TERMS AND CONDITIONS
Thank you for choosing Market, provided by Trust Software Inc. (the “Company”, “we”, “us”, “our”). These are the terms and conditions, as may be hereafter amended restated, supplemented, or otherwise modified from time to time at Company’s sole discretion, (together with the applicable order forms, statements of work, collectively referred to as the “Agreement”), that apply to your access and/or use of the Company’s website located at www.withmarket.com (the “Site”) and to any products or services made by available by Company, including without limitation, any customizations, platforms, professional services, functionality, and/or software performed or provided by Company, whether the foregoing is made available on or through the Site, or by any other means in connection with any purchase, or any other services provided by the Company (together with the Site, collectively referred to as the “Services”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING, USING, OR REGISTERING FOR THE SERVICES. BY COMPLETING YOUR REGISTRATION AND/OR CLICKING ON THE "I ACCEPT" BUTTON BELOW, BY ACCESSING AND/OR USING THE SERVICES, OR BY ENTERING INTO ANY ORDER FORM OR STATEMENT OF WORK RELATED TO THESE SERVICES, YOU AND, ON BEHALF OF THE ENTITY NAMED IN AN ORDER FORM OR STATEMENT OF WORK, WILL BECOME A USER (COLLECTIVELY REFERRED TO AS A "USER," "YOU," "YOUR," "YOURS") OF THE SERVICES. YOU AGREE TO BE BOUND BY THIS AGREEMENT AT ALL TIMES, AS THESE TERMS MAY BE AMENDED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE REFRAIN FROM USING, ACCESSING, OR REGISTERING FOR THE SERVICES. THE AGREEMENT IS SUBJECT TO CHANGE BY THE COMPANY AT ANY TIME; HOWEVER, THE MOST CURRENT VERSION OF THE AGREEMENT WILL BE AVAILABLE ON OR THROUGH THE SERVICES. WE ENCOURAGE YOU TO REGULARLY REVIEW THE AGREEMENT TO ENSURE THAT YOU ARE AWARE OF ANY CHANGES. BY CONTINUING TO USE THE SERVICES YOU AGREE TO BE BOUND BY THE THEN MOST CURRENT VERSION OF THE AGREEMENT, WHICH MAY BE AMENDED FROM TIME TO TIME.
1. PROVISION OF SERVICES.
- Company Provision of Services. Subject to Company’s full payment for the Services and compliance with the Agreement, Company will make Services available to User during the Term for their internal business purposes in accordance with the Agreement.
- Professional Services. Company may also provide professional services as may be further specified in a statement of work. All professional services, including any output, deliverables, customizations, or results of any kind will be solely owned by Company and may only be used by you so long as you are in compliance with the terms of this Agreement and accessing the Services pursuant to an order form entered into by and between Company and you.
- Delays. Any delays due to any acts or omissions by you may result in additional applicable charges for resource time and Company will not be liable or responsible in any way for any such delays. All deliverables will be deemed accepted by you upon completion by Company.
- Cooperation. You shall provide the access, resources, equipment, materials, personnel, information, consents, and full good faith cooperation reasonably necessary to enable Company to perform and deliver the Services. If while performing Services, Company requires access to another vendor’s products that are part of your system, you will be responsible for acquiring all such products and the appropriate license rights necessary for Company to access such products on your behalf.
2. USE OF SERVICES.
- Registration. By registering for, using or receiving the Services, you: (a) represent that you are 18 years of age or older; (b) represent that you have the legal capacity and authority to bind yourself and/or the person or entity for whom you are accepting this Agreement; (c) acknowledge that the Company has and will rely upon the information and data that you provide and that any incorrect or incomplete information that you provide to the Company may result in the Company withholding, suspending or terminating the Services and/or terminating this Agreement; and (d) agree to be bound by this Agreement, as it may be updated by the Company from time to time in its sole discretion.
- Security of the Services. You are responsible to keep your password(s) secure, and you agree not to disclose your password(s) to any third party. You are solely responsible for any activity that occurs under your usernames and accounts. You expressly agree that you will not resell the Services. You may not assign your obligations under this Agreement to any other party.
- Restrictions on Use. You are fully liable for any unauthorized access to, or misuse of, the Services and Company will not be liable in any way. By using the Services, you agree that you will not: (a) access or use the Services in the manner which is not authorized by the Agreement and any other documents we may provide to you; (b) use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services; (c) attempt to gain unauthorized access to the Services (or computer systems or networks connected to the Services) through hacking, password mining, or any other means; (d) engage in any activities with respect to the Services that violate any applicable local, state, national or international laws or regulations, the intellectual property or other rights of third parties, or submit or transmit any material that is abusive, defamatory, obscene, threatening, or otherwise inappropriate, as reasonably determined by the Company; (e) license, sublicense, sell, resell, transfer, rent, lease, assign, distribute, disclose, or otherwise commercially exploit the Services; (f) copy, modify or make derivative works based upon the Services; (g) “frame” or “mirror” the Services on any other server or device; (h) access the Services for competitive purposes or use the Services for application service provider, timesharing or service bureau purposes, or any purpose other than its own internal use, (i) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Services, (j) remove, obscure or modify a copyright or other proprietary rights notice in the Service; or (k) permit or assist any other party (including any User) to do any of the foregoing.
- Your Responsibilities. You shall: (a) be responsible for your compliance with the Agreement and any applicable documentation that may be provided or made available by Company; (b) be responsible for the accuracy, quality and legality of the data that you input into the Services (“User Data”), the means by which you acquired User Data, your use of User Data with the Services, and the interoperation of any third-party applications with which you use Services or Content (as defined further below); (c) prevent unauthorized access to or use of Services and Content, and notify Company immediately of any such unauthorized access or use; (d) comply with terms of service of any third party applications with which you use Services or Content; and (e) use Services and Content only in accordance with this Agreement, Documentation, order forms and applicable laws and regulations, including without limitation, all state, federal and international: (i) consumer cancellation rights; (ii) mandatory disclosures; (iii) internal opt-out rules; (iv) intellectual property rights and restrictions; and (v) other product and industry specific rules and disclosures. Any use of the Services in breach of the foregoing by you that in Company’s judgment threatens the security, integrity, or availability of the Services, may result in Company’s immediate suspension of the Services. All our offers are void where prohibited by law. You must review these rules with your own legal counsel to ensure that you understand and are fully compliant. We do not assume responsibility for ensuring that your marketing campaigns meet applicable legal requirements. We will not assume any liability if you are ever held guilty or liable for any law violation. Notwithstanding the foregoing, if Company, in its sole judgment, believes that you may have violated the law, we may suspend or terminate your use of the Services immediately. You realize and agree that we may be required by law to provide certain information about you if we receive a subpoena from a court or regulator with competent jurisdiction. We are under no obligation to object to the same, except in our sole discretion. In the event you are suspended by Company for any breach or suspected breach of this Agreement, you will remain fully liable for any fees owed during such suspension period and will be obligated to remedy any such breach or suspected breach in accordance with Company’s requirements.
- User Reassignment. User subscriptions are for designated Users and cannot be shared or used by more than one User unless otherwise specified in the relevant order form. You agree to be liable for any fees owed with respect to any additional Users in violation of this Section. Additional order forms may be needed for additional Users as determined by Company.
- Service Interruptions. The Services are web-based and may be interrupted or negatively affected by items outside of our control. The Company may also discontinue any of the Services from time to time in its sole discretion. We are not liable to you for interruptions to or problems with the Services for any reason caused by or resulting from acts beyond our reasonable control, including but not limited to: acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, e-business software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services; failure of access circuits to our computer network, DNS (domain name server) issues outside our direct control; issues with FTP, POP3, SMTP, or any items relating to your access to Services; your acts or omissions (or acts or omissions of others engaged or authorized by you), including, without limitation, custom scripting or coding (e.g., COI, Python, HTML, ASP, etc.), any negligence, willful misconduct, or use Services in breach of this Agreement; e-mail or WebMail delivery and transmission; DNS propagation; or outages elsewhere on the internet that hinder access to the Services. Company is not liable for any failure of any equipment or services used by you to use the Services.
- Third-Party Products and Services. Company or third parties may make available third-party products or services. Any acquisition or use by you of such products or services, and any exchange of data between you and any third-party provider, product or service is solely between you and the applicable third-party provider. Company does not warrant or support third-party applications or other third-party products or services, whether or not they are designated by Company as “certified” or otherwise, unless expressly provided otherwise in an order form to this Agreement. Company is not responsible for any disclosure, modification or deletion of your data resulting from access by such third-party application or its provider.
- Integration with Third-party Applications. The Services may contain features designed to interoperate with third-party applications. Company cannot guarantee the continued availability of such Service features and may cease providing them without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a third-party application ceases to make the third-party application available for interoperation with the corresponding Service features in a manner acceptable to Company.
- Removal of Content and Third-party Applications. If you receive notice, including from Company, that information obtained by Company from publicly available sources or its third-party content providers and made available to you through the Services (“Content”) or a third-party application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or Company policies, you will promptly do so. If you do not take required action, including deleting any Content that you may have downloaded from the Services, in accordance with the above, or if in Company’s judgment continued violation is likely to reoccur, Company may disable the applicable Content, Service and/or third-party application. If requested by Company, you shall confirm deletion and discontinuance of use of such Content and/or third-party application in writing and Company shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Company is required by any third-party rights holder to remove Content, or receives information that Content provided to you may violate applicable law or third-party rights, Company may discontinue your access to Content through the Services.
- Confidential information. You acknowledge that, in connection with the performance of this Agreement, you may receive certain confidential information of Company, which confidential information shall include information relating to the Services and this Agreement. You hereby agree: (a) to hold and maintain in strict confidence all confidential information of the Company and not to disclose it to any third party; and (b) not to use any confidential information of the Company except as permitted by this Agreement or as may be necessary to exercise rights or perform obligations under this Agreement. If you disclose or are required to disclose confidential information, you shall provide immediate notice to Company prior to any disclosure to afford Company a reasonable opportunity to protect the confidential information from public disclosure and will reasonably assist Company with such protection. Except as expressly provided in this Agreement, if you discloses or use (or threatens to disclose or use) any confidential information of the Company in breach of confidentiality protections hereunder, the Company shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by you that any other available remedies may be inadequate.
- Use of Data. In connection with providing the Services, you agree that the Company may collect, use, reproduce, modify, derive, distribute, and disclose data from your use of the Services for its business purposes, including, but not limited to, service improvements, industry analysis, benchmarking, analytics, marketing, and supporting the usage of the Services.
- Intellectual Property. All logos associated with the Company, whether trademarks or registered trademarks, are the property of the Company or its licensors. You are prohibited from copying, imitating, or using these logos without the prior written consent of the Company. Additionally, all page headers, custom graphics, button icons, and scripts constitute service marks, trademarks, and/or trade dress of the Company. You may not copy, imitate, or use them without the Company's prior written consent. The exclusive ownership of all rights, title, and interest in the Company website, its content, the technology related to the Company, and any content or technology derived from the aforementioned, resides with the Company and its licensors.
- Ownership. You acknowledge that you have no ownership, rights, title, or any other interest in the Services (including all derivatives, data, professional services, customizations, translations, modifications, and enhancements thereof), which are exclusively owned or licensed by Company, irrespective of any provision in this Agreement, order form, or statement of work. All rights, title, and interest, including intellectual property interests, in and to the Services are the exclusive property of the Company. This Agreement does not constitute a transfer of title or ownership of the Services or their documentation to you. The Company name, logo, and product names are trademarks owned by the Company, and no right or license is granted to use them without prior written consent. Any suggestions, enhancement requests, specifications, feedback, or recommendations provided by you or any third party relating to the Services shall solely belong to the Company. All rights not expressly granted to you under this Section are expressly reserved by the Company.
- Modifications and Improvements. Any modifications, customizations, enhancements, improvements, or alterations to the Services, whether made by the Company, you, or any non-party, shall exclusively belong to the Company as its intellectual property. You are not granted any rights to such intellectual property. If requested by the Company, you agree to execute any necessary documents to reaffirm the Company's right, title, and interest in its intellectual property rights related to the Services.
3. REPRESENTATIONS AND WARRANTIES. You represent and warrant each of the following:
- Organization; No Conflicts. You (a) have the full power to enter into this Agreement, and (b) You are an entity validly existing and in good standing under the laws of the state or jurisdiction in which User is formed or organized.
- Compliance with Laws. You are and will remain in compliance with all applicable laws, rules, and regulations.
- Disclosure. All reports, financial statements, certificates, and other information delivered by you, or on your behalf, to us in connection with the transactions contemplated by this Agreement is, and shall be, true and correct in all material respects and does not, and shall not, omit to state a material fact the omission of which would render such information misleading.
- Valid Business Purpose. You are not a consumer and are entering into this Agreement for business and commercial purposes and not for personal, family, household, or consumer purposes.
- Restricted Business. Your business does not operate in a high-risk industry.
- Export Control. The Services may be subject to export laws and regulations of the United States and other jurisdictions. You agree to comply with such restrictions and not to export or re-export the Services or any portion thereof to countries or persons prohibited under the export control laws. You represent that you are not named on any government list of persons or entities prohibited from receiving exports, and (ii) shall not, and shall ensure that Users do not, violate any export embargo, prohibition, restriction, or other similar law in connection with this Agreement.
- No Bankruptcy. You do not contemplate filing or have filed a petition for bankruptcy protection or other form of reorganization (including, without limitation, an assignment for the benefit of creditors) and there has been no involuntary petition threatened or filed against you. You do not anticipate filing any such bankruptcy petition or other form of reorganization (including, without limitation, an assignment for the benefit of creditors) and do not anticipate that an involuntary petition will be filed against you. You are not currently contemplating bankruptcy or insolvency proceedings.
4. DISCLAIMER OF WARRANTIES.
THE COMPANY (INCLUDING ITS SUPPLIERS AND/OR LICENSORS) MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AS TO THE PERFORMANCE, FUNCTIONALITY OR LEGAL COMPLIANCE OF THE SERVICES. THE SERVICES ARE BEING PROVIDED TO YOU “AS IS” AND ON AN “AS AVAILABLE” BASIS, EXCLUSIVE OF ANY WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, CORRECTNESS, PRECISION, THOROUGHNESS, COMPLETENESS OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET USERS’ REQUIREMENTS. NO ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN OR IN THIS AGREEMENT. WE ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR PROPERTY (INCLUDING YOUR COMPUTER EQUIPMENT, MOBILE DEVICE OR OTHER PROPERTY) ON ACCOUNT OF YOUR ACCESS OR USE OF THE SERVICES. YOU USE THE SERVICES AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY (INCLUDING ITS SUPPLIERS AND/OR LICENSORS) SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ANY THIRD-PARTY LINKS, RESOURCES, AND CONTENT AVAILABLE WITH THE SERVICES ARE NOT CONTROLLED BY THE COMPANY, AND THE COMPANY DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH THIRD-PARTY LINKS, RESOURCES, AND CONTENT INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT. THE COMPANY WILL NOT BE LIABLE FOR YOUR ACCESS TO, USE OF OR DOWNLOADING OF CONTENT AVAILABLE ON OR THROUGH, THE SERVICES.
5. TERM; CANCELLATION; TERMINATION; REMEDIES.
- Term. This Agreement commences when you accept it and continues until all order forms, statements of work, and/or subscriptions hereunder have expired or have been terminated or canceled by either party as specifically authorized herein (“Term”).
- Cancellation. We reserve the right to suspend or cancel the Services at any time if you fail to pay amounts owing when due, violate or breach any of the Agreement, or for any other reason at our sole discretion. If the Services are suspended or canceled, you will still be responsible for payment of all outstanding balances accrued through the remainder of the month or other cancellation date, including any fees described herein. Upon termination of the Services, you will no longer have access to the Services. Upon cancellation, you will not be entitled to any return or refund of any amount that you have paid for the Services, even if you have prepaid such amounts. Cancellation of the Services revokes your license and ends your rights thereunder. In case of such cancellation, you will immediately cease use of the Services.
- Termination. Company may immediately terminate this Agreement at its convenience.
- Remedies. The remedies described herein are in addition to any other remedies available to us at law or equity. Company shall have the right to exercise any available rights and remedies at the same or different times.
- Billing and Payment of Fees. You shall pay all fees in accordance with the payment terms as specified in the applicable order form. All payments will be due within thirty (30) days from the invoice date. If any such invoice is more than ten (10) days past due, Company may, without limiting its other rights and remedies, suspend your access to the Services until such invoice is paid in full. All payment obligations are non-cancellable, and all amounts paid are nonrefundable except as otherwise specified in an order form or statement of work. Unless otherwise agreed to in an order form or statement of work, Company reserves the right to increase its fees at any time upon notice to you.
- Late Fees. If any invoiced amount is not received by Company by the due date, then without limiting Company’s rights or remedies, (a) those charges may accrue interest at the rate of 7% of the outstanding balance per month, or the maximum rate permitted by law, whichever is greater, or (b) Company may condition future term renewals and order forms on payment terms shorter than those specified in the Agreement before such future renewal.
- Taxes. Company’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) and you shall be responsible for payment of all Taxes associated with this Agreement.
- Invoicing. You shall cooperate diligently to enable the invoicing process and you shall provide to Company at least the following information in writing to facilitate invoicing: your full registered company/legal entity name, registered office address, goods and services tax identification number, address and/or relevant information required under applicable law. Any error/delay in issuance of the electronic invoice due to: (a) the provision by you of incorrect or insufficient invoicing information preventing Company from successfully submitting or processing the invoice; or (b) any event which requires Company to issue an invoice again; shall not result in an extension of the payment term set out in this Section, and such term shall still be calculated from the date of the original invoice. Company reserves the right to provide any invoice copy in electronic form via email in addition to the invoicing described herein.
- Costs and Expenses. Notwithstanding the above, you shall, within ten (10) days of demand therefor, pay all reasonable costs and expenses incurred by Company (including all fees, charges and disbursements of counsel) in connection with (a) the administration of this Agreement, (b) any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (c) the enforcement or protection of Company’s rights in connection with this Agreement.
- Arbitration Provision. Company and you each elect to resolve any and all claims and disputes relating in any way to this Agreement or their dealings with one another (“Claims”), except for Claims concerning the validity, scope, or enforceability of this Section 7 (this “Arbitration Provision”), through binding individual, non-class-action arbitration. Company and you each understand and agree that by allowing each other to elect to resolve any dispute through individual arbitration, BOTH PARTIES EXPRESSLY WAIVE THE RIGHT TO A COURT OR JURY TRIAL AND NO CLAIM FILED IN COURT WILL BE HEARD BY A JURY OR TAKE PLACE ON AN INDIVIDUAL BASIS. FURTHERMORE, YOU SHALL RESOLVE ANY DISPUTE BY ARBITRATION AND SUCH DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR SUCH PROCEEDING. The arbitrator(s) may not consolidate more than one party's claims (except Claims by or against one party with respect to this Agreement involving the parties) and may not preside over any form of a representative or class proceeding.
- Arbitration Rules. Arbitration of any dispute under this Arbitration Provision shall be administered by the American Arbitration Association (the “AAA”) pursuant to the applicable rules of AAA in effect at the time the arbitration is initiated. In the event that AAA is unable or unwilling to administer the arbitration of a dispute, then a dispute may be referred to any other arbitration organization at Company's sole discretion. Arbitrations shall be conducted before a single arbitrator. The arbitration shall take place in the federal judicial district and the arbitrator shall apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA") and applicable statutes of limitations and shall be authorized to award any relief that would have been available in court; provided that the arbitrator's authority to resolve claims and make awards is limited to any and all claims between Company and you except as otherwise specifically stated herein. The decision by the arbitrator shall be final and binding on the parties. Company and you agree that this Arbitration Provision extends to any other parties involved in any Claims, including, without limitation, to Company’s and your employees, affiliated companies, and vendors. In the event of any conflict between this Arbitration Provision and the AAA arbitration rules or the rules of any other arbitration organization or arbitrator, this Arbitration Provision shall govern.
- Arbitration Fees and Costs. The arbitration fees shall be borne equally by Company and you.
- Exceptions. Notwithstanding any other provision of this Agreement, Company and you agree that this Arbitration Provision does not stop either Company or you from exercising any lawful rights to seek non-arbitration, self-help remedies. Company and you agree that each party may seek provisional self-help remedies out of court without waiving the right to arbitrate. Notwithstanding any other provision of this Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then the arbitration provision under this Section, other than such invalid or unenforceable provisions, shall remain in full force and effect.
- Attorneys’ Fees. If we initiate legal action against you for collection of any amounts owed to us or to enforce our rights and your obligations under this Agreement, we are entitled to recover from you our reasonable costs and expenses including, but not limited to, reasonable attorneys’ fees incurred as a result.
- LIMITATION OF LIABILITY. THE COMPANY DOES NOT AUTHORIZE ANY PERSON TO CREATE FOR IT ANY OBLIGATION OR LIABILITY IN CONNECTION WITH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS, CONSULTANTS, SUBSIDIARIES, AGENTS AFFILIATES, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF INCOME, LOSS OF DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, COST OF SUBSTITUTE SERVICES, PERSONAL INJURY, PERSONAL OR REAL PROPERTY DAMAGE, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR NEGLIGENCE) AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR EVEN IF A REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CANCEL AND DISCONTINUE USING THE SERVICES. IN NO INSTANCE WILL THE PROTECTED PARTIES’ LIABILITY TO YOU EXCEED THE FEES PAID BY YOU IN THE THREE (3) MONTH PERIOD PRIOR TO THE CLAIM AT ISSUE, AND YOU AGREE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF THE COMPANY OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
- Notice. All notices must be in writing. Notice will be deemed given and effective: (a) upon receipt if delivered in person; (b) upon delivery if by an internationally recognized mail service (e.g., Federal Express), overnight courier, or certified or registered mail, postage pre-paid, return receipt requested; or (c) on the date transmitted if by email. All notices from the User to the Company will be sent to Company, at 1207 4th Street, Suite 400A, Santa Monica, CA 90401, Attn: Benjamin Toulotte, email: email@example.com. the User will be sent to the address(es) associated with the User's profile or specified in any order form or statement of work.
- Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
- Relationship. The parties are independent contractors. This Agreement does not create a franchise, joint venture, partnership, employment, agency, or fiduciary relationship between the parties in any way. The Company reserves the right to determine the method, manner and means by which the Services will be performed.
- Updates to Terms and Services. We reserve the right, in our sole discretion, modify, update, change, or amend this Agreement or the Services at any time. Any change or update will become effective from the moment we notify you of such changes, which we may do so via the Services, email, publication on Company’s website, or any other method we deem appropriate. Your continued use after any such modification or change is made constitutes your acceptance of such modification or change.
- Marketing and Publicity. You agree that Company may use Your name, logos, and/or other identifying information for any and all marketing and publicity purposes.
- Waivers, and Waiver of Provisions. Failure to exercise or delay in exercising any right or remedy by Company shall not constitute a waiver, and any waiver granted must be in writing and executed by the party against whom enforcement is sought. A waiver of specific provisions does not extend to other provisions or subsequent breaches.
- Assignment. You may not transfer or assign the Agreement or any of your interests, rights, or obligations under the Agreement without the prior written consent of Company. Company reserves the right to transfer or assign the Agreement or any rights or obligations under the Agreement at any time. If notice is required for you or the assignee to fulfill any obligations under the Agreement, Company will provide such notice within a reasonable time of their assignment. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
- Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all counterparts, when taken together, shall constitute the same agreement. Facsimile signatures and other electronic signatures shall be considered original signatures and may be relied upon for purposes of enforcing this Agreement.
- Conflicts and Order Forms. In the event of any conflict between this Agreement and an order form, the order form shall govern if it expressly states its intention to override specific terms of this Agreement. No text or information set forth on any other purchase order, preprinted form, or document shall modify the terms and conditions of this Agreement. This Agreement shall supersede and override any such document, and only the terms of this Agreement shall apply to your use of or access to the Services.
- Effectiveness and Acceptance. This Agreement shall become effective when: (a) this Agreement is executed by both Company and you, and Company receives counterparts bearing the signatures of all parties, or (b) you click on the "I Agree" or a similar checkbox/button on Company's website, indicating acceptance of this Agreement. By clicking "I Agree," you acknowledge having read and accepted the terms and conditions set forth in this Agreement.
- Survival. Your obligations under this Agreement that by their nature would continue beyond the termination of this Agreement, including but not limited to those sections relating to indemnification, confidentiality, limitation of liability, intellectual property, warranties, general provisions, use of Services, payment, export control, will survive any termination of this Agreement. Additionally, all representations, warranties, and covenants herein and in this Agreement will survive the execution and delivery of this Agreement and will continue in full force until all obligations under this Agreement have been satisfied in full and this Agreement is terminated as a result.
- Severability. In the event that any provision in this Agreement is deemed invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the other provisions herein shall not be affected or impaired in any way. Additionally, if any provision of this Agreement is prohibited or rendered unenforceable by any applicable law, such provision shall be ineffective only to the extent and duration of the prohibition or unenforceability, without invalidating the remaining provisions of this Agreement.
- Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
- Governing Law. The parties acknowledge and agree that this Agreement are made and performed in the state of Delaware. Subject to the Arbitration Provision, all proceedings arising out of or relating to this Agreement or its subject matter, including any tort claims, will be governed by and construed in accordance with the laws of Delaware, without regards to the jurisdiction’s conflicts of law rules.
- Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties and supersedes all other agreements between the parties relating to its subject matter.