1. Terms and Conditions
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer access to the Website and related services. As part of the registration process, Customer will identify a username and password for their account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
Subject to the terms hereof, Company will provide Customer with reasonable support services in accordance with the terms set forth in Exhibit A.
2. Restrictions and Responsibilities
Customer will not: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Website, services or any software, documentation or data related to the Website or services; modify, translate, or create derivative works based on the Website, services or any related software; use the Website, services or any software for timesharing or service bureau purposes; or remove any proprietary notices or labels.
Customer represents and warrants that Customer will use the Website and services only in compliance with Company’s standard published policies and all applicable laws. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Website and services.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Website and services, including modems, hardware, software, operating systems, web servers and the like.
3. Confidentiality: Proprietary Rights
Each party understands that the other party may disclose business, technical or financial information relating to their business. Such information is confidential information. The receiving party agrees: (i) to take reasonable precautions to protect such information, and (ii) not to use or divulge such information except as necessary for the performance of the services or as permitted herein. This does not apply to information that is or becomes publicly known, was known prior to disclosure, was disclosed without restriction by a third party, or is required to be disclosed by law.
Customer shall own all right, title and interest in and to any content uploaded, shared or provided by Customer on or through the Website (“Customer Content”), as well as any data that is based on or derived from the Customer Content. Company shall own and retain all right, title and interest in and to (a) the Website, services, and any software, applications, or technology developed in connection with the Website or services, and (b) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, 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 Website, services and related systems and technologies, and Company will be free to use such information and data to improve the Website and services. No rights or licenses are granted except as expressly set forth herein.
4. Payment of Fees
Customer will pay Company the applicable fees described on the Order Form for
use of the Website and services. Company reserves the right to change the fees or applicable charges, upon thirty (30) days prior notice to Customer. Non-payment may result in suspension of Customer's access to the Website and services.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received within thirty (30) days after the mailing date of the invoice. Unpaid amounts may result in termination of Customer's account and access to the Website and services.
5. Term and Termination
This Agreement will remain in effect until terminated by either party. Either party may terminate this Agreement for any reason upon thirty (30) days notice.
Upon termination, Company will make available Customer Content for electronic
retrieval for a period of thirty (30) days, but thereafter may delete any remaining
Customer Content. All sections of this Agreement related to proprietary rights, payment, confidentiality, disclaimer of warranties, liability limitations and any other terms that by their nature should survive termination will survive termination.
6. Warranty Disclaimer
The website, services and related software are provided "as is" without warranty of any kind. Company disclaims all warranties, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose and non-infringement. Company does not warrant that the website or services will be uninterrupted or error free.
7. Limitation of Liability
Company and its suppliers shall not be liable for any indirect, incidental, special, consequential or punitive damages, or any loss of profits, revenue, data or data use.
Company's maximum liability for any damages arising out of or related to this agreement or customer's use of the website and services, whether in contract or tort, or otherwise, shall in no event exceed, in the aggregate, the total amounts actually paid to.
Company for the services under this agreement in the twelve (12) month period immediately preceding the event giving rise to such claim.
If any provision of this agreement is invalid or unenforceable, the remainder of this agreement shall continue in full force and effect. This agreement constitutes the entire agreement between Customer and Company with respect to the use of the website and services. No waiver or modification of this agreement shall be valid unless in writing signed by both parties. The failure of Company to exercise or enforce any right or provision of this agreement shall not operate as a waiver of such right or provision. The section titles in this agreement are for convenience only and have no legal or contractual effect. This agreement operates to the fullest extent permissible by law. If any provision is unlawful, void or unenforceable, that provision is deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.