End User License Agreement
Website Development and Digital Services
Last updated: May 1, 2019
Your use of the Platform (as defined below) and related Services (as defined below) is governed at all times by this End User License Agreement (“EULA”). References herein to “you,” “your,” and “licensee” in this EULA refers to the individual and, if applicable, the entity you represent using the Platform and/or Services. References in this EULA to “we,” “our,” “us,” and “Company” herein means the counterparty referenced in the order form and/or commercial terms which reference this EULA and incorporate it by reference. For purposes of this EULA, “Platform” means that online software service platform offering, as further described at: www.monosolutions.com/platform-description.
Section 1. EULA Acceptance
(a) You must agree to this EULA prior to your use of the Platform and/or Services (asdefined below). Please read this EULA in its entirety, as it governs your rights to access and use the Platform and any Services made available to you through the Platform. If you do not agree to be bound by this EULA, you are prohibited from using the Platform and the Services.
(b) Only individuals at least 18 years old located in the United States or such other jurisdiction as may be agreed to by Company in writing in its sole discretion may agree to this EULA and use the Platform and Services. By accepting this EULA, you represent you are at least 18 years old, are located in the United States or in a jurisdiction authorized by Company in writing, and you have all requisite authority to enter into this agreement on behalf of yourself, or, if applicable, the legal entity you represent. All others are prohibited from agreeing to this EULA and using the Platform and/or Services.
(c) This EULA is a binding legal agreement between you and Company and governs in all respects your use of the Platform and any websites, Content (as defined below), services, software, and products made available to you by or through the use of the Platform (collectively, the “Services”), except with respect to any software or services made available to you by us pursuant to a separate written agreement, which shall be governed by that agreement. For purposes of this EULA, you understand and agree that Company may partner with third parties to provide some or all of the Platform and/or Services (hereinafter, the “Company Service Partners”). The Company Service Partners shall be third party beneficiaries of this EULA, with full power and authority to enforce all rights hereunder against you.
(d) This EULA can be accepted by you by either (i) clicking on an acceptance button with respect to the EULA, if one is provided by us, either as part of the registration process or in connection with the launch of the Platform; (ii) by consenting to be bound via the order form and/or commercial terms made available to you; or (ii) by actually using the Platform and/or Services, or a portion of same, in which case your usage shall be deemed an acceptance of this EULA commencing upon your first use of the Platform and/or Services or a portion thereof.
Section 2. Your Use of the Platform and Services
(b) Under no circumstances are you permitted to engage in any activity that disrupts or otherwise interferes with the proper function of the Platform and/or Services, as well as any servers, technology, equipment and or network infrastructure provide and/or accessible in connection with same.
(c) Under no circumstances are you allowed to (i) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code for the Platform, except as may permitted by applicable law; (ii) alter, obscure or remove any copyright or other proprietary notices on the Platform and/or the Services or any documentation related thereto; (iii) create derivative works from, adapt, translate, alter, or embed into any other service or product with or into the Platform and/or Services; and/or (iv) use separate components of the Platform on different computers.
(d) Any breach of your obligations under this EULA shall be solely your responsibility and under no circumstances shall Company or any Company Service Providers have any responsibility or liability to you or any third party as a result of your breach of your obligations hereunder.
Section 3. License to Platform and Services
(a) Subject at all times to the limitations, prohibitions and restrictions set forth herein and the payment of the Fees, as provided for in a separate order form or commercial terms which references this EULA (whether electronic or in paper format), Company hereby grants you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Platform and the Services. For clarity, the foregoing license is granted to you solely to enable you to use Platform and Services in a manner consistent with this EULA. Under no circumstances are you allowed to sell, trade or resell the Platform or Services in any way or for any purpose, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements.
(b) Under no circumstances may you assign or sublicense your rights to use the Platform and/or Services pursuant to this EULA or otherwise transfer, hypothecate, or grant a security interest in any of your rights granted pursuant to this EULA.
Section 4. Fees Applicable to the Use of the Platform and Services
The fees payable to Company by you for your use of the Platform and/or Services (the “Fees”) are set forth in the applicable order form or commercial terms (whether electronic or paper) which incorporates this EULA by reference. Client will be invoiced for the Fees as set forth in the applicable order form or commercial terms (whether electronic or paper). Payments are due upon receipt of invoice, unless an alternative date is set forth in the order form. No refunds will be given for use of the Platform and/or Services for partial months. Unless otherwise set forth in an applicable order form or commercial terms which incorporates this EULA by reference, you shall be responsible for the payment of the Fees during the Term (as defined below).
Section 5. Platform and Service Updates; Discontinuation and Suspension
(a) From time to time, Company may update, modify and otherwise change the Platform and/or the Services without notice to you and you agree to same. Such updates may improve, enhance and/or further develop the Platform and/or the Services, including updates for bug fixes, enhanced functions, new software modules and completely new versions. By agreeing to this EULA, you agree to receive such updates (and permit Company to deliver these updates) in connection with your use of the Platform and Services. Your continued use of the Platform and/or Services following any such updates, modifications, and/or changes constitutes your acceptance of same in all respects.
(b) At any time and without notice to you, Company may permanently or temporarily terminate or suspend the provision of the Platform and/or Services or any portion thereof to you or in general for any reason or no reason, in its sole discretion. In such an event, you understand and agree that you may be unable to access the Platform, the Services, any website created using the Platform, any Content, files and/or information, including your account information, that was previously accessible to you. You may terminate your use of the Platform and/or the Services as set forth in the applicable order form or commercial terms (whether electronic or paper).
Section 6. Content and Materials
(a) Any and all content and information provided to you from or through the Platform and/or Services, including without limitation, text, files, content, data, graphics, images, links, software, communications, messages or other materials and terms of expression (collectively, “Content”) is owned by the party from which such Content originated and such party remains solely responsible in all respect for such Content.
(b) All Content provided from or through the Platform and/or Services may be subject to intellectual property rights with respect thereto, which are owned by the source and/or provider of such Content or another third party which has authorized the provider of such Content to distribute such Content. Under no circumstances may you modify, distribute, sell, rent, lease, loan, or create derivative works based on this Content (either in whole or in part) unless the Content owner has provided you with specific written permission to do so in a separate written agreement. Upon termination of this EULA, all your rights to the Content provided from or through the Platform and/or Services shall terminate immediately and you shall have no further rights to use such Content for any purpose.
(c) Without the express written consent of the proper owner of any Content that is subject to a proprietary right, including without limitation reviews, copyrights and trademarks, you are prohibited from creating, posting, transmitting, uploading, displaying, or otherwise making use of such Content either through the Platform and/or Services or otherwise. You shall be solely liable for any damages arising out of any infringement of any proprietary right of a third party, and any other damages that result from Content that you upload, post, transmit, display or otherwise make available on or through the Platform and/or Services. In its sole and absolute discretion, Company may establish additional policies and requirements governing the posting and submission of Content by you on or through the Platform and/or Services by updating this EULA with such additional policies and/or requirements. You are responsible for ensuring that any Content that you upload, transmit, display, post, or otherwise make available on or through the Services is done in full compliance with any applicable third party proprietary right, including copyright and/or trademark right. You agree not to post any Content that (i) contains any viruses, trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines, (ii) unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene (including without limitation pornography), profane, hateful, racially, ethnically, or otherwise objectionable, including, without limitation, any material that supports or otherwise encourages wrongful conduct or that would constitute a criminal offense; (iii) is spam, machine- or randomly-generated, and/or contains unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts; and/or (iv) gives rise to civil liability, bring disrepute onto Company or the Company Service Partners or otherwise violates any applicable state, national or international law.
(d) The Company reserves the right to remove any of your Content that unduly burdens our servers or those of our Company Service Partners. The Platform and Services shall not be used as an external storage mechanism or to enable the download or display of large Content files. The Company generally offers unlimited traffic and storage, but the Company reserves the right to reduce such rights if your use is beyond a reasonable threshold, as determined by the Company in its sole discretion.
Section 7. Ownership and Intellectual Property Rights
(a) You acknowledge and agree you have no rights to use any of Company’s and/or the Company Service Partners’ trademarks, service marks, trade names, logos, domain names, and other distinctive brand features. Company and/or the Company Service Partners own all legal right, title and interest in and to the Platform and the Services, including any intellectual property rights with respect to same (whether those rights are registered or not, and regardless of the jurisdiction in which such rights may exist). You acknowledge and agree to same. The foregoing statement of ownership is subject to all applicable open source and/or third-party licenses with respect to the Platform and the Services that Company is subject to or that are otherwise applicable to Company.
(b) You hereby grant Company and/or the Company Service Partners an irrevocable, perpetual, worldwide license to use, broadcast, reproduce, recreate, store, distribute, have distributed, edit, market, publicly and privately display, communicate, publicly and privately perform, transmit, have transmitted, create derivative works based upon, and promote any Content that you upload, post, transmit, display or otherwise make available on or through the Platform and/or the Services, for purposes of performing its obligations hereunder, as well as editorial, commercial, promotional and all other purposes.
(c) Subject at all times to the license set forth in Section 7(b) above, Company acknowledges and agrees that it obtains no right, title or interest in or to any Content uploaded, posted, transmitted, displayed or otherwise made available by you on or through the Platform and/or the Services, including any intellectual property rights therein. Company shall have no responsibility to protect and/or enforce any such intellectual property rights in your Content, for which you remain solely responsible.
Section 8. Termination
Unless otherwise set forth in an order form or commercial terms which incorporates this EULA by reference, the term of use for the Platform and the Services pursuant to this EULA shall be for a period of one (1) month from the date you agree to this EULA (the “Initial Term”). This EULA shall renew, and the Platform and Services shall continue to be made available to you thereafter for additional periods of one (1) calendar month after the expiration of the Initial Term (each, a “Renewal Term” and together with the Initial Term, the “Term”). You may terminate this EULA and your access to the Platform and Services upon fourteen (14) days prior written Notice to Company at least fourteen (14) days prior to the end of the then-current Term. We may immediately terminate this EULA if you materially breach any provision hereof. Notwithstanding the foregoing, Company reserves the right to suspend and/or terminate its legal agreement with you pursuant to this EULA and all access to the Platform and Services at any time and for any reason or no reason without restriction. Until a termination, this EULA will continue to apply to you and your use of the Platform and/or Services. Upon the termination of this EULA, all of the legal rights, obligations and liabilities that you and Company have benefited from, been subject to (or which have accrued over time during the period in which the EULA has been in force) or which are expressly continued indefinitely by the terms hereof, shall continue in full force and effect without termination, including as set forth in Section 19(c) hereof.
Section 9. DISCLAIMER OF WARRANTIES
(a) COMPANY IS PROVIDING THE PLATFORM AND SERVICES TO YOU SOLELY ON AN “AS IS, AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR THE COMPANY SERVICE PARTNERS REPRESENT OR WARRANT TO YOU THAT (i) YOUR USE OF THE PLATFORM AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (ii); YOUR USE OF THE PLATFORM AND/OR SERVICES WILL MEET YOUR REQUIREMENTS (iii) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY PLATFORM AND/OR SERVICES WILL BE CORRECTED; AND (iv) ANY CONTENT AND/OR INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE PLATFORM AND/OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY CONTENT SOURCED FROM THIRD PARTIES, INCLUDING COMPANY SERVICE PARTNERS, WILL BE ACCURATE OR RELIABLE. COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PLATFORM AND SERVICES, ANY WEBSITES CREATED THROUGH THE USE OF THE PLATFORM AND/OR SERVICES, AND/OR ANY CONTENT DELIVERED, SENT, ACCESSIBLE, OR RECEIVED BY OR THROUGH THE PLATFORM AND THE SERVICES OFFERED BY COMPANY AND/OR ANY COMPANY SERVICE PARTNER, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. COMPANY DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, AVAILABILITY, RELIABILITY OR THE RESULTS OF THE USE OF THE PLATFORM AND/OR THE SERVICES, OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION ANY COMPANY SERVICE PARTNER SERVICES AND/OR COMPANY SERVICE PARTNER CONTENT, THE WEBSITES CREATED THROUGH THE USE OF THE PLATFORM AND SERVICES, OR THE INFORMATION AND CONTENT DELIVERED, SENT, OR RECEIVED BY OR THROUGH THE PLATFORM AND/OR SERVICES IN TERMS OF THE ACCURACY, VALIDITY, QUALITY, RELIABILITY, COMPLETENESS, STABILITY, CURRENTNESS, NON-INFRINGEMENT, OR OTHERWISE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PLATFORM AND SERVICES, INCLUDING ANY WEBSITES CREATED IN CONNECTION WITH THE USE THEREOF, IS ASSUMED AND BORNE BY YOU. SOLELY TO THE EXTENT THE ABOVE LIMITATIONS ARE UNLAWFUL IN YOUR JURISDICTION, THEN OUR LIABILITY TO YOU WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(b) ANY CONTENT DOWNLOADED OR OTHERWISE ACCESSED THROUGH THE USE OF THE PLATFORM AND/OR SERVICES IS DONE AT YOUR OWN RISK AT YOUR SOLE DISCRETION. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGES ARISING THEREFROM, INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING FROM THIRD PARTY CLAIMS RELATED TO SUCH USE AND DAMAGES TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT, INCLUDING THE PLATFORM AND/OR ANY PORTION OF THE SERVICES, INCLUDING ANY WEBSITE CREATED FROM THE USE THEREOF.
Section 10. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER COMPANY NOR ANY COMPANY SERVICE PARTNER WILL, IN ANY EVENT, BE LIABLE TO ANY PARTY, INCLUDING YOU FOR: (i) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE PLATFORM AND/OR SERVICES PROVIDED BY COMPANY OR ANY COMPANY SERVICE PARTNER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; (ii) THE TRANSMISSION OR DELIVERY OF ALL OR ANY PART OF ANY WEBSITE CREATED FROM USE OF THE PLATFORM AND/OR SERVICES, INFORMATION OR CONTENT AVAILABLE FROM OR THROUGH THE PLATFORM OR SERVICES, ANY DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR FOR THE RESULTS OBTAINED FROM THE USE THEREOF, AND/OR INFORMATION AND/OR THE CONTENT ACCESSIBLE FROM THE USE THEREOF; (iii) ANY CLAIM ATTRIBUTABLE TO ERRORS, DELAYS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY WEBSITE CREATED USING THE PLATFORM AND/OR SERVICES, INFORMATION OR CONTENT, INCLUDING ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY OF THE FOREGOING; (iv) ANY CHANGES WHICH COMPANY OR ANY COMPANY SERVICE PARTNER MAY MAKE TO THE PLATFORM AND/OR SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE PLATFORM AND/OR SERVICES (OR ANY PART THEREOF); (v) ANY SOFTWARE FORMING A PART OF THE PLATFORM, THE SERVICES AND/OR CONTENT INFECTING OR CONTAMINATING A USER’S SYSTEM OR INFORMATION OR CONTENT; (vi) YOUR FAILURE TO PROVIDE COMPANY WITH ACCURATE ACCOUNT INFORMATION OR YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, AS APPLICABLE. THE FOREGOING LIMITATIONS ON THE LIABILITY OF COMPANY AND ANY COMPANY SERVICE PARTNER TO YOU SHALL APPLY WHETHER OR NOT COMPANY OR APPLICABLE COMPANY SERVICE PROVIDER HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. SINCE SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, COMPANY’S AND COMPANY SERVICE PARTNERS’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHICH SHALL NOT IN ANY CIRCUMSTANCES EXCEED, (i) IN THE CASE OF THE COMPANY, THE TOTAL FEES PAID BY YOU TO COMPANY IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM, AND (ii) IN THE CASE OF THE COMPANY SERVICE PARTNERS, THE TOTAL FEES PAID BY COMPANY TO SUCH COMPANY SERVICE PROVIDER IN CONNECTION WITH YOUR USE OF THE PLATFORM AND/OR SERVICES IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
Section 11. Third Party Content and Services
(a) Portions of the Content and the Services may link to or be provided from a third party, including without limitation, a Company Service Partner, including without limitation third party databases, directories, applications, websites, software, programs, services, servers, networks, and systems (collectively, “Third Party Services”). These Third Party Services are provided to you subject to your adherence to the Third Party Services Terms available at Exhibit A attached hereto and you hereby agree to be legally bound by same. In no way does Company manage or control any of the Third Party Services or Content. Company shall have no responsibility with respect to any Third Party Services and/or Content, including without limitation, the accuracy, availability, truthfulness, or functionality of any such Third Party Services or Content. Company does not endorse or warrant any such Third Party Services and/or Content or any product or service that may be available through such Third Party Service and/or Content in any way by virtue of making it available to you.
(b) Some or all of the Services and Content provided by Company pursuant to this EULA may allow for the sending, delivering or receiving of information between you and other third parties, including Internet end users, which may be processed, transferred, relayed or carried through networks, systems, servers, websites or applications (e.g. telephone and cellular networks, e-mail servers) that are not owned or controlled by Company (“Third Party Networks”). Under no circumstances shall Company in any way be responsible for the performance, functionality, quality, availability, or reliability of any of the Third Party Networks or any of the information processed, transfer, sent, delivered, relayed, carried or received through any such Third Party Networks. Company makes no guarantee or warranty that the information processed, transferred, sent, relayed, carried or delivered through Third Party Networks will reach its intended destination, or that the details of the recipient or sender are correct or accurate.
Section 12. Trademark and Copyright Claims Policy
(a) Company will (i) respond to all notices of alleged infringement of a third party’s copyright and/or trademark rights in accordance with applicable intellectual property law, including, in the United States, the Digital Millennium Copyright Act, and (ii) take action against Company users found, including you, to be in violation of a third party’s intellectual property rights. To the extent we remove your Content as a result of the complaints of another pursuant to this section, we may notify you of this fact and will provide you with the email address of the complaining party so that you may attempt to resolve the issue.
(b) IF YOU BELIEVE YOUR COPYRIGHTED MATERIAL HAS BEEN INFRINGED UPON IN OR THROUGH THE PLATFORM AND/OR SERVICES, YOU SHOULD NOTIFY THE COMPANY AS SET FORTH IN THE ORDER FORM OR COMMERCIAL TERMS. Please advised that under 17 U.S.C. 512(f), knowingly making a material misrepresentation that online material or activity is infringing or that material or activity was removed or disabled by mistake or misidentification, you may be subject to heavy civil penalties. These penalties include monetary damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, including a Company Service Partner, who is injured by your misrepresentation.
(c) Any copyright infringement claims notice MUST include at least (1) proper identification of the allegedly infringing material or to be the subject of the allegedly infringing activity along with a demand that such allegedly infringing material be removed or access disabled, along with sufficient information for the Company to adequately locate the material; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (4) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (5) information reasonably sufficient to permit Company to contact you, such as address, phone number, and, if available, an email address at which you may be contacted; and (6) a physical or electronic signature of a person authorized to act on behalf of the owner of the allegedly infringed work (the “Notice Requirements”). If the Notice Requirements are not met, the Company may disregard the notice pursuant to 17 U.S.C. 512(c)(3).
Section 13. EULA Amendments and Modifications.
Company reserves the right, in its sole discretion, to amend, modify and otherwise change the terms of this EULA at any time. Any such changes to this EULA will be posted at www.monosolutions.com/user-terms. In the event there are material changes to the EULA, Company will provide notice to you either by sending you notice either via email or mail, in its sole discretion, or by posting a notice of such changes in a prominent position within the Services accessed by you. Any use of the Platform and/or Services by you after the date the EULA is changed shall constitute your acceptance of the EULA, as modified for all purposes.
Section 14. Indemnification.
As additional consideration for your use of the Platform and/or Services, you agree to fully indemnify and hold harmless Company and its officers, employees, agents, affiliates, partners, licensors, parents, subsidiaries, and Company Service Partners from and against any demand or claim, including reasonable attorneys’ fees, made by any third party due to or arising out of (i) your use of the Platform and Services, (ii) any violation by you of this EULA, (iii) any Content you submit, post, transmit or otherwise make available through the Platform and/or Services, including any websites created using the Platform and Services, (iv) your use of any Content provided to you by or through the use of the Platform and/or Services, and/or any (v) violation by you of any rights of another.
Section 15. Privacy and Security
(b) You acknowledge that, as with most Internet offerings, there are certain inherent risks associated with the use of our Platform and Services, including, (1) damage to any data or files stored on your computer or those of your website end users, (2) the potential that others will have access to and be able to view your personal data, including your IP address, especially to the extent you make them publicly available, (3) potential damage to your computer systems, and (4) the potential that Content you share through the Platform and/or Services, including on any websites created using the Platform and/or Services will be redistributed and/or used without your permission or knowledge.
(c) You further acknowledge that you are aware that (1) data and information on the Platform and/or Services may be subject to forgery, tampering, sniffing, spamming, eavesdropping, spoofing, password cracking, harassment, fraud, electronic trespassing, hacking, nuking, system contamination including viruses, worms and Trojan horses causing unauthorized, damaging and/or harmful access to, or retrieval of, information and data on your computer systems; (2) the Platform and/or Services will have security and privacy limitations that may not be acceptable to you, including without limitation the limitation of security, privacy and authentication measures and features; (3) the privacy and security features available through the Platform and the Services are provided to you solely as a convenience and may not operate according to their description or may not operate at all; (4) information, data or messages may not reach their destination or may reach an erroneous address or recipient; and (5) by activating certain features, you may provide third parties, including Company Service Partners, with certain limited remote access to certain files on your computer systems. Activating these features increases the risk that third parties will be able to tamper with your computer systems.
Section 16. Confidentiality.
You will not use any Confidential Information (as defined below) of the Company or any of the Company Service Partners for your own or any third party benefit or for any purpose other than performing your obligations under this EULA. You will use the same degree of care that you use to protect your own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information. “Confidential Information” means any and all information disclosed by Company, directly or indirectly, in writing, orally, electronically, or in any other form, in connection with your use of the Platform and the Services made available to you hereby. If the disclosure of Confidential Information is required by law, you shall promptly notify the Company in advance of such required disclosure if lawfully able to do so and use its best efforts to minimize the scope of such disclosure.
Section 17. Company Support
Except as set forth in the order form and/or commercial terms, (i) the Company does not provide any assistance to its users, including you, (ii) your use of the Platform and Services is at your sole complete risk, and (iii) Company does not undertake nor is it obligated to provide you with any updates, upgrades, bug fixes, error corrections and/or enhancements to all or any portion of the Platform and/or Services.
Section 18. Rights and Remedies
(a) In addition to any other legal remedies that may be available to Company, we may seek and obtain injunctive relief against You in the event of a breach of this EULA and/or the disclosure or misuse or threatened disclosure or misuse of any of the proprietary and/or Confidential Information of Company contained in or accessible through use of the Platform and/or Services, the disclosure of which would give rise to irreparable injury to Company and/or its Company Service Providers, which could not adequately be compensated in damages.
(b) This EULA is not intended to confer, nor does it confer, any rights or remedies upon any person other than Company and its Company Service Providers, that are intended third party beneficiaries hereof.
Section 19. General Terms.
(a) Construction. If any part of this EULA is held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties hereto, and the remaining portions shall remain in full force and effect.
(b) Notices. Any and all legally required communications, including notices, disclosures, agreements, or other information required in connection with any of the Platform and/or Services may be sent to you electronically, including via (i) e-mail to an e-mail address provided by you, and/or (ii) by pop up notice, system notice, or any other form of notice, on any portion of the Platform and/or Services and/or by (iii) posting the notices on a main page or other page of the relevant Service, from Company and you consent to the receipt of same (hereafter, “Notices”). Company may provide Notices to You regarding the Platform and Services, including without limitation any notices with respect to violations of this EULA, any updates to the Platform Services or the EULA, or any portions thereof, and promotional information. Regardless of whether you read a Notice when you receive it, the delivery of any Notice from Company is effective when sent by Company.
(c) Survival. Sections 2, 4 through 11, 14 through 16, and 18 through 19 shall survive the termination of this EULA for any reason and the termination of your use of all or a portion of the Platform and/or Services.
(d) Applicable Law. This EULA, including any amendments hereto, shall be governed by and construed in accordance with the laws of the State of Colorado, excluding its conflicts-of-law rules. Notwithstanding the foregoing, your use of all or a portion of the Services may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Company or relating in any way to your use of the Company Services resides in the courts of the State of Colorado. You further agree and expressly consent to the exercise of personal jurisdiction in the courts of Colorado in connection with any such dispute, including any claim involving Company, the Company Service Partners, or their respective affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. The UN Convention on Contracts for the International Sale of Goods shall not apply to this EULA.
(e) Assignment. Company reserves the right, in its sole and absolute discretion, to transfer, assign, sublicense or pledge in any manner whatsoever, any of its rights and obligations under this EULA to any third party whatsoever, without your consent and without notice to you. You shall not transfer, assign, delegate, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement. Any purported assignment, sale, transfer, delegation or other disposition by you, except as permitted herein, will be null and void.
(f) Recovery of Fees. If you bring any legal action, including, without limitation, an action for arbitration or equitable relief, against the Company or any Company Service Partner relating to this EULA or the breach or alleged breach hereof, and the Company or applicable Company Service Partner is the prevailing party in any final judgment or arbitration award, or you voluntarily dismiss the action, the Company and/or applicable Company Service Partner will be entitled to reimbursement from you for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
(g) Force Majeure. Company will not be deemed in default of this EULA to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government (including any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree), acts of war or terrorism, DDOS attacks, shortage of materials, power or supplies, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, failure of transportation, power or communications, including Internet access, or of suppliers of goods or services, or any other cause beyond the reasonable control of Company or any Company Service Partner.
(h) Severability. If the application of any provision of this EULA to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this EULA will not in any way be affected or impaired thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
(i) Independent Contractors. The relationship of Company and you established by this EULA is that of independent contractors, and nothing contained in this EULA will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties.
(j) Export Control. You agree to abide by U.S. and other applicable export control laws and not to export, re-export or otherwise transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination prohibited under such laws or to any person to whom exports, re-exports or transfers are prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to Company any Content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
(k) Headings. The headings and captions used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
(l) Construction. The construction of this EULA will not take into consideration the party who drafted or whose representative drafted any portion of it, and no canon of construction will be applied that resolves ambiguities against the drafter of a document.
(m) Entire Agreement. The provisions of this EULA, including Exhibit A attached hereto which are incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof, and this EULA supersedes all prior agreements or representations, oral or written, regarding such subject matter.
Exhibit A: Third Party Services and Applicable Terms
|Description of Third Party Service||Third Party Service Terms||Location|
|Google - Web analytics and reporting.||http://www.google.com/analytics/||EU (Ireland)|
|Google Maps - Google Maps for website map implementation||Google Maps Terms of Service: |
Google Privacy Protection
|Touch Local - Domain registration and maintenance||Touch Local |
Acceptable Use http://www.register.com/policy/acceptable_use_poli...
Private Domain Registration
|Open SRS - Domain registration and maintenance.||End User terms apply as in Appendix B on Page 32 of the Master Service Agreement.|
|Open SRS - Email Services||End User terms apply as in Appendix B on Page 32 of the Master Service Agreement.|
|Let's Encrypt SSL Certificates|
The Policy and Legal
Repository for Let’s Encrypt SSL Certificates can be found here:
|SendGrid - Newsletter Emails.||Terms of service: https://sendgrid.com/policies/tos/|
Email Policy: https://sendgrid.com/policies/email/
|UK + US|
|AWS||https://aws.amazon.com/service-terms/||US + EU + Canada|
|Amazon Simple Notification Service (SNS), messaging and mobile notifications service.||https://aws.amazon.com/legal/||US + EU (Ireland) + Canada|
|Pliva, Cloud communications platform for building SMS, Voice & Messaging applications||https://www.plivo.com/terms/||US + EU (Ireland)|
|Twilio, Cloud communications platform for building SMS, Voice & Messaging applications||https://www.twilio.com/legal/tos||US + EU (Ireland)|