These are the terms and conditions (the “Terms”) that apply to and govern a person, firm or corporation (a “Customer”) who/which buys from the Company any service or services, software, web site or sites (individually a “Service” and collectively the “Services”) and/or uses any Service or Services. Unless otherwise expressly agreed in writing by a Customer and the Company, and subject to the terms set out in any agreement specifically negotiated and entered into between the Company and a particular customer, any agreement a Customer enters into for the purchase or use of a Service shall be deemed to be upon and subject to these Terms, which are incorporated by reference into any such agreement.
Wherever used in these Terms, “the Company” or “Company” includes the Company’s subsidiaries and affiliates.Provision of Services by The Company
The Company provides its Services as a cloud-based Software-as-a-Service (SAAS) platform. Each Customer of Services hereby acknowledges and agrees as follows:
- The Company may provide Services to Customers and their employees.
- The Company has the right at any time, and from time to time, in its sole discretion and without prior notice to or approval of Customer, to a) amend or change the nature and/or the form of the Services which the Company provides, and b) cease providing, whether temporarily or permanently, a Service, and/or any feature or features of a Service.
- The Company reserves the right, in its sole discretion and at any time and from time to time, without any prior notice to a Customer, to set a fixed maximum on the number of transmissions a Customer is permitted to send or receive through a Service, and/or on the amount of storage space used for the provision of any Service.
Customer’s Use of the Services
A Customer may be required to provide information about himself/herself in order to access certain Services, as part of the registration process for the Services, or as part of the Customer’s continued use of the Services. That information may include identification or contact details for the Customer and Customer agrees that any registration information given by Customer to the Company always will be current, complete and correct.
A Customer agrees that he/she will only use the Services for purposes permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from any relevant countries).
A log in by a Customer may only be used by that Customer. A Customer is not permitted to share the Customer’s username and/or password with any other person, firm or corporation.
A Customer understands that he/she may not gain access to or attempt to gain access to any Services by any means other than through the interface that is provided by the Company, unless he/she specifically has been permitted to do so in a separate agreement with the Company. Customers specifically agree not to gain access or attempt to gain access to any of the Services using or through any automated means including, without limitation, using web crawlers or scripts or otherwise. Every Customer agrees not to engage in any action or activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Unless and until a Customer has been specifically allowed to do so in a separate agreement with the Company, each Customer agrees with the Company that he/she will not reproduce, duplicate, copy, sell, trade, dispose of, exchange or resell a Service or the Services for any purpose and agrees that he/she alone is responsible for (and that the Company has no responsibility to him/her or to any third party for) any breach of his/her obligations under the Terms and for the consequences (including any loss or damage which such Customer or any other Customer or any other person, firm or corporation may suffer) resulting from any such breach. Customer will not (and will not permit or direct any third party to), directly or indirectly for whatever purpose, a) analyze, reverse engineer, decompile, disassemble or otherwise attempt to discover any part or parts of the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data (“Software”) related to the Services for any purpose(s), b) access the Services to monitor the Services’ availability, functionality, or for any other benchmarking or competitive purpose(s), and/or c) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted or authorized by the Company). The look, feel, and function of the Software is copyrighted. A Customer may not duplicate, copy, or reuse any portion of the Software, including without limitation, any visual design element or concept without express written permission from the Company.
If the Company’s Services include any community, chat, forum and/or helpdesk the Customer agrees not to solicit work from, or offer to provide the Customer’s services to, any other of the Company’s Customers. The Company shall not prohibit the Customer from providing the Customer’s contact information to other Customers or from working with any Customer, provided such Customer has independently solicited the information or cooperation outside of the Company’s Services and provided such Customer does not furnish a service to any Customer materially similar to any one or more of the Services supplied by the Company.
The Company and the Customer each shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each of the Company and the Customer hereby represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer agrees that the Customer shall not permit any person to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.
The Customer acknowledges that the Company’s ability to deliver and to continue to deliver the Services in a timely manner may be dependent upon the Customer’s ongoing cooperation and assistance, as advised by the Company to the Customer. Accordingly, the Customer agrees to supply to the Company, on a timely basis, all information, material and assistance which in its sole opinion the Company advises the Customer that the Company needs in order for the Company to be able to deliver, or continue to deliver, as the case may be, the Services to the Customer including obtaining content and any additional information, material, or assistance identified by the Company and, if applicable, by the Customer.
Confidentiality of Customer and Company
In the case of information and/or assistance provided by the Company to the Customer, or by the Customer to the Company, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial or other information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of the Customer includes non-public data provided by the Customer to the Company to enable the provision to the Customer by the Company of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) the Disclosing Party has expressly agreed in writing with the Receiving Party that the Receiving Party may release or make known or (f) is required to be disclosed by law.
Security of a Customer’s Password(s) and Account(s)
Each Customer agrees that the Customer is solely responsible for maintaining the confidentiality of passwords associated with any account he/she uses to access the Services, and agrees that he/she will be solely responsible to the Company for all activities that occur under or in relation to his/her account. If any Customer becomes aware of any unauthorized use of his/her password or account, the Customer agrees to notify the Company of that unauthorized use immediately at Support@Involvesoft.Com and to cooperate fully with the Company in dealing with same. The Company accepts no responsibility for keeping a Customer’s account and password secure.
Privacy and Personal Data Protection
Subject to any written agreement to the contrary, at all times a Customer is and will remain owner of all content created by the Customer as a user of the Services. The Customer is solely responsible for the accuracy and integrity of that content and the Company has no responsibility or liability whatsoever with respect to that content.
A Customer can electronically retrieve or delete his/her content through the options provided by the Services. Despite this, a Customer’s content may still be stored by the Services in backup tapes, drives, and/or other backup media. The Company has no responsibility to attempt to recover any deleted Content.
The Customer is prohibited by this agreement from changing, obscuring or removing any intellectual or other proprietary rights notices attached to, contained in, or related to the Services. In using the Services, a Customer agrees that he/she will not engage in any unauthorized use of any intellectual property (including without limitation any trade name, trade mark, logo) of any other Customer or any firm or corporation or use any such intellectual property in a way which does or may cause confusion as to the identity of the owner or authorized user of such intellectual property and which does not expressly provide any proper and required copyright and other attribution. The Customer recognizes, acknowledges and agrees that the Company does not pre-screen any content that the Customer may input or provide in relation to the Customer’s use of the Services. The Customer further agrees that the Company, in its sole discretion and without any prior notice or approval to or by the Customer, has the unfettered right (but not the obligation) to remove any content and/or account(s) which in its sole discretion finds or considers is or may be unlawful, offensive, threatening, obscene, libellous, defamatory, pornographic, or otherwise objectionable or to be otherwise unacceptable to the Company. The Customer agrees that the Company, in its sole discretion, has the right to refuse or remove any content that is available in relation to the Services, without any liability to the Customer for so doing. The Customer recognizes and agrees with the Company that Customer will fully indemnify and save harmless Company from and against any cost, loss or damage (including court costs and legal fees and related costs) which the Company may suffer or incur or be required to pay by reason of or arising from or out of Customer’s failure to comply with the foregoing obligation.
In consideration of a Customer being permitted to use the Services, the Company requires the Customer to understand that when the Customer is using the Company’s Services, the Customer will be exposed to third party submissions from a variety of sources, and that the Company is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such third party submissions. The Customer further acknowledges that the Customer understands and acknowledges that the Customer may be exposed to third party submissions which are inaccurate, offensive, indecent, or objectionable, and the Customer agrees to waive, and hereby does waive, any legal or equitable rights or remedies which the Customer has or may have against the Company with respect thereto, and agrees to indemnify and hold Company, its owners, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to the Customer’s use of the Services.
The Company does not endorse any third party submission or any opinion, recommendation, or advice expressed therein, and the Company expressly disclaims any and all liability in connection with third party submissions.
The Company does not knowingly permit copyright infringing activities and infringement of intellectual property rights on its website, or in the use of its Services and the Company will remove all content and third party submissions if properly notified that such content or third party submission infringes on another’s intellectual property rights. The Company reserves the right to remove content and third party submissions without prior notice and disable the access to content by a Customer for any reason related to that person’s, firm’s or corporation’s content.
Proprietary Rights in and to the Services
The Customer shall own all right, title and interest in and to any data (the “Customer Data”) supplied by the Customer in the course of the Customer’s use of the Services. The Company or its licensors owns and shall own and retain all right, title and interest in and to (a) the Services and the software related to the Services, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing which subsist in the Services and wherever in the world those rights exist. Notwithstanding anything to the contrary, the Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning the Customer Data and data derived therefrom), and the Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such information and data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set out herein.
The Customer hereby acknowledges the Company’s aforesaid ownership, acknowledges that the Services may contain information which is designated confidential by the Company, and agrees not to disclose that information without the Company’s prior written consent, which consent the Company may arbitrarily withhold. The Customer has no right to use any of the Company’s intellectual property without prior written consent including, without limitation, the Company’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, including without limitation, the trade name InvolveSoft®.
The Company will have no legal right with respect to content a Customer sends, posts, shows or otherwise provides or discloses on or through the Services and has no duty to protect rights, if any, which are possessed by a Customer or any third party with respect to such content. It is the Customer`s obligation to protect and/or enforce such rights, if any.
The Software which a Customer uses may automatically download and install updates from time to time from the Company. These updates are designed to improve, enhance and further develop the Services and may take any form, including without limitation, bug fixes, enhanced functions, new software modules and completely new versions. All Customers agree to receive such updates (and permit the Company to deliver the updates to them) as part of their use of the Services.
The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform its obligations in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail to the Customer of any scheduled service disruption.
Company shall use reasonable efforts to make the Services available 99.5% of the time, measured monthly, excluding scheduled maintenance. Any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will be excluded from any such calculation. Should the Services availability be less than 99.5% in any given month, Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that Company will credit Customer one month of the Service fees, provided that no more than one such credit will accrue per month. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within twenty-four hours from the time of downtime, and failure to provide such notice will forfeit the right to receive availability credit. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Prices, Payments, Cancellations and Refunds
Services are billed to and payable in advance by the Customer, for the length of term (monthly, annual or other) that is applicable to the Customer’s purchase of Services. Customer will pay Company the Company’s then-applicable fees (the “Fees”) for the Services as ordered on either the Company’s website or a signed Order Form (the “Order Form”), and in accordance with the terms set out on or in the Order Form. All Fees are exclusive of any applicable taxes whether federal, state, national, withholding and/or VAT taxes and applicable customs duties or tariffs (collectively “Taxes”). The Customer is responsible for the payment of all Taxes applicable to the Services. If the Company has the legal obligation to pay or collect any Taxes for which the Customer is responsible under this agreement, the Company will invoice the Customer for the applicable amount which the Customer hereby agrees to pay to the Company forthwith unless the Customer provides the Company with a valid tax exemption certificate issued by the applicable and competent taxing authority.
If the Customer’s use of the Services exceeds the service capacity set out on the Order Form or otherwise requires the payment of additional fees (in accordance with the terms of this agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner and at the time or times at which Fees are payable by that Customer under that Customer’s agreement with the Company as provided herein. The Company, at its sole discretion at any time, and from time to time, and without prior notice to any Customer, reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the term applicable to the Customer’s agreement to purchase the Services. In such circumstances, the Company will use reasonable efforts to notify the Customer by posting a notification of these changes inside the Service.
In order to have and maintain accurate billing by the Company to the Customer for the Services, the Customer agrees to provide and maintain complete and accurate billing and contact information in that regard.
All transactions between the Company and the Customer are final and all payments by the Customer to the Company are final. If the Customer cancels, upgrades or downgrades the Customer’s Services contract with the Company, the Company will not provide any refund to that Customer or credit for any unexpired time which remains on that Customer’s term of use of Services at the time the Customer cancels, upgrades or downgrades that contract with the Company. The Company does not issue refunds for transactions or Services that have been paid for by the Customer, except as otherwise agreed to in writing. In its sole discretion, the Company reserves the right to postpone or otherwise amend or alter the start date of the Services, at any time. The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after the mailing or transmission date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination by Company of the Services.
If a Customer desires to change or cancel his/her license or other agreement with the Company respecting a Service, the Customer can voluntarily cancel the Customer’s account by going to the cancellation page in the Service and following the instructions which appear on that website page. Unless otherwise provided at that time, no cancellation will be permitted by email, telephone, facsimile or other written request or demand.
If the Customer chooses to upgrade the Customer’s Services contract, the credit card used by the Customer when Customer purchased that contract will be billed for the cost applicable to that upgrade new contract/license.
Subject to earlier termination as provided in these Terms, the term of this agreement is specified in the Order Form and shall be automatically renewed for additional periods of the same duration, unless the Customer requests termination prior to the end of the then-current term. If a Customer desires to change or cancel the Customer’s license or other agreement with the Company respecting the Services, or respecting a Service, the Customer can do so by going to the cancellation page in the Service and then following the instructions which appear on that website page. Unless otherwise provided at that time, no cancellation will be accepted or permitted by any other mode or means including, without limitation, by email, telephone, facsimile or other request or demand.
In addition to any other remedies it may have, the Company also may terminate this agreement i) without notice in the case of non-payment by the Customer to the Company of any Fees, ii) apart from payment of Fees, if Customer breaches or fails to perform any of the Customer’s obligations under this agreement, or iii) if the Customer becomes insolvent or ceases to carry on business. In the case of any such termination of this agreement by the Company, the Customer will pay the Company immediately and in full for the Services up to and including the last day on which the Services are provided to the Customer. Prior to the termination, cancellation or expiration of this agreement, the Customer has the right to export any Customer Data from the Customer’s Services. Upon any termination of the Customer’s agreement with the Company, a Customer’s Customer Data will not be accessible by the Customer and thereafter the Company may, but is not obligated to, delete all applicable Customer Data from the Company’s records and/or storage. All sections of this agreement which create or impose rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability shall survive the termination, cancellation or expiration of the Customer’s agreement with the Company.
The Customer is solely responsible for correctly and completely taking all steps required to carry out the cancellation of the Customer’s Services contract with the Company. The cancellation steps required are those set out in the Services at the time the Customer cancels the Customer’s agreement.
The Company, at its sole option, at any time may terminate this agreement without cause and without any notice to Customer without prior notice to the Customer if the Company finds or, in its sole opinion believes:
- The Terms of Service or Services have expired; or
- Customer has breached any provision of the Terms or has indicated to the Company that he/she does not intend to comply with the Terms; or
- The Company is required to do so by law (for example, if its provision of the Service or Services to the applicable Customer of the Services is, or becomes, unlawful); or
- The Company for any reason no longer can offer a Service or no longer can offer the Services in a Customer’s country of residence; or
- It is no longer commercially desirable or feasible for the Company to continue to offer or provide the Service or Services to the Customer.
When these Terms come to an end, whether through cancellation, expiration or otherwise of a Customer’s Services contract with the Company, all of the legal rights, obligations and liabilities that a Customer and the Company have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation.
Exclusion of Warranties
Subject to any applicable law which limits the Company’s exclusion or limitation of warranty or liability for losses, a Customer acknowledges to and agrees with the Company that his/her use of the Service or Services is at his/her own and sole risk and that the Services are provided by the Company to him/her on an “as is” and “as available” basis. Without limiting the generality of the foregoing, the Company and its licensors, do not represent or warrant to any Customer that:
- The Services are fit for the Customer’s purposes or will meet his/her requirements; or
- The Customer’s use of the Services will be uninterrupted, timely, secure or free from error; or
- Any information obtained by a Customer’s using the Services will be correct and/or reliable; or
- Any defects in the operation or functionality of any software the Company provides in connection with the Service or the Services will be corrected by the Company.
Any material downloaded or otherwise obtained through the use of the Services is done at Customer’s own sole discretion and risk and the applicable Customer is solely responsible for any damage to his/her computer system or other device or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by a Customer from the Company or through or from the Service or the Services creates any warranty not expressly stated in the Terms. The Company is not responsible for any damage to a Customer’s computer system or wireless device which is occasioned by accessing a Service and/or the Company’s email address and/or any website or websites owned or operated by the Company or related to the Services; for lost, interrupted, inaccessible, incompatible or unavailable networks, servers, satellites, internet service providers, wireless carriers, websites (including without limitation any website or websites owned or operated by the Company); for availability or accessibility problems arising in connection with or over the course of the agreement between the Company and a Customer; for miscommunications, failed, jumbled, scrambled, delayed, or misdirected computer, telephone or cable transmissions, or hardware or software malfunctions, failures or difficulties; for any technical malfunctions, failures, or difficulties, printing errors or omissions, clerical, typographical or other error(s) or omissions in any materials connected to the Services; for any errors or omissions or failures of any kind, whether human, mechanical, clerical, electronic, interruption of power, or technical in nature or other; or for the incorrect or inaccurate capture of information, or the failure to capture any information.
THE SERVICES ARE PROVIDED “AS IS” AND THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, GUARANTEES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Limitation of liability and Release by the Customer of the Company
Customer understands and agrees that, subject to applicable law, the Company and its licensors shall not be liable to any Customer for:
- Direct, indirect, incidental, special, consequential or exemplary damages which are or may be incurred by a Customer, however caused and under any theory of liability. Without limiting the generality of the foregoing limitation, the Company is not liable to any Customer for any direct or indirect loss of profit, any loss of goodwill or business reputation, any loss of data, cost of procurement of substitute Services, or other intangible loss; and
- Any loss or damage which may be incurred by a Customer, including but not limited to a Customer’s loss or damage caused by or involving a) any reliance a Customer places or may place on the completeness, accuracy or existence of any advertising or as a result of any relationship, or b) any transaction between a Customer and any advertiser or sponsor whose advertising appears on or is related to the Services, or c) any changes which the Company makes to the Services or price for the Services, or for any modification, permanent or temporary cessation or suspension in the Company’s providing any service or the Services (or any features within the Services), or d) deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through a Customer’s use of the Services, or e) a Customer’s failure to provide the Company with accurate account information, f) a Customer’s neglect or failure to keep his/her password or account details secure and confidential, or g) any modifications .Note: The foregoing limitations on the Company’s liability to a Customer apply irrespective of whether the Company has or has not been advised of or should have been aware of the possibility of any such loss or losses arising.
The Service or Services may include hyperlinks to other web sites or content or resources. The Company may have no control over any web sites or resources which are provided by companies or persons other than the Company. Each Customer acknowledges and agrees that the Company is not responsible for the availability of any such external sites or resources, and does not endorse (and is not responsible in any way for or respecting) any advertising, products or other materials on or available from such web sites or resources. Each Customer acknowledges and agrees that the Company is not liable for any loss or damage which may be incurred by the Customer as a result of the availability of those external sites or resources, or as a result of any reliance placed by a Customer on the completeness, accuracy or existence of any advertising, services or other materials on, or available from, such web sites or resources.
The Customer acknowledges, releases and agrees to hold harmless, the Company, the Company’s parent, related and affiliated companies, and each of their respective officers, directors, shareholders, employees and agents (collectively, the “Releasees”) from and against any and all liability whatsoever for any injuries, losses or damages of any kind, including death or property damage or personal injury and any claims based on personality, privacy rights or defamation (including, without limitation, any and all liability for any damage or damages whether direct, indirect, incidental, consequential or punitive) occurring at or in any way in connection with the Services, or the accessing or utilization of the Services. In addition, the Customer hereby acknowledges and agrees that the Releasees shall have no liability whatsoever for, and shall be held harmless by the Customer against, any injuries, losses or damages of any kind, whether direct, indirect, incidental, consequential or punitive, resulting from following the whole or any part of any advice or information published or broadcast or provided in or in connection with the Services.
Communications from The Company Information Such as Newsletters
A Customer may choose to agree to receive newsletters and other communications from the Company by subscribing to a newsletter. At the Customer’s option, the Customer may inform the Company that he/she no longer wishes to receive these communications by unsubscribing using the “unsubscribe” link at the bottom of all newsletters and other special offer emails.
By purchasing the Services, a Customer agrees to receive communications from the Company for administrative purposes, such as account confirmation, profile information validation and other similar reasons. Communication may come in the form of e-mail, and/or postal mail. A Customer cannot opt-out of receiving these communications, unless the Customer terminates his/her subscription for Services with the Company.
Customer’s Permission for Use of Name and/or Logo
The Customer hereby grants permission to the Company to refer to you as a customer in sales presentations, i.e. to use your name and/or logo. With your written consent, the Company may refer to you as a customer in marketing activities, such as press releases, case studies, and/or advertising material(s). If the Company so requests of a Customer, the Customer agrees to reasonably cooperate with the Company to serve as a reference account respecting the Company’s performance of the Services.
Changes to the Terms and Services
The Company has the right, in its sole discretion, to change, modify, terminate, or discontinue these Terms, at any time and from time to time. The amended or new Terms will be available to Customers on the Company’s website and, if applicable, on, within or through any applicable Service. If a Customer uses the Service or Services on or after the time and day on which the Company changes these Terms, that Service use by a Customer constitutes his/her acceptance of the amended or new Terms. The Company has the right, in its sole discretion, to change, modify, terminate, or discontinue, whether temporarily or permanently, any service or services which form the whole or any part of the Services, at any time and from time to time and accepts and shall have no liability to any Customer for any loss or losses which a Customer may incur as a result of the Company’s exercising said right.
In the event that, in the Company’s sole opinion, the Company is impeded or prevented from continuing to offer a Service or the Services as planned or intended by any event beyond the Company’s control, including, but not limited to, fire, flood, natural or manmade epidemic or crisis, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, terrorist threat or activity, war (declared or undeclared), any federal, state, provincial, territorial or local government law, order or regulation, public health crisis, the order of any court or jurisdiction, or by any other cause not reasonably within the Company’s control, then subject to any governmental approval which may be required, the Company shall have the right to modify or suspend or terminate its offer of the affected Service or Services. The Company shall not be liable for any delay or failure to perform any of its obligations under these Terms if such delay or failure is due to causes beyond its control including, without limitation, the incidents and causes referred to in this Force Majeure provision of these Terms.
The Company’s Fairness and Non-discriminatory Practice Policy: The Company is committed to complying with all applicable laws respecting fairness and non-discrimination and, without limiting the generality of the foregoing, has a policy of equal opportunity and freedom from harassment, recognizes it is important to teach and mark fairly and does not and shall not discriminate on the basis of race, color, religion (creed), gender, gender expression, age, national origin (ancestry), disability, marital status, or sexual orientation or, if and where applicable, military status, in any of its activities or operations
Subject always to these Terms or any terms set out in any agreement specifically negotiated and entered into between the Company and a particular customer, in the event there is a discrepancy or inconsistency between disclosures or other statements contained in any Service, or advertising or other publicity or materials or communications concerning or related to the Services or the Company, and the provisions contained in these Terms, the provisions of these Terms shall prevail, govern and control. It is the express wish of the Customer and the Company that these Terms and all related documents be drawn up in the English language.
Customer acknowledges that he/she fully appreciates, understands and accepts that any forward-looking representation or statement in the Company’s advertising or press releases or public statement, or in these Terms, which refers to services or features of services which may be incorporated into the Services in the future are not currently available and may not be delivered in the future or on time or in any particular form or with any particular content or capability or at all. Customer who chooses to purchase the Services should make his/her purchase decision based upon the features that are currently available in the Services. Company has no obligation and does not intend to update this forward-looking statement.
It is possible that, as a result of using the Services, a Customer uses the Service or downloads software, or purchases goods, which is/are provided by another person or company. In such case, the Customer’s use of such other product, software or goods may be subject to separate terms between the Customer and the Company or person which/who supplies that other product, software or goods. In any such case, these Terms do not affect the Customer’s legal relationship with those other companies or individuals. Subject to any separate and distinct agreement between a Customer and the Company, together with the details of any other agreement specifically negotiated and entered into between the Company and Customer which governs his/her use of the Services, these Terms constitute the entire agreement between a Customer and the Company with respect to any Service purchase made by that Customer and supersedes all previous agreements, understandings and representations relating thereto. Each Customer does however agree that the Company may provide him/her with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the its website. No Customer may assign any agreement with the Company to any third party without the prior written consent of the Company, which consent the Company may grant or withhold in its sole discretion. These Terms will be binding upon and will enure to the benefit of (i) Customer’s heirs, executors, administrators, other legal representatives and permitted assigns; and (ii) the Company and it successors and assigns. If the Company fails to exercise or enforce any legal right or remedy which is contained in the Terms (or of which the Company has the benefit under any applicable law), such failure does not constitute a waiver of the Company’s rights and those rights or remedies will still be available to the Company. Each Customer acknowledges and agrees that each member of the group of companies of which the Company is the parent shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.
In the event that one or more of the provisions of the Terms is invalid or otherwise unenforceable, 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 enforceability of remaining provisions will be unimpaired.
The Terms, and a Customer’s relationship with the Company under the Terms, shall be governed by the laws of the state of California and the federal laws of The United States of America applicable therein unless the applicable laws of a Customer’s State or Country of residence require that the laws of such State or Country govern, in which case, the laws of such State or Country will govern. The courts of Los Angeles, California in the United States of America will be the exclusive jurisdiction for any claim, action or dispute with the Company arising under these Terms or relating in any way to a Customer’s use of the Services, unless required otherwise by applicable laws of a Customer’s state or Country of residence. Notwithstanding the foregoing, each Customer agrees that the Company, at its sole discretion, may seek injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
Any notice given under or pursuant to these Terms by one party to the other party must be in writing and will be deemed to have been duly given: when actually received by the party to whom the notice is being given, if personally delivered; when receipt by the party to whom the notice is being given is electronically confirmed, if transmitted by the party giving notice to the facsimile or e-mail address last known to party giving the notice; and if sent by the party giving the notice, for next day delivery by recognized overnight delivery service, on that next day; and upon actual receipt by the party to whom the notice is being given, if sent by certified or registered mail, return receipt requested