Terms of Service
Effective Date: November 2, 2016
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
1. Use of the Services
The Services, and the information and content available on or through the Services are protected by copyright laws throughout the world.
1.1 Software Download
You understand and acknowledge that in order to access and use the Platform, you must first download Software from our Website that allows you to connect to our Platform. We hereby grant you a non-exclusive, non-transferable, term-based, revocable right and license to download and operate the Software solely to the extent necessary to access and use the Services. The Software is licensed, not sold. You may not (and may not permit anyone else to) copy, modify, create derivative works of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Company, in writing. You may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software or otherwise transfer any part of your rights to use the Software.
1.2 Software Updates
The Software which you use may automatically download and install updates from Company from time to time. You may also choose to manually download and install updates from the Company through our Services. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. You agree to receive such updates (and permit Company to deliver these to you) as part of your use of the Services. You acknowledge and agree that you are solely responsible for ensuring that any updates to Software are installed on the appropriate devices of other users at your company/organization.
1.3 Domain Name Assignment
Through your use of the Services, you will be assigned a unique domain name associated specifically with you. Company expressly reserves the right to change any assigned domain name for any reason, including but not limited to false representation by you of your association with a given company and/or organization. Company shall not be liable for any loss or damage resulting from the domain name change. Further, Company may immediately restrict your access to the Service and delete your Account (as defined below) in the event that you falsely associate your domain name with a company and/or organization to which you are not affiliated.
1.4 Catalog and Software Selection
When you register your Account and sign up for the Services, Company will provide you with access to a global catalog, which shows you all of the software selections, programs, operating system settings, and products offered through the Services (the “Catalog”). The Catalog offers three categories that you may elect: (a) software applications; (b) operation system settings and (c) operating systems (e.g., in the event you are trying to upgrade a computer to a new version of macOS). Through the Catalog, you select certain applications and settings access through the Software that you want to download and designate which devices such specific elements of the Software will be installed and run on.. You acknowledge and agree that all installation of the Software selected through the Catalog shall be installed remotely by Company and you grant Company permission to access your devices and/or computers in order to successfully complete the remote installation of the Software. Further, you acknowledge and agree that you are solely responsible for licensing any third party software or elements that you access through the Services, even in the event that Company offers to install them for you. You are solely responsible for purchasing any licenses necessary to run the Software and/or access the Platform, in addition to inputting all necessary information requested. Company’s installation of any third party applications, software or other elements pursuant to your use of the Services does not by itself grant you any license or permission to use any third party applications, software or other elements. Further, you are solely responsible for the timely payment of all applicable subscription fees and other fees owed to any third party, and your ability to access any third party software using the Services is subject to your timely payment of all applicable fees, and you acknowledge and agree that Company is not responsible for paying any subscription fees relating to any third party software, products or components. You are solely responsible for ensuring that Company has the requisite access necessary to install any Software purchased through the Catalog, and in the event that Company is unable to successfully install any Software due to firewall or other security settings that you have enabled, Company shall have no responsibility or liability for its failure to install such Software.
1.5 Certain Restrictions on Use of the Services
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any portion of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark or logo (including images, text, page layout or form) of Company; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials made available through the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services in order to build a similar or competitive website, platform or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on any portion of the Services. Any future release, update or other addition to the Services shall be subject to the Terms. Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Services automatically terminates the licenses granted by Company pursuant to the Terms.
1.6 No Support Obligations
You acknowledge and agree that the Services and all underlying Software are provided AS-IS and that Company shall not be responsible for providing any support or trouble shooting assistance relating to the Services or the underlying Software.
1.7 Third-Party Materials
As a part of the Services, you may have access to materials that are hosted or created by another party. Company takes commercially reasonable measures to ensure that applications provided in our Catalog and accessed via our Services are the legitimate offerings of the applicable third party developer (the “Third Party Offering”), however you acknowledge and agree that Company does not control and shall not be liable for any Third Party Offering. You acknowledge and agree that you access all such Third Party Offerings at your own risk and that they are offered AS-IS. You acknowledge and agree that you install these Third Party Offerings solely at your own risk. You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
You acknowledge and agree that any feedback, comments or suggestions you may provide to Company regarding Company or the Services is entirely voluntary and Company is free to use such feedback, comments or suggestions as Company sees fit and without any obligation to you.
2.1 Registering Your Account
To use the Services, you must register for an account with us through your corporate Google (i.e. G Suite) account (“Account”) and provide certain information about yourself as prompted by the Services registration form. You represent and warrant that: (a) you are at least eighteen (18) years of age; (b) all required registration information you submit is truthful and accurate; (c) you will maintain the accuracy of such information; (d) by registering for and creating your Account, you have all necessary rights and authorization to let Company access your device(s) and install any software programs onto such device(s) as you may request and/or choose through the Services; (e) you are creating an Account on behalf of the company/organization to which you are affiliated/employed and that you are not creating any Account to access the Services for your own personal purposes; and (f) your use of the Services does not violate any U.S. law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party).
2.2 Your Account
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. You may not share your Account or password with anyone except to the extent required by the company/organization with which you are affiliated/employed, and you agree to (a) notify Company immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Company, or if you have been previously banned using from any of the Services. We cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company.
2.3 Necessary Equipment and Software
You must provide all equipment and software necessary to connect to and use the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3. Ownership and Rights to Your Content
Other than Your Content (as defined below), you agree that the Services, including, without limitation, the trademarks, tradenames, logos, content, works of authorship and other materials therein, are the sole and exclusive property of the Company and its licensors.
3.2 Your Content
As used herein, “Your Content” means any content, information, works of authorship, images, videos, data, device-specific specifications, text or other materials you post, upload or otherwise make available on or via the Services, and specifically any data that you input into the Software and/or Platform, or that you allow Company to remotely access on your device through the Services. Company does not claim ownership of Your Content. Subject to the terms herein, you hereby grant (and you represent and warrant that you have the right to grant) to Company a non-exclusive, transferable, sublicensable (through multiple tiers), royalty-free, fully paid-up right and license to reproduce, display, perform, distribute, create derivatives of, digitally transmit and otherwise use Your Content for the purpose of providing, improving, and/or maintaining the Services.
3.3 Marketing Rights
You hereby grant Company a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use your name, logo, and any associated trademarks for Company’s marketing and other business purposes, to be determined at the sole discretion of Company.
3.4 Use of Anonymous Data & Benchmarking Rights
You agree and acknowledge that Company may use Your Content in an anonymized and aggregated form for the purposes of benchmarking and analysis. You hereby grant Company a worldwide, perpetual, fully paid-up, royalty free, non-exclusive right and license to: (a) use, reformat, display, transform, and create derivative works of Your Content for the purpose of product improvement and development and for use within Company’s databases in an anonymous manner; (b) to use, display, modify and create derivative works of Your Content solely to create and compile Aggregate Data (as defined herein) to use for Company’s benchmarking purposes and within its database; and (c) to copy, display, modify and distribute the Aggregate Data for any purpose that Company sees fit. “Aggregate Data” means aggregated statistics and/or any data created or derived by Company from Your Content that is not personally attributable to or identified with you, the company/organization you are affiliated with or Your Content.
4. Your Conduct and Our Acceptable Use Policy
4.1 Security Research
You acknowledge and agree that Company permits its users to use the Services to perform security research provided that: (a) such research is not for the purpose of creating competitive or similar products; (b) such research does not interfere with the Services or otherwise impact the reliability, availability, or security of the Services for other users, and c) findings of said research are disclosed to the Company and follow computer security industry best practices for “responsible disclosure”. For more information please visit our security page at https://fleetsmith.com/security.
4.2 Unauthorized Use or Access
You agree that you will not, and will not permit anyone else to, under any circumstances:
(a) Use automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with the Services;
(b) Interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support the Services; or (ii) the enjoyment of the Services by any other person;
(d) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon the Services, or other attempts to disrupt the Services;
(e) Attempt to gain unauthorized access to the Services;
(f) Attempt to probe, scan, or test the vulnerability of any Company system or network, or breach any security or authentication measures;
(g) Disrupt or interfere with the security of, or otherwise cause harm to, the Services, systems, resources, accounts, passwords, servers or networks connected to or accessible through the Services or any affiliated or linked sites; or
(h) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party to protect the Services.
(i) Interfere or attempt to interfere with the proper functioning of the Services;
(j) Systematically retrieve data or other content from the Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
(k) Use, display, mirror or frame the Services, or any individual element within the Services, Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company’s express written consent;
(l) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Services;
(m) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Services for the purpose of creating a competing product. Reverse engineering, decompiliation, disassembly, decipherment, or other attempts to derive source code or other intellectual property are explicitly allowed for the sole purpose of computer security research, as long as findings of said research are disclosed to the Company and follow computer security industry best practices for “responsible disclosure” which you may view at https://fleetsmith.com/security; or
(n) Use the Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers.
5. Third-Party Links
The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Company. Company is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Company provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Services, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
6. Fees and Purchase Terms
6.1 General Purpose of Terms: Sale of Service, not Software
The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose.
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us), valid payment information for other payment methods we choose to offer via Stripe (“Payment Provider”), or purchase order information as a condition to signing up for the Services. The Payment Provider agreement governs your use of the designated credit card or other payment option we choose to offer account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Company with your credit card number and associated payment information, or payment information associated with a different payment method, you agree that Company is authorized to immediately invoice your Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required. You agree to immediately notify Company of any change in your billing address or the credit card or other payment account used for payment hereunder. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on Company Properties or by e-mail delivery to you.
6.3 Service Fees
You will be responsible for payment of the applicable fee for any Services (each, a “Subscription Fee”) at the time you create your Account (the “Service Commencement Date”). Except as set forth in the Terms, all fees for the Services are non-refundable. Your contract with Company will begin immediately upon your successful completion of registration and creation of your Account.
Company’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this Section 6, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6.5 Withholding Taxes
You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Company will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of:
(a) your use of, or inability to use the Services;
(b) your violation of the Terms;
(c) your violation of any applicable laws, rules or regulations through or related to your use of the Services; and
(d) your interaction with any third parties, including but not limited to other users, with whom you connect through the Services.
Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. You agree that the provisions in this Section 7 will survive any termination of your Account, the Terms or your access to the Services. This provision does not require you to indemnify the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promises, misrepresentation, or concealment, suppression or omission of any material fact in connection with the Services or any services provided hereunder.
8. Disclaimer of Warranties and Conditions
8.1 As Is
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) From time to time, Company may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Company’s sole discretion. The provisions of this section 8 apply with full force to such features or tools.
8.2 No Liability for Conduct of Third Parties
YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO SOFTWARE CREATED OR MADE AVAILABLE BY A THIRD PARTY, ANY OPERATORS OF EXTERNAL SITES OR ANY OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
9. Limitation of Liability
9.1 Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY THROUGH THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. NOTWITHSTANDING THE FOREGOING, COMPANY DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY COMPANY’S NEGLIGENCE OR FOR (B) ANY INJURY CAUSED BY COMPANY’S FRAUD OR NEGLIGENCE.
9.2 Cap on Liability.
TO THE FULLEST EXTENT OF LAW, COMPANY’S AGGREGATE LIABILITY SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF THE COMPANY FOR (i) DEATH OR PERSONAL INJURY CAUSE BY THE COMPANY’S NEGLIGENCE, OR FOR (ii) ANY INJURY CAUSED BY THE COMPANY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.3 Basis of the Bargain
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or through the Services, in Company’s possession in connection with your use of the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to your requests for customer service, or (4) protect the rights, property or personal safety of Company, its Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
In the event that Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Services, Company reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Company) that you have violated the Terms;
(b) Temporarily or permanently discontinue your access to the Services;
(c) Notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(d) Pursue any other action which Company deems to be appropriate.
11. Term and Termination
The Terms commence on the date when you accept them (as described in the preamble above) by registering your Account through the Services, and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms.
11.2 Prior Use
Notwithstanding the foregoing, if you used the Services prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Services (whichever is earlier) and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Terms.
You acknowledge and agree that Company may suspend your access to the Services and your Account at any time in the event that: (a) Company becomes aware that you have created an Account and accessed the Services on an individual basis and not on behalf of any company/entity to which you are affiliated; (b) your account is tied to a subdomain (whether assigned by Company or chosen by you) that falsely affiliates you with any company/entity; (c) you use the Services in any manner that is not explicitly permitted as set forth herein; or (d) you violate any of the Terms set forth herein.
11.4 Effect of Termination
Termination of these Terms includes removal of access to the Services and barring of further use of the Services. Termination of these Terms also includes deletion of your account information and all related information, files and content associated with or inside your Account (or any part thereof). Upon termination of your access to the Services, your right to use the Services will automatically terminate immediately. All provisions of the Terms which by their nature should survive, shall survive termination of these Terms, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12. International Users
The Services can be accessed from countries around the world and may contain references to websites and content that is not available in your country. These references do not imply that Company intends to announce such content in your country. The Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Services are appropriate or available for use in other locations. Those who access or use of the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
13. Arbitration Agreement and Dispute Resolution
Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
13.1 Scope of Arbitration Agreement (“Arbitration Agreement”)
You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services, to any products or services sold or distributed through the Services (including any services), or to any other aspect of your relationship with Company will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior Agreement.
NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST THE COMPANY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU.
THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERY MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
13.2 Arbitration Rules and Forum
This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Jesse Endahl, at firstname.lastname@example.org or 548 Market St. #43552, San Francisco, CA, 94104. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at https://www.adr.org or by calling the AAA at 1-800-778-7879. Payment of all filing, administration, and arbitration fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Company will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.
13.3 Arbitrator Powers
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on you and Company.
13.4 Waiver of Jury Trial
YOU AND COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Company are instead electing to have claims and disputes resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between you and Company over whether to vacate or enforce an arbitration award, you and Company waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.
13.5 Waiver of Class or Consolidated Actions
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Company is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 13.8 (Exclusive Venue) below.
13.6 Opt Out
You may opt out of this Arbitration Agreement. If you do so, neither you nor Company can force the other to arbitrate. To opt out, you must notify Company in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: 548 Market St. #43552, San Francisco, CA, 94104. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
This Arbitration Agreement will survive any termination of your relationship with Company.
13.8 Exclusive Venue
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of California.
14. General Provisions
14.1 Electronic Communications
The communications between you and Company use electronic means, whether you visit the Services or send Company e-mails, or whether Company posts notices through the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.4 Force Majeure
Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.5 Questions, Complaints, Claims
If you have any questions, complaints or claims with respect to the Services, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.6 Governing Law
The Terms and any action related thereto will be governed and interpreted by and under the laws of the Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
14.7 Choice of Language.
It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following email address: firstname.lastname@example.org. Such notice shall be deemed given when the email notice is received by Company.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.11 Consumer Complaints
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14.12 Entire Agreement
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.