TERMS OF SERVICE
Last Updated: October 21, 2018
The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Service”), govern access to and use of the software services provided by Neome, a California corporation (“We,” “Us” or “Our”). Please read these Terms of Service carefully before you (“You” or “Your”) use Our software services. By using Our software services, You accept and agree to be bound and abide by these Terms of Service. If You do not agree to these Terms of Service, You must not access or use Our software services.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use Our Hosted Services.
“Action” means any claim, suit, action or proceeding.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Authorized User” means each individual who is authorized by You to use Our Services.
“Fees” means the fees for the corresponding level of Service Allocation set forth in the Fees and Service Allocation Schedule.
“Fees and Service Allocation Schedule” means the Fees and Service Allocation at www.neome.co, which is incorporated into these Terms and Conditions by this reference.
“Force Majeure Event” means any circumstances beyond Our reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposition of an embargo, export or import restriction, quota, or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent You or any Authorized User from accessing or using Our Services or Our Systems as intended by these Terms of Service. Harmful Code does not include any Provider Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means 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 and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Our” has the meaning set forth in the first paragraph of these Terms and Conditions.
“Our Documentation” means any manuals, instructions or other documents or materials that We provide or makes available to You in any form or medium and which describe the functionality, components, features or requirements of Our Services or Our Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Our Hosted Services” means remote electronic access to and use of Our Services by You or any Authorized User.
“Our Indemnitees” means Us and Our officers, directors, employees, agents, successors and assigns.
“Our Materials” means Our Service Software, Our Documentation and Our Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Us or any of Our Subcontractor in connection with Our Services or otherwise comprise or relate to Our Services or Our Systems. For the avoidance of doubt, Our Materials do not include Your Data and any information, data or other content derived from Our monitoring of Your access to or use of Our Services.
“Our Personnel” means all individuals involved in the performance of Our Services as Our employees, agents or independent contractors or as Our Subcontractors.
“Our Service Software” means the software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that We provide remote access to and use of as part of Our Services.
“Our Services” means the software services provided by Us for use by You and Your Authorized Users, which We may modify from time to time in Our sole discretion.
“Our Subcontractor” means any third party that We may engage from time to time in Our discretion to perform part of Our Services.
“Our Support Services” mean Our standard customer support services, which We may modify from time to time in Our sole discretion.
“Our Systems” means the information technology infrastructure used by Us or on Our behalf in performing Our Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Us or through the use of our Subcontractors.
“Parties” means You and Us and “Party” means You or Us.
“Permitted Use” means the use of Our Services by You and Your Authorized Users for any and all lawful purposes.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), and “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
“Privacy and Data Security Policy” means Our privacy and data security policy at which is incorporated into these Terms and Conditions by this reference.
“Process” means to take any action or perform any operation or set of operations that Our Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Prohibited Data” means (a) Personal Information the collection, use, Processing or disclosure of which is prohibited by applicable Law; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data.
“Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Us or Our designee to disable Your or any Authorized User’s access to or use of Our Services automatically with the passage of time or under the positive control of Us or Our designee.
“Scheduled Downtime” means all scheduled outages of Our Hosted Services.
“Service Allocation” means the levels of Our Hosted Service usage and data storage corresponding to the Fees set forth in the Fees and Service Allocation Schedule.
“Term” means the period of time beginning on the date that You accept and agree to be bound and abide by these Terms of Service and extending for so long as You have authorized access to and use of Our Services obtained by paying Fees to Us.
“Term of Service” has the meaning set forth in the first paragraph hereof.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components, that are not proprietary to Us.
“Us” has the meaning set forth in the first paragraph of these Terms and Conditions.
“We” has the meaning set forth in the first paragraph of these Terms and Conditions.
“You” and “Your” have the meaning set forth in the first paragraph of these Terms and Conditions.
“Your Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly, from You or an Authorized User by or through Our Services or that incorporates or is derived from the Processing of such information, data or content by or through Our Services. For the avoidance of doubt, Your Data includes information reflecting the access or use of Our Services by or on behalf of You or any Authorized User.
“Your Failure” means Your delay in performing, or failure to perform, any of Your obligations under these Terms of Service.
“Your Systems” means Your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by You or through the use of third-party services.
2. Our Services.
2.1 Our Services. Subject to and conditioned on Your and Your Authorized Users’ compliance with these Terms of Service, We shall use commercially reasonable efforts to make Our Services available, during the Term and in substantial conformity with Our Documentation, for access and use by You and Your Authorized Users, including to host, manage, operate and maintain Our Service Software and Our Hosted Services, 24 hours per day, seven days per week every day of the year, except for:
(a) Scheduled Downtime;
(b) downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Our reasonable control, including Your or any Authorized User’s use of Third Party Materials, misuse of Our Hosted Services or use of Our Services other than in compliance with these Terms of Service and Our Documentation; and
(d) any suspension or termination of Your or any Authorized User’s access to or use of Our Hosted Services as permitted by these Terms of Service.
2.2 System Control. Except as otherwise expressly provided in these Terms of Service, as between the Parties:
(a) We have and will retain sole control over the operation, provision, maintenance and management of Our Services and Our Materials, including (i) Our Systems; (ii) the location(s) where any of Our Services are performed; (iii) the selection, deployment, modification and replacement of Our Service Software; and (iv) the performance of Our Support Services and the maintenance of and upgrades, corrections and repairs to Our Services; and
(b) You have and will retain sole control over the operation, maintenance and management of, and all access to and use of, Your Systems, and sole responsibility for all access to and use of Our Services and Our Materials by any Person by or through the Your Systems or any other means controlled by You or any Authorized User, including any (i) information, instructions or materials provided by any of them to Our Services or Us; (ii) results obtained from any use of Our Services or Our Materials; and (iii) conclusions, decisions or actions based on such use.
2.3 Modifications. We reserve the right, in Our sole discretion, to make any modifications to Our Services and Our Materials that We deem necessary or useful to (a) maintain or enhance (i) the quality or delivery of Our Services to Our customers, (ii) the competitive strength of or market for Our Services or (iii) the cost efficiency or performance of Our Services; or (b) comply with applicable Law.
2.4 Suspension or Termination of Our Services. We may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Your, any Authorized User’s or any other Person’s access to or use of all or any part of Our Services or Our Materials, without incurring any resulting obligation or liability, if (a) We receive a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Us to do so; or (b) We believe, in good faith and at Our sole discretion, that (i) You or any Authorized User has failed to comply with any material term of these Terms of Service, or accessed or used Our Services beyond the scope of the rights granted or for a purpose not authorized under these Terms of Service or in any manner that does not comply with any material instruction or requirement of Our Documentation; (ii) You or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of Our Services; or (iii) the Term expires or is terminated. This Section 2.4 does not limit any of Our other rights or remedies, whether at law, in equity or under these Terms of Service.
3. Authorization and Restrictions.
3.1 Authorization. Subject to and conditioned on Your payment of the Fees and compliance and performance in accordance with all other terms and conditions of these Terms of Service, We hereby authorize You and Your Authorized Users to access and use, solely during the Term and solely for the Permitted Use, Our Services and Our Materials in accordance with these Terms of Service and Our Documentation. This authorization is non-exclusive and, except as expressly set forth in Section 13.8, non-transferable.
3.2 Authorization Limitations and Restrictions. You shall not, and shall not permit any other Person to, access or use Our Services, Our Systems or Our Materials except as expressly permitted by these Terms of Service. For purposes of clarity and without limiting the generality of the foregoing, You shall not, except as these Terms of Service expressly permit:
(a) copy, modify or create derivative works or improvements of Our Services or Our Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any of Our Services, Our Systems or Our Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of Our Services or Our Materials, in whole or in part;
(d) bypass or breach any security device or protection used by Our Services, Our Systems or Our Materials or access or use Our Services, Our Systems or Our Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through Our Services, Our Systems or Our Materials any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner Our Services, Our Systems or Our Materials, or the provision of Our Services, Our Systems or Our Materials to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices, from any of Our Services, Our Systems or Our Materials, including any copy thereof;
(h) access or use Our Services, Our Systems or Our Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any of Our other customers), or that violates any applicable Law;
(i) access or use Our Services, Our Systems or Our Materials for purposes of competitive analysis of Our Services or Our Materials, the development, provision or use of a competing software service or product or any other purpose that is to Our detriment or commercial disadvantage;
(j) access or use Our Services, Our Systems or Our Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of Our Services or Our Systems could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use Our Services, Our Systems or Our Materials beyond the scope of the authorization granted under Section 3.1.
3.3 Service Use and Data Storage. You acknowledge and agree that (a) We have no obligation to permit You to exceed Your Service Allocation corresponding to the Fees paid by You for the remainder of the Term, and (b) You may increase Your Service Allocation and Your corresponding Fees obligation in accordance with the Fees and Service Allocation Schedule.
4. Data Backup.
Our Systems are programmed to perform routine data backups as set out in Our backup policy in effect from time to time. Our backups do not replace the need for You to maintain regular data backups or redundant data archives. WE HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF YOUR DATA.
5.1 Security Obligations. We will employ security measures in accordance with Our Privacy and Data Security Policy.
6. Fees and Payment Terms.
6.1 Fees and Payment Terms. You shall pay Us Fees in accordance with the Fees and Service Allocation Schedule.
6.2 Late Payment. If You fail to make any payment when due then, we may suspend performance of Our Services until all past due amounts have been paid without incurring any obligation or liability to You or any other Person by reason of such suspension.
6.3 No Deductions or Setoffs. All amounts payable to Us under these Terms of Service shall be paid by You to Us in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
7. Intellectual Property Rights.
7.1 Reservation of Rights. Nothing in these Terms of Service grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to Our Services, Our Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to Our Services, Our Materials and the Third Party Materials are and will remain with Us and the respective rights holders in the Third Party Materials.
7.2 Consent to Use Your Data. You hereby irrevocably grants to Us and Our Personnel all such rights and permissions in or relating to Your Data as are necessary or useful (a) to perform Our Services or (b) to enforce these Terms of Service and exercise Our rights hereunder.
8.1 Termination. In addition to any other express termination right set forth elsewhere in these Terms of Service:
(a) We may terminate these Terms of Service, effective on written notice to You, if You (i) fail to pay any amount when due hereunder, and such failure continues more than five days after the due date; or (ii) breach any of Your obligations under Section 3.2 (Use Limitations and Restrictions);
(b) either Party may terminate these Terms of Service, effective on written notice to the other Party, if the other Party materially breaches these Terms of Service and such breach (i) is incapable of cure or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; and
(c) either Party may terminate these Terms of Service, effective immediately upon written notice to the other Party, if the other Party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.
8.2 Effect of Expiration or Termination. Upon any expiration or termination of these Terms of Service, except as expressly otherwise provided in these Terms of Service:
(a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
(b) You shall immediately cease all use of any of Our Services, Our Systems and Our Materials and (i) promptly return to Us, or at Our written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any of Our Services or Our Materials; and (ii) permanently erase all Our Materials from all systems that You directly or indirectly control;
(c) notwithstanding anything to the contrary in these Terms of Service, with respect to information and materials then in its possession or control (i) We may retain Your Data and You may retain Our Materials solely to the extent and for so long as required by applicable Law; (ii) We may also retain Your Data in Our backups, archives and disaster recovery systems until such Your Data is deleted in the ordinary course; and (iii) all information and materials described in this Section 8.2(d) will remain subject to all security and other applicable requirements of these Terms of Service;
(d) We may disable all of Your and Your Authorized Users access to Our Hosted Services and Our Materials;
(e) if You terminate these Terms of Service pursuant to Section 8.1(b), You will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and We will refund to You Fees paid in advance for Our Services that We have not performed as of the effective date of termination;
(f) if We terminate these Terms of Service pursuant to Section 8.1(a) or Section 8.1(b), all Fees that would have become payable had the these Terms of Service remained in effect until expiration of the Term will become immediately due and payable, and You shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Our invoice therefor; and
9. Representations and Warranties.
9.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under these Terms of Service;
(c) the acceptance and agreement to be bound and abide by these Terms of Service has been duly authorized by all necessary corporate or organizational action of such Party; and
(d) after You have accepted and agreed to be bound and abide by these Terms of Service, these Terms of Service will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.2 Our Additional Representations, Warranties and Covenants. We represent, warrant and covenant to You that We will perform Our Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet Our obligations under these Terms of Service.
9.3 Your Additional Representations, Warranties and Covenants. You represent, warrant and covenant to Us that You own or otherwise have and will have the necessary rights and consents in and relating to the Your Data so that, as received by Us and Processed in accordance with these Terms of Service, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights or any privacy or other rights of any third party or violate any applicable Law.
9.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1 AND SECTION 9.2, ALL OF OUR SERVICES AND ALL OF OUR MATERIALS ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND WE SPECIFICALLY DISCLAIM 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. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY OF ANY KIND THAT OUR SERVICES OR OUR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN OUR DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE OR FREE OF HARMFUL CODE OR ERRORS. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
10.1 Your Indemnification. You shall indemnify, defend and hold harmless Us and Our Indemnitees from and against any and all Losses incurred by Us or Our Indemnitees in connection with any Action by a third party (other than an Affiliate of Us or one of Our Indemnitees) to the extent that such Losses arise out of or relate to any:
(a) Your Data, including any Processing of Your Data;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of You or any Authorized User, including Our compliance with any specifications or directions provided by or on behalf of You or any Authorized User to the extent prepared without any contribution by Us;
(c) allegation of facts that, if true, would constitute Your breach of any of Your representations, warranties, covenants or obligations under these Terms of Service; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by You, any Authorized User, or any third party on behalf of You or any Authorized User in connection with these Terms of Service.
10.2 Indemnification Procedure. We shall promptly notify You in writing of any Action for which We believe We are entitled to be indemnified pursuant to Section 10.1. You shall immediately take control of the defense and investigation of such Action and defend and handle the same at Your sole cost and expense. We shall cooperate with You at Your sole cost and expense. Our failure to perform any obligations under this Section 10.2 will not relieve You of Your obligations under this Section 10 except to the extent that You can demonstrate that You has been prejudiced as a result of such failure. We may participate in and observe the proceedings at Our own cost and expense with counsel of Our own choosing.
10.3 Mitigation. If any of Our Services or Our Materials are, or in Our opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Your or any Authorized User’s use of Our Services or Our Materials is enjoined or threatened to be enjoined, We may, at Our option and sole cost and expense:
(a) obtain the right for You to continue to use Our Services and Our Materials materially as contemplated by these Terms of Service;
(b) modify or replace Our Services and Our Materials, in whole or in part, to seek to make Our Services and Our Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Our Services and Our Materials, as applicable, under these Terms of Service; or
(c) by written notice to You, terminate these Terms of Service with respect to all or part of Our Services and Our Materials and require You to immediately cease any use of Our Services and Our Materials or any specified part or feature thereof. Subject to Your compliance with Your post-termination obligations set forth in Section 8.2, You will be entitled to a refund of Fees paid in advance for Our Services that We have not performed as of the effective date of termination.
11. Limitations of Liability.
11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL WE OR ANY OF OUR LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED IN THE AGGREGATE THE TOTAL FEES PAID BY YOU TO US UNDER THESE TERMS OF SERVICE IN THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12. Force Majeure.
12.1 No Breach or Default. In no event will We be liable or responsible to You, or be deemed to have defaulted under or breached these Terms of Service, for any failure or delay in fulfilling or performing any term of these Terms of Service when and to the extent such failure or delay is caused by a Force Majeure Event. Either Party may terminate these Terms of Service if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
12.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, We shall give prompt written notice to You stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
13.1 Further Assurances. Upon a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to these Terms of Service.
13.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms of Service shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
13.3 Public Announcements. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to these Terms of Service or otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that We may, without Your consent, include Your name and/or other indicia in lists of Our current or former customers in Our promotional and marketing materials.
13.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms of Service have binding legal effect only if in writing and sent, with confirmation of transmission, to a Party at its email address. You provided Us with Your email address when You accepted and agreed to be bound and abide by these Terms of Service. Our email address is email@example.com. Either Party may change its email address upon notice to the other Party in accordance with this Section 13.4. Notices sent in accordance with this Section 13.4 will be deemed effectively given (i) when sent if sent during the other Party’s normal business hours or (ii) on the next business day if sent after the other Party’s normal business hours.
13.5 Interpretation. For purposes of these Terms of Service, (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms of Service as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms of Service (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, these Terms of Service; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend these Terms of Service to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of these Terms of Service to the same extent as if they were set forth verbatim herein.
13.6 Headings. The headings in these Terms of Service are for reference only and do not affect the interpretation of these Terms of Service.
13.7 Entire Agreement. These Terms of Service, together with any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of these Terms of Service and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms of Service, the related exhibits, schedules, attachments and appendices and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, these Terms of Service, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to these Terms of Service; and (c) third, any other documents incorporated herein by reference.
13.8 Assignment. You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance, under these Terms of Service, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Our prior written consent, which consent We shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving You (regardless of whether You are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under these Terms of Service for which Our prior written consent is required. No delegation or other transfer will relieve You of any of Your obligations or performance under these Terms of Service. Any purported assignment, delegation or transfer in violation of this Section 13.8 is void. These Terms of Service is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
13.9 No Third-party Beneficiaries. These Terms of Service is for the sole benefit of the Parties hereto and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms of Service.
13.10 Amendment; Waiver. We may modify these Terms of Service from time to time. If We believe in good faith that a modification in these Terms of Service materially reduces your rights or increases your obligations or performance, We will give You at least seven days notice before the change take effect, during which period of time You may reject the change by terminating these Terms of Service. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms of Service, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms of Service shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13.11 Severability. If any provision of these Terms of Service is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the term or other provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
13.12 Governing Law; Submission to Jurisdiction. These Terms of Service is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to these Terms of Service or the rights granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the County of Santa Clara, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
13.13 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms of Service or the transactions contemplated hereby.
13.14 Equitable Relief. You acknowledge and agree that a breach or threatened breach by You of any of Your obligations under Section 3.2 or Section 4.3 would cause Us irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, We will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.