provided hereunder, including but not limited to all applicable international, federal, state, provincial and local laws, rules, and regulations relating to data privacy and security. Unless otherwise agreed to in writing, Customer may not submit any Customer Content that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), the Children's Online Privacy Protection Act (COPPA), or the European General Data Protection Regulation (GDPR) or any other data which is considered to be sensitive or which could give rise to notification obligations under data breach notification laws. We do not make any representations as to the adequacy of the Service to process your Customer Content or to satisfy any legal or compliance requirements which may apply to your Customer Content, other than as described herein.
2.4 Use of the Services
Customer must comply with the Agreement and ensure that its Authorized Users comply with the Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by Customer’s removal of certain Customer Content, we will, in most cases, ask Customer to take direct action rather than intervene. However, to the extent legally permissible, we reserve the right to take further appropriate action, when we deem it reasonably appropriate if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
2.5 Acceptable Use
(a) Technical Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the servers hosting the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
Accessing any audiovisual content that may be available on the Services for any purpose or in any manner other than Streaming is expressly prohibited unless explicitly permitted by the functionality of the Services. “Streaming
” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Services to an Authorized User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the Authorized User.
(b) Customer Content Restrictions
You are solely responsible for the content of any Customer Content you submit through the Services. You agree not to submit any Customer Content, including but not limited to any User Content, that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics.
You agree that any Customer Content that you submit does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. To the extent legally permissible, we reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates any of these provisions. You understand that publishing your User Content on the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
2.6 Customer Support
Subject to the terms and conditions of this Agreement, we will provide the support services described from time to time on our Support page
] for the subscription offering you have purchased.
3. Payment Obligations
3.1 Payment Terms
Fees for our subscription offerings can be found on our Pricing and Service Offerings page [https://www.meetpaladin.com/#pricing] or in the Order Form(s). Payment obligations are non-cancelable and, except as expressly stated in the Agreement, fees paid are non-refundable. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”
). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) we may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse us for all costs incurred in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, we may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
3.2 Billing Policies
If you elect to purchase a subscription to use our Services, or certain other paid aspects of the Services, you agree to the pricing communicated to you by us. We may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in our sole discretion, by giving you at least sixty (60) days' written notice, such increase to take effect at the beginning of the next billing cycle. If you are unhappy with the increase, you may give notice to terminate the Agreement, by giving at least thirty (30) days' written notice to us, such notice to expire no later than the end of the then-current billing cycle. The fees will not increase during the notice period; otherwise, any change to such pricing shall become effective in the billing cycle following notice of such change as provided under the Agreement.
3.3 Payment Information
We use a third-party payment processor, currently Stripe, Inc. [https://stripe.com/] (“Payment Processor
”), to process payments you make in connection with the Services. Please see Payment Processor’s privacy statement available on its website for information on how Payment Processor collects and uses personal information. Payment must be received by Payment Processor before our acceptance of an order, and must use one of the payment methods accepted by the Payment Processor. We do not view or store your full credit card or other payment method information. You acknowledge and agree that we are not responsible for any breaches of credit card or other payment method security or privacy.
For all payments, Payment Processor will collect your payment method details and charge your chosen payment method in connection with an order. For monthly subscriptions, such charges will occur on a monthly basis in arrears for the immediately preceding month unless otherwise mutually agreed. For annual subscriptions, such charges will occur annually and we will charge you or refund you for the prorated difference in Authorized User count through the end of the subscription period.
You represent and warrant that: (a) the account, order, and payment method information you supply to us or Payment Processor, as applicable, is true, correct, and complete; (b) you are duly authorized to use such payment method; (c) you will pay any charges that you incur in connection with the Services, including any applicable taxes; (d) charges incurred by you will be honored by your payment method company; (e) you will pay all charges incurred by you at the posted prices, including all applicable taxes, if any; (f) you will not allow anyone else to use your subscription; (g) you will not transfer your subscription or password to anyone else; and (h) you will report to us any unauthorized or prohibited access or use of your subscription or password.
If any of your account, order, or payment method information changes, you agree to promptly update this information, so that we or Payment Processor may complete your transactions and contact you as needed. We are not liable for any unauthorized use of your credit card, debit card, or other payment method by a third-party in connection with your use of the Services or your subscription.
3.4 Audit Rights and Required Records
Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the subscription term and for a period of at least two (2) years after the termination or expiration thereof with respect to matters necessary for determining amounts due under this Agreement. We may, at our own expense, on reasonable prior notice, periodically inspect and audit Customer’s facilities and records with respect to matters covered by this Agreement; provided that if such inspection and audit reveals that Customer has underpaid us with respect to any amounts due and payable during the subscription term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 3.1. Customer shall pay for the cost of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any calendar quarter. Such inspection and auditing rights will extend through the subscription term and for a period of two (2) years after the termination or expiration thereof.
4. Term and Termination
4.1 Agreement Term
As further described below, a free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all subscriptions and all Order Forms.
Unless otherwise set forth in an Order Form, (a) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will be the then-current price communicated to you by us. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop a subscription from automatically renewing.
4.3 Termination for Cause
We or Customer may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Agreement caused by its Authorized Users. We may terminate the Agreement immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.
4.4 Termination Without Cause
We may terminate this Agreement without cause, but we will provide Customer with thirty (30) days prior written notice. If you are an individual utilizing certain Services that we make available without charge, you may terminate this Agreement without cause at any time by providing us with written notice to [email protected]
4.5 Effect of Termination
Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination. Upon any termination of this Agreement, all rights granted to you under this Agreement is immediately terminated and you may not access, install, or use any Services thereafter unless you purchase a new subscription.
5. Representations; Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Agreement. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
6. Limitation of Liability
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement and the pricing for the Services.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer agrees to defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) Customer’s and any Authorized User’s use of and access to the Services, including any Customer Content or other content transmitted or received by Customer or any Authorized User; (b) your violation of any term of the Agreement, including without limitation any breach of Customer’s representations and warranties above; (c) Customer’s or any Authorized User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) Customer’s or any Authorized User’s violation of any applicable law, rule or regulation; (e) Customer Content or any content that is submitted via Customer’s or any Authorized User’s account, including without limitation misleading, false, or inaccurate information; (f) Customer’s or any Authorized User’s gross negligence, fraud, or willful misconduct; or (g) any other party’s access and use of the Services with Customer’s or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault).
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Content. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
8.2 Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Agreement.
8.3 Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
Neither party may publicly use the other party’s company name, logo, or other trademarks for any purpose without the other party’s prior written consent.
9.2 Third Party Products, Links, and Information
9.3 Force Majeure
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
9.4 Relationship of the Parties; No Third Party Beneficiaries
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
9.5 Email Communications
Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to [email protected]
. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
We may change these Customer Terms and the other components of the Agreement (except any Order Forms) in accordance with this Agreement. If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety (including all Order Forms), without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.10 Governing Law
The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of the Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
9.11 Venue; Waiver of Jury Trial; Fees
The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.
In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
9.12 ArbitrationRead this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us.
For any dispute with us, you agree to first contact us at [email protected]
and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in San Francisco County, California, unless we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
9.13 Entire Agreement
The Agreement, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) these Customer Terms; and (3) any other documents or pages referenced in these Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.
9.14 Additional Terms for Mobile Applications
The following applies to any downloadable software used to access any Services that is acquired from the Apple App Store (“Apple-Sourced Software
”): Customer acknowledges and agree that this Agreement is solely between Customer and us, not Apple, Inc. (“Apple”
) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Customer’s use of the Apple-Sourced Software must comply with the App Store Terms of Service. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software (if any); to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by the Agreement and any law applicable to us as provider of the software. Customer acknowledges that Apple is not responsible for addressing any claims by Customer or any third party relating to the Apple-Sourced Software or Customer’s possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by the Agreement and any law applicable to us as provider of the software. Customer acknowledges that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. Customer and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to Customer’s license of the Apple-Sourced Software against Customer as a third-party beneficiary thereof.
Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including but not limited to Sections 1.4, 2.2, 2.3, 2.6, 4.5, and 5 through 9.
9.16 Contacting Us
Please also feel free to contact us if you have any questions about the Customer Terms or any other part of the Agreement. You may contact us at [email protected]
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.