*Last Modified October 4, 2017
These Customer Terms of Service (these “Customer Terms”) describe your rights and responsibilities when using our mobile and/or web-based software platform and related services (the “Services”). If you are a Customer (defined below), these Customer Terms govern your access and use of our Services. If you are being invited to a group set up by a Customer, our User Terms of Service (the “User Terms”) govern your access and use of the Services.
These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding “Agreement” between Customer and us. “We”, “our”, and “us” refer to Hit Labs, Inc. (or its successors or assigns).
Please read these terms carefully to ensure you understand each provision. These Customer Terms contain a mandatory class action/jury trial waiver provision that requires the use of litigation on an individual basis to resolve disputes, rather than jury trials or class actions.
If you purchase subscription(s), create a group, invite users to that group, or use or allow use of that group after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Agreement and agree to the Agreement on behalf of Customer. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.
1.1 Customers, Authorized Users, and Customer Data
“Customer” is the organization that you represent in agreeing to the Agreement. If your group is being set up by someone who is not formally affiliated with a business entity or other organization, Customer is the individual creating the group. If you signed up for a subscription plan using your corporate email domain, the business entity or other organization on whose behalf you signed up is the Customer. By signing up on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to the Agreement.
Individuals authorized by Customer to access the Services (each an “Authorized User”) may submit content or information to the Services, such as messages or files (“Customer Data”), and Customer will have the sole right and responsibility for managing our use of it. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer, assign, or consolidate groups, and so on.
Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in the Agreement and for the lawful use and transmission of Customer Data and the operation of the Services.
A subscription allow Customer and its Authorized Users to access the Services. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each, an “Order Form”). Each Authorized User must agree to the User Terms to activate their account. Subscriptions commence when we make them available to Customer and continue for the term specified in the Services or in the Order Form, as applicable.
1.3 Beta Products
Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available basis without any warranties or contractual commitments we make for other Services.
Customer and its Authorized Users may choose to, or we may invite them to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”). By submitting any Idea, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation, whether to Customer, the Authorized User, or anyone else, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of the submission, we not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than Customer or its Authorized Users.
The protection of Customer Data is important to us. Accordingly, we will maintain administrative, physical, and technical safeguards consistent with prevailing standards in our industry. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Customer Data, we will promptly notify Customer and will use reasonable efforts to cooperate with Customer’s investigation of the incident. If such incident triggers any third-party notice requirements, Customer (not us) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible, and Customer is fully responsible, for what Customer’s Authorized Users do with Customer Data.
We are custodians of Customer Data. During the term of Customer’s subscription, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention settings enabled. Following termination or expiration of Customer’s subscription, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.
2.1 Our License to Customer
We own and will continue to own our Services, including all related intellectual property and other proprietary rights related to the Services. To the extent that we may make software components available, via app stores or other channels, as part of the Services. We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Agreement and the User Terms. All of our rights not expressly granted by this license are hereby retained.
2.2 Customer’s License to Us
As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license. Notwithstanding the foregoing, Customer agrees that we may collect, analyze, and use data derived from Customer Data, which is anonymized and/or aggregated in a manner designed to avoid identification of Customer or any Authorized User, in order to operate, analyze, improve, and market the Services and our other products and services. Customer further agrees that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such derived data.
With respect to that portion of Customer Data that consists of videos, images, music, comments, questions, and other similar content submitted, posted, or otherwise made available by Customer and its Authorized Users through the Services (“User Content”), by submitting, posting, or otherwise making such User Content available through the Services, Customer grants, and represents and warrants that it has all rights necessary to grant, to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content, and the names, voice, and/or likeness contained in the User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with our provision of the Services. Further, in connection with such User Content, Customer represents and warrants that: (i) it has the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Services and the Agreement, and each such person has released Customer from any liability that may arise in relation to such use; (ii) it has obtained and is solely responsible for obtaining all consents as may be required by law to post any User Content relating to third-parties; (iii) the User Content and our use of it as contemplated by the Agreement and the Services will not violate any law or infringe any third-party’s rights, including but not limited to any intellectual property or privacy rights; and (iv) we may exercise the rights to the User Content granted under the Agreement without liability for payment of any guild fees, residuals, payments, or other fees or royalties payable under any collective bargaining agreement or otherwise.
We take no responsibility and assume no liability for any User Content that Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services. As between Customer and us, Customer shall be fully responsible for the User Content and the consequences of submitting, posting, or otherwise making it available via the Services, and Customer acknowledges and agrees that we are acting only as a passive conduit for Customer’s and its Authorized Users’ online distribution of such User Content.
2.3 Responsibilities for Customer Data
We are not responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Data. Customer represents and agrees that Customer is solely responsible for ensuring compliance with all laws in all jurisdictions that may apply to Customer Data provided hereunder, including but not limited to privacy laws. Unless otherwise agreed to in writing, Customer may not submit any Customer Data that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), or the Children’s Online Privacy Protection Act (COPPA), or any other data which is considered to be sensitive or which could give rise to notification obligations under data breach notification laws. The Services are not intended for and should not be used by anyone under the age of 13. Customer must ensure that all Authorized Users are over 13 years old. We do not make any representations as to the adequacy of the Service to process your Customer Data or to satisfy any legal or compliance requirements which may apply to your Customer Data, other than as described herein.
2.4 Use of the Services
Customer must comply with the Agreement and ensure that its Authorized Users comply with the Agreement and the User Terms. We may review conduct for compliance purposes, but we have no obligation to do so.
If we believe there is a violation of the Agreement that can be remedied by Customer’s removal of certain Customer Data, we will, in most cases, ask Customer to take direct action rather than intervene. However, we reserve the right to take further appropriate action, when we deem it reasonably appropriate if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
3.1 Payment Terms
For Customers that purchase a subscription to use our Services, fees are specified through the Services interface or in the Order Form(s) — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Agreement, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
3.2 Billing Policies
If you elect to purchase a subscription to use our Services, or certain other paid aspects of the Services, Customer agrees to the pricing communicated to you by us. We may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in our sole discretion. Any change to such pricing shall become effective in the billing cycle following notice of such change as provided under the Agreement.
3.3 Payment Information
All information that you provide in connection with a purchase or transaction or other monetary transaction with the Services must be accurate, complete, and current. Customer agrees to pay all charges incurred by Authorized Users at the prices in effect when such charges are incurred.
4.1 Agreement Term
As further described below, a free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all subscriptions and all Order Forms.
Unless otherwise set forth in an Order Form, (a) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will be the then-current price communicated to you by us. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop a subscription from automatically renewing.
4.3 Termination for Cause
We or Customer may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Agreement caused by its Authorized Users. We may terminate the Agreement immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.
4.4 Termination Without Cause
Customer may terminate its free subscriptions immediately without cause. We may also terminate Customer’s free subscriptions without cause, but we will provide Customer with thirty (30) days prior written notice.
4.5 Effect of Termination
Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Since we respect artist and content owner rights, it is Company’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
Hit Labs, Inc.
466 North 900 West
American Fork, UT 84003
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, Customers and Authorized Users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate subscriptions of any Customer or Authorized User who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
6.1 S. Government Customers
If Customer is a U.S. government or U.S. public entity (or use of the Services is for the U.S. Government), the terms in this section apply.
6.2 State or Local Government Customers
If Customer is a state or local government, the terms in this section apply, but only to the extent the Services are being used in an Authorized User’s official capacity as a state or local government official. The sections in the Contract titled “Governing Law,” “Venue; Waiver of Jury Trial; Fees,” and “Customer’s Indemnification of Us” will not apply to Customer only to the extent Customer’s jurisdiction’s laws prohibit Customer from accepting the requirements in those sections.
6.3 Healthcare Customers
If Customer is a Covered Entity as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), unless Customer has entered into a written agreement with us to the contrary, Customer acknowledges that we are not a Business Associate or subcontractor (as defined in HIPAA) and that the Services are not HIPAA compliant. Customer must not submit, collect or use any “personal health information” as defined in 45 CFR §160.103 (“PHI”), with or to the Services. Further, we suggest that Customer advise Authorized Users directly that they should not transmit PHI through the Services. Customer agrees that we have no liability for PHI received from Customer, notwithstanding anything to the contrary herein.
6.4 Education Professional Customers
If Customer is a school or educator in the United States and wants its students, who are over the age of 13, to use the Services, Customer is responsible for complying with the U.S. Family Educational Rights and Privacy Act (“FERPA”) and all other law, rules, and regulations protecting the privacy of student data which may be applicable to Customer. Unless otherwise agreed to in writing, Customer may not submit Customer Data which contains personal information from a student’s educational record, as defined by FERPA. Customer is responsible for obtaining all necessary consents, if applicable, before permitting its users to submit information through the Services.
Customer represents and warrants that it has validly entered into the Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Agreement and the User Terms. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
OTHER THAN IN CONNECTION WITH CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
IN NO EVENT WILL EITHER CUSTOMER OR US HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement and the pricing for the Services.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer agrees to defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and its and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) Customer’s and any Authorized User’s use of and access to the Services, including any Customer Data or other content transmitted or received by Customer or any Authorized User; (b) your violation of any term of the Agreement, including without limitation any breach of Customer’s representations and warranties above; (c) Customer’s or any Authorized User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) Customer’s or any Authorized User’s violation of any applicable law, rule or regulation; (e) Customer Data or any content that is submitted via Customer’s or any Authorized User’s account, including without limitation misleading, false, or inaccurate information; (f) Customer’s or any Authorized User’s gross negligence, fraud, or willful misconduct; or (g) any other party’s access and use of the Services with Customer’s or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault).
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
10.2 Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Agreement.
10.3 Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time.
11.2 Third Party Products, Links, and Information
11.3 Force Majeure
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
11.4 Relationship of the Parties; No Third Party Beneficiaries
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement.
11.5 Email Communications
Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to email@example.com. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
We may change these Customer Terms and the other components of the Agreement (except any Order Forms). If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety (including all Order Forms), without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10 Governing Law
The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.11 Venue; Waiver of Jury Trial; Fees
The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
11.12 Entire Agreement
The Agreement, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) the Customer Terms and (3) any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.
11.13 Additional Terms for Mobile Applications
The following applies to any Services acquired from the Apple App Store (“Apple-Sourced Software”): Customer acknowledges and agree that this Agreement is solely between Customer and us, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Customer’s use of the Apple-Sourced Software must comply with the App Store Terms of Service. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software (if any); to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by the Agreement and any law applicable to us as provider of the software. Customer acknowledges that Apple is not responsible for addressing any claims by Customer or any third party relating to the Apple-Sourced Software or Customer’s possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by the Agreement and any law applicable to us as provider of the software. Customer acknowledges that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. Customer and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to Customer’s license of the Apple-Sourced Software against Customer as a third-party beneficiary thereof.
Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including but not limited to Sections 1.4, 2.2, 3, 4.5, and 5 through 11.
11.15 Contacting Us
Please also feel free to contact us if you have any questions about the Customer Terms or any other part of the Agreement. You may contact us at firstname.lastname@example.org or at our mailing address set forth in Section 5 above.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.