Last Modified: November 3rd 2021
Welcome to the website and online services of Mnemonic, Inc. (“Mnemonic”, “we”, “our” or “us”). This page explains the terms and conditions (these “Terms”) by which you may access and use our online services, including: (i) https://mnemonichq.com and any other website where these Terms are posted (collectively, the “Site”); the various tools and documentation, such as application programming interfaces (“APIs”), made available on the Site or otherwise by us (collectively, the “Tools”); (iii) the data and information provided to you by us (including, without limitation, through our Tools); and (iv) any other technology, platform, dashboard or software of ours (or our licensors) provided by us to you that provides or allows you to access any of the foregoing ((i) through (iv) collectively, our “Service”). When you access or use our Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms whether or not you are a registered user of our Service. You also acknowledge that you have read and understood how your personal information will be collected, used, and shared, as set forth in our Privacy Notice available at https://mnemonichq.com/privacy (“Privacy Notice”). We reserve the right to modify these Terms and will provide notice of these changes as described below. These Terms apply to all visitors, users, and others who access our Service (“Users”).
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT IN SECTION 13.2 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 13.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS IN SECTIONS 13.1 AND 13.2 OR UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 13.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
Please note that if you are an individual and you access or use our Service on behalf of a company or other entity, such as your employer (together with its affiliates, an “Organization”), then: (a) these Terms are an agreement between us and you and us and that Organization; (b) you represent and warrant that you have the authority to bind that Organization to these Terms (and if you do not have that authority, you may not access or use our Service); (c) your acceptance of these Terms will bind such Organization to these Terms; (d) your individual right to access and use our Service may be suspended or terminated (and ownership and administration of your Service Account may be transferred) if you cease to be associated with, or cease to use an email address associated with or provisioned by, that Organization; (e) we may disclose information regarding you and your use of our Service with such Organization; and (f) the terms “you” and “your”, as used in these Terms, refer to both you and such Organization. If you sign up for our Service using an email address associated with or provisioned by an Organization, or if an Organization pays fees due in connection with your access to or use of our Service (or reimburses you for payment of such fees), or otherwise, then, we may deem you to be accessing and using our Service on behalf of that Organization in our sole discretion.
You may use our Service only if you can form a legally binding contract with us (and on behalf of your Organization, as applicable), and only in compliance with these Terms and all applicable local, state, national and international laws, rules and regulations. To use our Service, you must be at least thirteen (13) years of age. You represent and warrant that you meet the applicable age requirements and are competent to agree to these Terms. If you are a minor (which is under the age of eighteen (18) in most states), you may use our Service only with the involvement of a parent or legal guardian and their consent and agreement to these Terms. If you are under 18, you represent and warrant that you have your parent or guardian’s permission to use our Service and that your parent or guardian is agreeing to these Terms. If you are a parent or legal guardian of a User under the age of 18, by allowing your child to use our Service, you are subject to these Terms and responsible for your child’s activity on our Service. Our Service is not available to any Users we previously removed from our Service.
1.2 Service Accounts.
Your account on our Service (your “Service Account”) gives you access to the Service and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of Service Accounts for different types of users. You acknowledge that you do not own your Service Account.
You may not use another User’s Service Account without such User’s permission. You are solely and fully responsible and liable for the activity that occurs on your Service Account, including the acts or omissions of each authorized user on your account or any other person accessing or using the Service through or in connection with your account. When creating your Service Account, you must provide accurate and complete information, and you must keep your Service Account password(s) strong and secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify us immediately of any breach of security or unauthorized use of your Service Account. Any individual with administrator-level access to your Service Account can modify your Service Account settings, access and billing information. We will not be liable for any losses caused by any unauthorized use of your Service Account, or for any changes to your Service Account, including your ability to access your Service Account or Your Content (defined below), made by any individual with administrator-level access to your Service Account.
You may control certain aspects of your Service Account profile and how you interact with our Service by changing the settings in your settings page. By providing us with your email address, you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other marketing or advertising messages, such as changes to features of our Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by contacting our Service support team at email@example.com or by clicking the unsubscribe link within each marketing or advertising message. Opting out will not prevent you from receiving Service-related notices.
1.3 Changes, Suspension, and Termination.
You may cancel your Service Account at any time. We may change our Service, stop providing our Service or features of our Service to you or to our users generally, or create usage limits for our Service. We may permanently or temporarily terminate or suspend your access to our Service without notice and liability, without cause or for any reason, including if in our sole determination you violate any provision of these Terms. Upon termination, you continue to be bound by these Terms.
1.4 Your Interaction with Other Users.
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2.1 Access to our Service.
Subject to your compliance with these Terms and during the applicable Subscription Term, you may access and use our Service for your own business purposes or personal use, as applicable, except as may be limited by your Organization as described above, all in accordance with these Terms and associated documentation we provide you.
2.2 Software License.
To the extent you receive any software from us in connection with our Service, subject to your compliance with these Terms, we grant to you a non-exclusive, revocable, non-transferable, non-sublicensable right and limited license to access and use the Service and to integrate the APIs and portions of Tools into websites and applications that you operate, in each case exercisable by and through the authorized users as set forth on your ordering documentation, solely as reasonably necessary for your Internal Use of our Service in accordance with these Terms.
As used herein, “Internal Use” means your right to access and use our Service in order to perform its intended and customary functions, in accordance with its applicable documentation, solely in connection with your operations and not for use to provide access to the Service to unauthorized users, and, for clarity, Internal Use excludes any right to distribute, license, sublicense, sell or otherwise transfer or make available the Service to any third party (excluding to your authorized users as permitted herein). You may not download, copy, install, or use the Tools or Service for any other purpose without Company’s prior written consent. No rights or licenses are granted except as expressly set forth in these Terms. The software contained in the Tools and Service is licensed to you, not sold. Some portions of the Tools or Service may be subject to an open-source copyright license agreement, and use of Tools or Service portions will also be governed by and subject to the open-source license terms provided with the Tools or Service. You may not use the APIs for any purpose, function, or feature not described in the API documentation, support pages and other pages on our Site (“Documentation”). We may update the API and Documentation from time to time, and may add or remove functionality, in each case in our sole discretion.
2.3 Restrictions and Acceptable Use.
Except to the extent a restriction is prohibited by law, you agree not to do, and not to assist, permit or enable any third party to do, any of the following:
(a) use our Service for any purpose other than as expressly set forth in Section 2.2 above;
(b) disassemble, reverse engineer, decode or decompile any part of our Service; use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record our Service without our permission; copy, rent, lease, sell, loan, transfer, assign, sublicense, resell, distribute, modify, alter or create derivative works of any part of our Service or any of our Intellectual Property (defined below);
(c) use our Service in any manner that impacts (i) the stability of our servers, (ii) the operation or performance of our Service or any User’s use of our Service, or (iii) the behavior of other applications using our Service;
(d) use our Service in any manner or for any purpose that (i) violates or promotes the violation of any applicable law, regulation, legal requirement, contractual obligation or right of any person including, but not limited to, intellectual property rights, rights of privacy, or rights of personality, (ii) is fraudulent, false, deceptive or defamatory, (iii) promotes hatred, violence or harm against any individual or group, or (iv) otherwise may be harmful or objectionable (in our sole discretion) to us, our providers, our suppliers, our Users, or any other third party;
(e) use or display our Service in competition with us, to develop competing products or services, for benchmarking or competitive analysis of our Service, or otherwise to our detriment or disadvantage;
(f) attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running our Service;
(g) transmit viruses, worms or other software agents through our Service;
(h) impersonate another person or misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use our Service for any invasive or fraudulent purpose;
(i) share passwords or authentication credentials for our Service, or otherwise circumvent the measures we may use to prevent or restrict access to our Service or enforce limitations on use of our Service; or
(j) identify or refer to us or our Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you (or a third party) and us, other than as expressly set forth herein.
2.4 Data License.
Subject to your compliance with these Terms, we hereby grant to you the following limited license to the data you obtain from our Service (the “Data Products”): a term-limited, non-sublicensable, non-transferable, revocable right and license to access, use, copy and create derivative works of the Data Products for your business purposes. All Data Products are licensed not sold.
Except as otherwise agreed by us in writing, you agree that you will cease use of and delete each Data Product (and all copies thereof) in your possession upon termination or expiration of your access to our Service.
You agree that you will not, and will not permit any third party to use the Data Products (in whole or in part, alone or combined with other data) to promote any illegal product, or engage in any illegal purpose;
Without limiting the foregoing, you agree to remain responsible to us for any third-party service provider to which you provide access to the Data Products (in whole or in part) on your behalf, including any providers you use to decorate any data included in the Data Products you license hereunder.
You shall not distribute or resell any Data Products.
2.5 Third Party Data.
We may make available on or in connection with the Service certain data, content, and information provided by third parties (“Third-Party Data”). All or some portions of Third-Party Data may be subject to separate third-party license agreements, including but not limited to open source license agreements. Notwithstanding anything to the contrary in these Terms, such third-party license agreements govern your use of such Third-Party Data and control and supersede these Terms to the extent of any conflict herewith, and you are responsible for compliance with all third-party license agreements or use restrictions applicable to Third-Party Data. We or such third parties may modify such third-party license agreements and use restrictions from time to time and it is your responsibility to check for updates to such license agreements or use restrictions. If a modification of any third-party license agreement, or use restrictions is unacceptable, you may cancel your access upon written notice to us or discontinue use of the Service, as applicable. Continued use of the Service will be deemed acceptance of any such modifications.
In connection with any use of our Service or Data Products on or in support of your websites, products or services, you must provide attribution to us and our Service in accordance with our policies available at https://mnemonichq.com/badge, unless otherwise agreed by us in writing.
As between us and you, you (or your licensors) will own any and all text, images, profile information, data, content, works of authorship, or other information in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from you (or on your behalf) by or through our Service (“Your Content”). For an Organizational account, we may assume, in our sole discretion, that all of Your Content belongs to that Organization.
WE CLAIM NO OWNERSHIP RIGHTS OVER YOUR CONTENT. However, you understand that certain portions of our Service may allow other Users to view, edit, share, and/or otherwise interact with Your Content. By providing or sharing Your Content through our Service, you agree to allow others to view, edit, share, and/or interact with Your Content in accordance with your settings and these Terms. We have the right (but not the obligation) in our sole discretion to remove any of Your Content that is shared via our Service. You hereby grant each User a non-exclusive license to access Your Content through our Service, and to use, reproduce, distribute, display and perform Your Content, which you make available to such User through our Service.
You (on behalf of yourself and your licensors) further grant, and you represent and warrant that you have all rights necessary to grant, to us an irrevocable, perpetual, transferable, sublicensable (through multiple tiers), fully paid, royalty-free, and worldwide right and license to use, copy, store, reproduce, modify, distribute and publicly display Your Content: (a) to maintain and provide our Service; (b) solely in de-identified form, to improve our products and services and for our other business purposes, such as data analysis, customer research, developing new products or features, and identifying usage trends (and we will own such de-identified data); and (c) to perform such other actions as described in our Privacy Notice or as authorized by you in connection with your use of our Service. In connection with Your Content, you affirm, represent and warrant the following:
WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY OF YOUR CONTENT THAT YOU OR ANY OTHER USER OR THIRD-PARTY POSTS, SENDS, OR OTHERWISE MAKES AVAILABLE OVER OUR SERVICE. YOU SHALL BE SOLELY RESPONSIBLE FOR YOUR CONTENT AND THE CONSEQUENCES OF POSTING, PUBLISHING IT, SHARING IT, OR OTHERWISE MAKING IT AVAILABLE ON OUR SERVICE, AND YOU AGREE THAT WE ARE ONLY ACTING AS A PASSIVE CONDUIT FOR YOUR ONLINE DISTRIBUTION AND PUBLICATION OF YOUR CONTENT. YOU UNDERSTAND AND AGREE THAT ON OUR SERVICE YOU MAY BE EXPOSED TO CONTENT THAT IS INACCURATE, OBJECTIONABLE, INAPPROPRIATE FOR CHILDREN, OR OTHERWISE UNSUITED TO YOUR PURPOSE, AND YOU AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DAMAGES YOU ALLEGE TO INCUR AS A RESULT OF OR RELATING TO ANY CONTENT ACCESSED ON OR THROUGH OUR SERVICE.
You acknowledge and agree that our Service, and all materials and content displayed or made available on our Service, other than Your Content, and all software, algorithms, code, technology and intellectual property underlying and included in or with our Service, and all intellectual property rights therein and thereto throughout the world (collectively and individually, our “Intellectual Property”), are our (or our licensors’ as applicable) sole and exclusive property. We solely and exclusively own and will own all rights, title, and interest in and to the Service, and all patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks, service marks, logos and designs, trade secrets, and all other intellectual property embodied by, or contained in the API, Tools, Site, and Service, and copies thereof. The technology underlying the Service and Tools is protected by copyright, trade secret, patent, and other intellectual property laws. All rights not expressly granted to you in these Terms are reserved by us. Except as explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any intellectual property rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of our Intellectual Property.
You may choose to, or we may invite you to submit, comments, feedback or ideas about our Service, including without limitation about how to improve our Service or our products (“Feedback”). By submitting any Feedback, you agree that we will own such Feedback, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.As part of your use and interaction with our Service, we will collect data, metadata, content and information, including “exhaust data” (“User and System Data”). You hereby grant to us, and represent and warrant that you have all rights necessary to grant to us, a perpetual, irrevocable, non-exclusive, sublicensable, transferable and royalty-free right and license to collect, use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and to modify and make derivative works of any and all User and System Data to improve and develop our products and services and for our other business purposes (and any and all such derived data is deemed part of our Intellectual Property).
We care about your privacy. By using our Service you acknowledge that we may collect, use, and disclose your personally identifiable information and aggregate and/or anonymized data as set forth in our Privacy Notice, available at https://mnemonichq.com/privacy, and acknowledge that you may have your personal information collected, used, transferred to and processed in the United States.
We have implemented commercially reasonable technical and organizational measures designed to secure your data and information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your data for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you provide your data at your own risk.
5.3 Authentication Keys.
You: (a) are responsible for protecting all authentication key(s) for the APIs; (b) shall not disclose the authentication key(s) to any third party; (c) shall not use the authentication key(s) for any purpose other than as necessary to exercise rights granted under these Terms; and (d) are responsible for all activity that occurs with the authentication key(s). You shall notify us promptly in the event you learn of any unauthorized access to any authentication key(s).
6.1 How We Bill for Our Service.
Certain aspects of our Service may be provided for free, while certain other aspects of our Service or products available on our website may be provided for a fee or other charge. If you elect to use paid aspects of our Service or make a purchase on our website, you agree to our payment terms set forth herein and on our website, as we may update them from time to time. We may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in our sole discretion.
6.2 Payment Information; Payment Method; Taxes.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with our Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method (“Payment Method”) used in connection with a purchase or transaction or other monetary transaction interaction with our Service at the prices in effect when such charges are incurred. You must provide us with a current, valid, accepted Payment Method. When you initiate a purchase transaction, you authorize us to provide your payment information to third parties so we can complete your transaction and to charge your Payment Method, in United States dollars, for the type of transaction you have selected (plus any applicable taxes and other charges) and any applicable recurring charges as described below. All payments for transactions are non-refundable and non-transferable except as expressly provided in these Terms. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
You agree to defend, indemnify and hold us and our affiliates, agents, suppliers or licensors (and our and their employees, contractors, agents, officers and directors) harmless 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) your access to or use of our Service; (b) your violation of any aspect of these Terms, including without limitation your breach of any of your representations and warranties; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) Your Content, including without limitation any misleading, false, or inaccurate information in Your Content; (f) your willful misconduct; or (g) any third party’s access to or use of our Service with your username(s), password(s) or other security code(s).
OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR USE OF OUR SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE, OUR SUBSIDIARIES, OUR AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT ANY CONTENT ON OUR SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT OUR SERVICE WILL MEET YOUR REQUIREMENTS; THAT OUR SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT OUR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF OUR SERVICE OR ANY DOWNLOAD OF CONTENT THROUGH THE USE OF OUR SERVICE. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.THE CONTENT PROVIDED THROUGH OR IN CONNECTION WITH OUR SERVICE IS DESIGNED TO PROVIDE PRACTICAL AND USEFUL INFORMATION ON THE SUBJECT MATTER COVERED. WHILE SUCH CONTENT MAY CONCERN ISSUES RELATED TO PROFESSIONAL SERVICES, SUCH CONTENT IS NOT PROFESSIONAL SERVICES ADVICE. YOU SHOULD NOT ACT OR REFRAIN FROM ACTING ON THE BASIS OF ANY CONTENT INCLUDED ON THIS SITE OR IN CONNECTION WITH OUR SERVICE WITHOUT SEEKING THE ADVICE OF A COMPETENT PROFESSIONAL IN THE APPLICABLE SUBJECT MATTER. WE EXPRESSLY DISCLAIM ALL LIABILITY IN RESPECT OF ACTIONS TAKEN OR NOT TAKEN BASED ON ANY CONTENT OF OR IN CONNECTION WITH OUR SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH OUR SERVICE; AND/OR (G) YOUR DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO US HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.1 Confidential Information.
From time to time, either party to these Terms (the "Disclosing Party") may disclose or make available to the other (the "Receiving Party") non-public, proprietary, or confidential information of the Disclosing Party (“Confidential Information”). Confidential Information includes any information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology and marketing information. Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of the Receiving Party's breach of this confidentiality section; (ii) is or becomes available to the Receiving Party, without restriction on disclosure, on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in the Receiving Party's possession, without restriction on disclosure, prior to the Disclosing Party's disclosure thereof; or (iv) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information.
10.2 Protection and Use of Confidential Information.
The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially-reasonable degree of care; (ii) only use the Disclosing Party's Confidential Information, and only permit it to be accessed or used, for the purpose of exercising its rights or performing its obligations under these Terms, for the purpose of exploring a business relationship (or changes to the business relationship) between the parties, or for any other purpose consistent with the Privacy Notice; and (iii) not disclose any of the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party's service providers or financial/legal advisors who need to know the Confidential Information and are bound to confidentiality obligations at least as restrictive as those in these Terms.
10.3 Compelled Access or Disclosure.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, (i) use commercially-reasonable efforts to immediately notify the Disclosing Party of such disclosure to afford the Disclosing Party the opportunity to contest the disclosure, at the Disclosing Party's sole cost and expense, via a protective order or other remedy; (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with us in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
10.4 Injunctive Relief.
Each of the parties to these Terms acknowledges that the other party will be irreparably harmed if Confidential Information of the other is distributed in breach of this Section, and that such other party would not have an adequate remedy at law in the event of such an actual or threatened breach. Therefore, each of the parties agrees that the other party shall be entitled to seek injunctive relief against any actual or threatened breaches of this Section by the other party without the necessity of showing actual damages or showing that monetary damages would not afford an adequate remedy.
11.1 Governing Law.
You agree that: (i) we will be deemed solely based in the State of California; and (ii) our Service will be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms will be governed by the internal substantive laws of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 13.2 and preempts all state laws to the fullest extent permitted by law. If the FAA is determined to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in San Francisco, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco, California is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
This section 11.2 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of our Service, including receipt of any advertising, marketing, or other communications from us; (c) any transactions through, by, or using our Service; or (d) any other aspect of your relationship or transactions with us, directly or indirectly, as a user or consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms.
If you are a new User, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing us at firstname.lastname@example.org with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim through binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, the Arbitration Agreement shall control. The arbitration will be conducted in the U.S. county where you live or San Francisco, California, unless you and we agree otherwise. If you are using our Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using our Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and we agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, or any provision of these Terms, is unconscionable or illusory or any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
NOTHING IN THIS SECTION WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
11.3 Class Action/Jury Trial Waiver.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND WE AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND WE AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
If our Service is being used by the U.S. Government, our Service is commercial computer software and documentation developed exclusively at private expense, and (i) if acquired by or on behalf of a civilian agency, will be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by or on behalf of units of the Department of Defense (“DOD”) will be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-3, DOD FAR Supplement and its successors.
You understand and acknowledge that our Service may be subject to export control laws and regulations. You agree to comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither you, nor any person to which you make our Service available or that is acting on your behalf, or, if you are an Organization, any of your subsidiaries, or any of your or their directors, officers or employees, or any person owning 50% or more of your equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade and economic sanctions or embargoes.
We may identify you as a User in our promotional materials. We will promptly stop doing so upon your request sent to firstname.lastname@example.org.