Welcome and thank you for your interest in 40GRID pest control software and services, owned and operated by 40GRID, Inc. (“Provider”, “we”, “us” or “our”), a platform that provides advanced software technology, content, and support services for use by pest control companies (“Client”, “you” or “your”) and their customers.
Please read these Terms carefully, including with respect to the following points:
- BY ENTERING INTO THIS CONTRACT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS CONTRACT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
- YOU ARE RESPONSIBLE FOR YOUR AUTHORIZED USERS’ COMPLIANCE WITH THESE TERMS AND THEIR ACTS AND OMISSIONS ON AND WITH RESPECT TO OUR PLATFORM. WITHOUT LIMITING THE FOREGOING, CLIENT, AND NOT PROVIDER, IS RESPONSIBLE FOR ITS COMPANY INFORMATION AND USER CONTENT (DEFINED IN SECTION 1 BELOW) AVAILABLE THROUGH OUR PLATFORM, INCLUDING REVIEWING SUCH INFORMATION AFTER IT HAS BEEN PROCESSED BY OUR PLATFORM TO CONFIRM THAT IT IS ACCURATE, COMPLETE AND CURRENT.
- THE ARBITRATION AGREEMENT SET FORTH IN SECTION 15 BELOW REQUIRES YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, AND NOT BY A JURY TRIAL.
We may amend these Terms by posting the amended version via the Platform. You agree that the foregoing will constitute sufficient and effective notice. By continuing to use the Platform more than 30 days after we post an amended version, you confirm your acceptance of the Terms as amended. If you do not agree with any of the changes, you must immediately stop using the Platform, and your permission to use the Platform will immediately terminate.
- “Authorized Customer Users” means, collectively, (i) Client’s customers who are authorized or enabled by Client to register an account on the Platform, or otherwise access or use the Platform; and (ii) the individuals and/or entities whose access to or use of the Platform have been authorized or enabled by Client’s previously authorized or enabled Authorized Customer Users.
- “Authorized Registered Users” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to register an account on the Platform, or otherwise access and use the Platform, under the rights granted to Client pursuant to these Terms and (ii) for whom access to the Platform has been purchased hereunder.
- “Authorized Users” means Authorized Registered Users and Authorized Customer Users, collectively.
- “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Platform provided to Client either electronically or in hard copy form, as updated from time to time by Provider.
- “Order Date” means the date identified in an Order Form as the date on which said Order Form shall be effective.
- “Order Form” means an ordering document or online ordering form, including any addenda or supplements thereto, specifying among other things, the Order Date, the Term, the Subscription Term Start Date, and the applicable Fees (defined in section 4 below) and other charges as agreed to between the parties.
- “Provider IP” means the Platform, Documentation, Provider Confidential Information (defined in section 7 below), Aggregated Statistics, and all other intellectual property provided to Client in connection with the foregoing.
- “Subscription Term Start Date”means the date identified in an Order Form on which the first month of Subscription Fees shall become due and payable.
- “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Platform.
- “User Content” means all text, data, graphics, pictures, information, or other content posted to or uploaded onto the Platform by Client and/or its Authorized Users. User Content does not include Aggregated Statistics (defined in section 2 below).
- Access and Use.
- Provision of Access. Subject to and conditioned on your compliance with these Terms (including your payment of Fees), Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to remotely access and use the Platform, solely for your internal business purposes, during the Term (defined in section 13(a) below). Except as expressly stated herein, these Terms do not provide you with permission to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform or otherwise use or provide access to any portion of the Platform, without our express written consent.
- Documentation License Grant. Subject to and conditioned on your compliance with these Terms (including your payment of Fees), Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for your internal business purposes in connection with use of the Platform.
- Authorized Users.
- Authorized Registered Users. Using the functionality of the Platform and the administrative account tools provided therein, Client may register within the Platform named employees, consultants, contractors, and agents of Client as Authorized Registered Users. Client shall generate a unique login and password for each such Authorized Registered User. You shall not permit any person to use an Authorized Registered User’s login and password to log into or otherwise access or use the Platform, other than the Authorized Registered User associated with such login and password. Client may replace an existing Authorized Registered User with a new Authorized Registered User without increasing the aggregate number of Authorized Registered Users specified in the Order Form, provided that the replaced Authorized Registered User may not continue to access the Platform after being replaced.
- Authorized Customer Users. Using the functionality of the Platform and the administrative account tools provided therein, Client may authorize or enable an unlimited number of customers to register an account on the Platform, or otherwise access and use the Platform, in either case as Client’s Authorized Customer Users. Once such access to and use of the Platform is authorized or enabled by Client, those Authorized Customer Users may also use the functionality of the Platform and the tools provided therein to authorize or enable other individuals or entities to access and use the Platform on their behalf, and such other individuals and entities shall also be Client’s Authorized Customer Users. Client acknowledges and agrees that Client is fully responsible and liable for all acts and omissions of each Authorized Customer User, whether such Authorized Customer User’s access to or use of the Platform is authorized or enabled directly by Client, or is authorized or enabled by Client’s Authorized Customer Users, and any act or omission by any such Authorized Customer User that would constitute a breach of these Terms if taken by you will be deemed a breach of these Terms by you.
- Use Restrictions. You shall not, and you shall not permit any Authorized User to, access or use the Platform or Documentation for any purposes beyond the scope of the permissions or license granted in these Terms. You shall not at any time, directly or indirectly, and shall not permit any Authorized User to: (i) copy, modify, or create derivative works from the Platform or Documentation, in whole or in part; (ii) access, attempt to access, or otherwise interfere with the Platform (other than to access the functionality of Platform in accordance with these Terms); (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation except as expressly permitted under these Terms; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (v) remove any proprietary notices from the Platform or Documentation; (vi) use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
- Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, Provider may monitor your use and your Authorized Users’ use of the Platform and collect and compile data and information related to such use of the Platform (including User Content) to be used by Provider in an aggregated and anonymized manner (“Aggregated Statistics”) for its business purposes. As between Provider and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge and agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, including without limitation to compile statistical and performance information related to the provision and operation of the Platform and to derive and publish industry benchmarks and other analyses.
- Reservation of Rights. Provider reserves all rights not expressly granted in these Terms. Except for the limited rights and license expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
- Suspension. Notwithstanding anything to the contrary in these Terms, Provider reserves the right to temporarily suspend your access and/or your Authorized Users’ access to any portion or all of the Platform if: (i) we reasonably determine or suspect that (A) there is a threat or attack on any of the Provider IP; (B) your use or your Authorized Users’ use of the Provider IP disrupts or poses a security risk to Provider, the Provider IP, or to any other Provider client, vendor or subcontractor; (C) you or your Authorized Users are using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) our provision of access to the Platform to you or your Authorized Users is prohibited by applicable law; (ii) any vendor or subcontractor of Provider has suspended or terminated our access to or use of any third-party services or products required to enable your or your Authorized Users’ access to or use of the Platform; or (iii) in accordance with section 4(d)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). We will use commercially reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Platform following any Service Suspension. We will use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that you or your Authorized Users may incur as a result of a Service Suspension.
- Client Responsibilities.
- Account Use. You shall be solely responsible, at your sole cost and expense, for establishing, maintaining, and operating your connection, and your Authorized Users’ connection, to the Internet (the speed of which may have a significant impact on the responsiveness of the Platform), including all access lines, all Internet service provider connection charges, and any long-distance telephone or mobile device or data charges. You shall be solely responsible and liable for all uses of the Platform and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of your Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by you will be deemed a breach of these Terms by you. You shall use all reasonable efforts to make your Authorized Users aware of these Terms’ provisions, as applicable to such Authorized Users’ access to and use of the Platform and Documentation, and you shall cause all Authorized Users to comply with such provisions.
- Acceptable Use Policy. The Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Provider’s acceptable use policy (“AUP”) located in the footer, as may be amended from time to time, and which is incorporated herein by reference. You will comply with, and you will cause your Authorized Users to comply with these Terms, all applicable laws, rules, and regulations, and Provider’s AUP.
- User Content.
- You will ensure that your or your Authorized Users’ User Content, and any use of such User Content, will not violate (A) any applicable law, rule or regulation, (B) any third party’s intellectual property or privacy rights; or (C) these Terms or any policy or document referenced in or incorporated into these Terms. You are solely responsible for the accuracy, quality, integrity, legality and intellectual property ownership of and right to use User Content.
- You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the User Content and perform all acts with respect to the User Content as may be necessary for us to provide the Platform to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display User Content incorporated within the Aggregated Statistics.
- Provider shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of User Content. Without limiting the generality of the foregoing, you acknowledge and agree that we are not obligated to retain any User Content within the Platform for: (A) longer than 30 days after the termination of these Terms or the expiration of the Term, or (B) any period, if you have or your Authorized Users have materially breached these Terms and has failed to cure said breach within the period set forth in section 13(b)(iii).
- Passwords and Access Credentials. You are responsible for keeping your and your Authorized Users’ passwords and access credentials associated with Platform, confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any known or suspected unauthorized access to your or your Authorized Users’ passwords or access credentials.
- Third-Party Products. The Platform may permit access to Third-Party Products. Such Third-Party Products are subject to their own terms and conditions. If you do not agree to abide by the applicable terms and conditions for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
- Client Compliance with Laws and Regulation. It is Client’s sole responsibility to obtain and maintain any and all required permits, licenses, certifications or approvals from any agency or governmental official in connection with the supply, provision, performance, or operation of the services provided by Client to its customers using the Platform. Nothing contained herein shall be construed as imposing responsibility or liability upon Provider for obtaining any such permits, licenses, certifications or approvals. Client represents and warrants that it shall comply with, and it shall cause its Authorized Registered Users to comply with, all applicable laws and regulations in connection with the supply, provision, performance, or operation of the services Client provides to its customers using the Platform. Provider does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Platform is Client’s sole responsibility.
- Client Fees and Payment. Your access to and use of the Platform, and your Authorized Users’ access to and use of the Platform, is contingent upon your payment of the fee for installation of the Platform (“Installation Fee”) and the subscription fees for the Platform (“Subscription Fees”, and collectively with the Installation Fee, the “Fees”), each as set forth in the relevant Order Form. You shall make all payments due to Provider hereunder in US dollars on or before the due date. Except as otherwise expressly set forth in these Terms, Fees are non-cancelable, and all amounts paid are non-refundable.
- On or prior to the Order Date of the applicable Order Form, Client shall pay Provider the Installation Fee specified in such Order Form. Starting on the Subscription Term Start Date indicated on the applicable Order Form and continuing throughout the applicable Term, Provider will invoice Client on a monthly basis for the Subscription Fees specified on the Order Form, as such Order Form may be amended from time to time by agreement of the parties. You agree to pay Provider such Subscription Fees within thirty (30) days from each invoice date, without offset or deduction, for the duration of the Term.
- If Client desires to add additional Authorized Registered Users to its subscription during the Term, then Client and Provider may agree to amend the applicable Order Form for Client to purchase access to the Platform for additional Authorized Registered Users. In such a case, Client must pay Provider its then current per Authorized Registered User Subscription Fee (pro-rated for any partial month based on when the additional Authorized Users are able to access the Platform) for each additional Authorized Registered User.
- Provider may from time to time during the Term audit the number of Client’s Authorized Registered Users. If we discover that the number of Authorized Registered Users accessing or using the Platform exceeds the number of Authorized Registered Users that have permission to access and use the Platform, then (i) we will invoice Client and Client shall pay Provider the applicable Subscription Fees for such additional Authorized Registered Users (including any retroactive Subscription Fees, which may be pro-rated for any partial month based on when the additional Authorized Registered Users are able to access the Platform), and (ii) the parties will amend the Order Form, as set forth in section 4(b) above, to reflect the accurate number of Authorized Registered Users.
- If Client 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) Client shall reimburse Provider 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, in accordance with section 2(g), Client’s and/or its Authorized Users’ access to any portion or all of the Platform until such amounts are paid in full, and Provider will continue to charge Client for Fees during any period of Service Suspension due to Client’s delinquency.
- All Fees and other amounts payable by Client under these Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Provider’s income.
- Client agrees to provide Provider with accurate billing and contact information, including Client’s legal company name, street address, email address, and names, mobile telephone numbers, and email addresses of all authorized billing contacts, as well as a preferred billing method. Client agrees to update said billing and contact information within ten (10) business days of any change thereto.
- To the extent Client maintains with Provider a credit card and authorizes us to charge that credit card for Fees (“Client Credit Card”), Client agree that such Client Credit Card shall be active and shall have a credit limit sufficient to enable us to successfully charge all such Fees. To the extent Client maintains with Provider a bank account and authorizes us to debit that bank account for Fees (“Client Bank Account”), Client agree that such Client Bank Account shall be active and shall contain funds sufficient to enable us to successfully debit such Fees. Client agrees to update said Client Credit Card or Client Bank Account information within ten (10) business days of any change thereto.
- To the extent that you use the Platform and the Payment Processor to process payments made by your customers, you maintain the direct relationship with your customers and are responsible for: (i) acquiring appropriate consent to submit charges through the Payment Processor on their behalf; (ii) providing confirmation or receipts to customers for each charge; (iii) verifying customers’ identities; and (iv) determining a customer’s eligibility and authority to complete the transactions. You expressly understand and agree that Provider shall not be liable for any customer payments that are processed by the Payment Processor or for any issues regarding financial transactions between you and any other party, including the Payment Processor.
- Security. We will employ commercially reasonable security measures to protect Client Confidential Information.
- Technical Support. Provider will provide reasonable technical support via email during its normal business hours. Technical support questions and requests should be addressed to firstname.lastname@example.org.
- Confidentiality Obligations.
- Confidential Information. From time to time during the Term, each of Client and Provider (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”), in connection with these Terms, whether orally or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products, and/or services (collectively, “Confidential Information”). Confidential Information includes without limitation information relating to the Disclosing Party’s products, technology, trade secrets, data, know-how or knowledge, any and all financial, technical, commercial information, any cost or pricing information, actual or potential customers, employees, contractual terms and conditions, marketing or distribution data, or business methods or plans. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees, agents, or subcontractors who (i) have a need to know the Confidential Information in order for the Receiving Party to exercise its rights or perform its obligations hereunder, and (ii) who are required to protect the Confidential Information in a manner no less stringent than required under these Terms. The Receiving Party will be responsible for any breach of this section 7 by its employees, representatives, and agents. Without limiting the generality of the foregoing, non-public information regarding the Platform (including but not limited to its performance, operation, and data formats) or the Documentation is Provider’s Confidential Information. The Receiving Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the Receiving Party and will expire five (5) years thereafter; provided, however, with respect to any Confidential Information whose disclosure is prohibited by law, such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to such law.
- User Content. Provider acknowledges and agrees that User Content is Client’s Confidential Information (subject to section 7(c) below) and is therefore subject to the restrictions on disclosure and use set forth in section 7(a) above. Notwithstanding the foregoing, Provider may use such User Content or other Client Confidential Information to (i) provide the Platform to Client and its Authorized Users as contemplated herein, (ii) monitor Client’s and its Authorized Users’ access to and use of the Platform and derive Aggregated Statistics therefrom, and (iii) enforce these Terms. For avoidance of doubt, User Content does not include Aggregated Statistics.
- Exclusions. Confidential Information does not include information that, at the time of disclosure is: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
- Required Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the Disclosing Party and made a reasonable effort to obtain a protective order; or (ii) to establish its rights under these Terms, including to make required court filings.
- Equitable Relief. Because unauthorized access, use, disclosure or transfer of the Confidential Information or other intellectual property of either party in violation of this section 7 will diminish substantially the value of such Confidential Information or other intellectual property and irreparably harm the owner of such Confidential Information or intellectual property, if either party breaches the provisions of this section 7, the other party shall be entitled to seek equitable relief, including a restraining order, preliminary and permanent injunctive relief, specific performance and any other relief that may be available from any court, without providing a bond or other security, in addition to any other remedy to which such party may be entitled at law or in equity.
- Intellectual Property Ownership; Feedback.
- Provider IP. Provider and its licensors are the sole owners of the Provider IP and all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto. Nothing in these Terms gives you or your Authorized Users a right to use Provider’s name or any of Provider’s trademarks, logos, domain names, other distinctive brand features and other proprietary rights. All right, title and interest in and to Provider IP (excluding User Content) are and will remain the exclusive property of Provider and its licensors.
- Feedback. If Client or any of Client’s employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Platform or Documentation, including without limitation new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
- Limited Warranty and Warranty Disclaimer.
- Provider Warranty. Provider warrants that the Platform shall perform substantially in accordance with the Documentation. Provider’s sole obligation, and your sole remedy, with respect to any breach of this limited warranty of performance shall be for Provider to correct such nonconformance or provide reasonable alternative functionality at Provider’s sole cost and expense. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
- Client Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to User Content and that both the User Content and your use of the Platform are in compliance with the AUP and these Terms.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE PLATFORM IS PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Indemnification. You agree to indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) arising from or relating to any third-party claim, suit, action, or proceeding (“Third-Party Claim”) due to or arising out of: (a) your access to or use of the Platform; (b) your breach of these Terms; (c) your violation of any law or the rights of a third party; (d) any dispute or issue between you and any third party (including Authorized Users); (e) any User Content you upload to, or otherwise make available through, the Platform; (f) your negligence and willful misconduct; and (g) any other party’s access to and/or use of the Platform using your Authorized Users’ account or login credentials. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in that case, you agree to cooperate with our defense of that Third-Party Claim.
- Limitations of Liability.
- IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Term and Termination.
- Term. These Terms are effective beginning on the Order Date indicated in the applicable Order Form and continue through the initial subscription term set forth in such Order Form (the “Initial Subscription Term”). Thereafter, these Terms shall automatically renew for successive renewal terms as set forth in the applicable Order Form (each a “Renewal Subscription Term,” and, together with the Initial Subscription Term, the “Term”), until the Terms are terminated pursuant to section 13(b) below.
- Termination. In addition to any other express termination right set forth in these Terms:
- Provider may terminate these Terms or any Order Form for any reason upon thirty (30) days’ advance written notice to Client.
- Unless otherwise provided in an applicable Order Form, Client may terminate these Terms and any Order Form upon advance written notice to Provider at least thirty (30) days prior to the expiration of the then current Initial Subscription Term or Renewal Subscription Term.
- either party may terminate these Terms and all active Order Forms, effective upon written notice to the other party, if the other party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
- either party may terminate these Terms, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Termination.
- Upon expiration or termination of these Terms, Client shall immediately discontinue use of the Provider IP, and, upon Provider’s direction, Client shall promptly return or destroy all Confidential Information of Provider in Client’s possession or control in accordance with Provider’s instructions and shall provide Provider with written confirmation of the actions taken (including date, place and method of destruction) within five (5) business days of receipt of Provider’s instructions.
- No expiration or termination of these Terms or any Order Form will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund. Furthermore, if Provider terminates these Terms or any Order Form pursuant to section 13(b)(iii) or (iv) above, or if Client terminates these Terms or any Order Form for any reason other than section 13(b)(ii), (iii), or (iv) above, then Client shall promptly pay Provider, in full, all unpaid amounts owed to Provider for the remainder of the applicable Term. For the avoidance of doubt, termination of these Terms will result in the termination of all Order Forms entered into hereunder.
- Survival. Any right, obligation, or required performance of the parties in these Terms which, by its express terms or nature and context is intended to survive termination or expiration of these Terms, will survive any such termination or expiration.
- Export Regulation. The Platform utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Platform or the software or technology included in the Platform to, or make the Platform or the software or technology included in the Platform accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform or any software or technology included in the Platform available outside the US.
- DISPUTE RESOLUTION; ARBITRATION AGREEMENT; CLASS ACTION AND JURY TRIAL WAIVER.
BY AGREEING TO THE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST PROVIDERON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS SECTION. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION AGAINST PROVIDER, AND WILL ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED ACTION BROUGHT AGAINST PROVIDERBY SOMEONE ELSE.
Most disputes that arise out of the use of the Platform can be resolved quickly, informally, and with mutual satisfaction by reaching out to us at email@example.com.
If any dispute remains unresolved after that process, however, you and Provider agree to have all disputes resolved by arbitration, which shall be final and binding on both parties, except disputes (i) that may be brought in an individual action in small claims court, or (ii) that relate to the ownership or enforcement of intellectual property rights. In addition, you and Providereach retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. In any such case, your waiver of the right to a jury trial and the class action waiver set forth in this Agreement shall continue to apply.
“Dispute” includes any dispute, action, or other controversy, whether based on past, present, or future events, between you and Provider concerning the Platform or Terms, whether in contract, tort, warranty, statute, regulation, or other legal or equitable basis. You and Provider empower the Arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of the Terms are void or voidable.
CLASS ACTION AND JURY TRIAL WAIVERS. BY ENTERING INTO THE TERMS, YOU AND PROVIDEREACH EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY. ADDITIONALLY, YOU AND PROVIDERAGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY AND THAT THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED IN ANY PURPORTED CLASS, JOINT, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR ON BEHALF OF THE GENERAL PUBLIC, OTHER USERS, OR ANY OTHER PERSONS. As such, you and Provideracknowledge and agree that each waives any right to participation as a plaintiff or a class member in a class action litigation or arbitration, or in any other collective or consolidated action, with respect to these terms. Neither you nor Providermay be a representative of any other potential claimants or class of potential claimants in any such dispute, nor may two or more participants’ disputes be consolidated or otherwise determined in one proceeding. This will also preclude you and Providerfrom participating in or recovering relief under any current or future class, joint, collective, representative, or consolidated action brought by someone else.
- Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (“AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Delaware.
- Initiating Arbitration. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879.) The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Delaware, and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the proposed list of arbitrators by the AAA, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
- Location and Procedures. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Providersubmit to the Arbitrator, unless you request a hearing and the Arbitrator determines that a hearing is necessary. If the claim exceeds $10,000, arbitration may be conducted in person, through the submission of documents, by phone, or online, and your right to a hearing will be determined by the AAA Rules. Proceedings that cannot be conducted through the submission of documents, by phone, or online, will take place in Suffolk County, Massachusetts or in another jurisdiction to which you and Provider agree in writing; provided, however, that if circumstances prevent you from traveling to Massachusetts, the AAA may hold an in-person hearing in the state where you reside. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
- Arbitrator’s Decision. The Arbitrator will render a written award within the time frame specified in the AAA Rules and shall provide a written decision with a statement of reasons if requested by either party. The Arbitrator may award declaratory or injunctive relief, but only in favor of the individual claimant, but only to the extent necessary to provide relief warranted by the claimant’s individual claim. The Arbitrator shall not have authority to entertain any claim on behalf of a person who is not a named party, nor shall the Arbitrator have authority to make any award for the benefit of, or against, any person who is not a named party. The Arbitrator’s decision shall be final and binding on all parties. The Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.
You and Provideragree to submit to the exclusive jurisdiction of the state courts located in SuffolkCounty, Massachusetts or the federal courts located in Suffolk County, Massachusetts in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
- Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Provider will reimburse those fees for claims totaling less than $10,000 unless the Arbitrator determines the claims are frivolous or brought for an improper purpose (based on the standards set forth in Federal Rule of Civil Procedure 11(b)). Likewise, Provider will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous or brought for an improper purpose (based on the standards set forth in Federal Rule of Civil Procedure 11(b)). The right to recover attorneys’ fees and expenses set forth in the Terms supplements any right to attorneys’ fees and expenses you may have under applicable law. You may not, however, recover duplicative awards of attorneys’ fees or costs.
- Severability. If any part of this Arbitration Agreement, other than the class action waiver, is deemed or found to be unenforceable for any reason, the remainder shall be enforceable. The class action waiver is non-severable and if it is deemed or found to be unenforceable for any reason, the whole Arbitration Agreement shall be null and void.
- Disputes Between Users. You are solely responsible for your interactions with your Authorized Users. We reserve the right, but have no obligation, to become involved in any way with disputes between your Authorized Users.
- Governing Law and Venue. You and we agree that these Terms and any dispute of any nature that might arise between you and us will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict or choice of laws principles. You and we agree that any action at law or in equity that is not subject to the arbitration clause in Section 15 above shall be filed, and that venue properly lies, only in the federal or state courts located in Suffolk County in the Commonwealth of Massachusetts, and you and we expressly consent and submit to the exclusive and personal jurisdiction of such courts for the purposes of litigating such action.
- Client Trademarks and Logos. These Terms do not grant either party the right to use any trademark, trade name or logo of the other party in any advertising or promotional material, except that Provider may identify Client as a customer of Provider in promotional materials and published lists of Provider’s customers.
- All notices given by you or required from you under these Terms must be in writing and addressed to us as set forth in the Contact Information section below. All notices must be delivered either in person, by email, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Any notices that you provide without compliance with this subsection will have no legal effect.
- Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Platform. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
- Severability. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
- Waiver. Any failure to act by us with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches.
- Assignment. These Terms are personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign these Terms and to delegate any of our obligations hereunder.
- Contact Information. If you have questions, complaints, or claims with respect to the Terms, please direct such communications to: firstname.lastname@example.org