Effective Date: April 25, 2023
The materials on this website or mobile application are provided by ProSupplyDirect.com, (hereinafter, “ProSupplyDirect,” “we” or “us”). The ProSupplyDirect website at https://prosupplydirect.com (including all content under the “prosupplydirect.com” domain name) is owned by ProSupplyDirect.com, and is referred to herein as the “Website.” The services that we may provide to you via the Website or any related mobile application are referred to herein as the “Services.” By accessing and using any of the Services, you are agreeing to be legally bound by the terms and conditions of this Agreement. Use of and access to the Services is subject to the terms of this Agreement and all applicable laws and regulations. Please read this Agreement carefully. If you do not agree with and consent to this Agreement, please do not use the Services. If you are accepting this Agreement on behalf of a legal entity other than yourself as an individual, including a business or a government, you represent and warrant that you have full legal authority to bind such entity to this Agreement. You and ProSupplyDirect may be referred to herein individually as a “Party” and collectively as the “Parties.”
The following additional terms are incorporated into this Agreement as if fully set forth herein:
- Copyright Policy
- Complaint Policy
(c) THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER. WHERE PERMITTED BY LAW, YOU UNDERSTAND AND AGREE TO SUBMIT TO ARBITRATION PROCEEDINGS TO SETTLE ANY DISPUTES HEREUNDER, THAT SUCH ARBITRATION WILL BE IN LIEU OF LITIGATION, AND EACH PARTY HEREBY WAIVES THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL IN FAVOR OF THE ARBITRATION PROCEEDING EXCEPT AS PERMITTED UNDER THIS AGREEMENT.2. LICENSE GRANT; LIMITATIONS
(a) Subject to the terms of this Agreement, we hereby grant you a limited, terminable, non-sublicensable, non-transferable, non-exclusive right to access and use the Services that are intended for public display or access, on a personal computer or mobile device owned or controlled by you. Any rights not explicitly granted in this Agreement are strictly withheld and reserved by us.
(b) You agree that (i) except in your normal use of the Services, you will not copy or distribute any part of the Services in any medium without our prior written authorization; (ii) you will not alter or modify any part of the Services other than as is necessary to use the Services for their intended purposes; and (iii) you will otherwise comply with this Agreement.
(c) We shall have no obligation to support your use of the Services in the event that: (i) you modify the Services (or any component thereof) without our prior written consent; (ii) you experience any error caused in whole or in part by persons other than us (including without limitation, your failure to properly enter or transmit data); or (iii) you experience any error caused in whole or in part by your use of the Services in association with operating environments and platforms other than those that we support.
(d) To the extent that the Services incorporate any third-party products, then, in addition to the terms set forth herein, you must comply with any additional terms, restrictions or limitations applicable to such third-party products. We have the right to subcontract performance of hosting, credit card and payment processing and other services, in which event the service levels provided by the applicable third-party providers will be incorporated herein by reference.
(e) You shall procure, install, and maintain all client-side equipment, data plans, Internet connections and other hardware necessary for you to connect to and access the Services. We are not responsible for equipment defects, lack of service, or other issues arising from third party services or equipment. You are responsible for all applicable data plan fees, subscription charges or other fees of any kind whatsoever that may be required by your carrier in order to access the Services.3. RESTRICTIONS
(a) You agree that you will not violate any applicable law or regulation in connection with your use of the Services.
(b) You agree that you will not distribute, upload, make available or otherwise publish through the Services any suggestions, information, ideas, comments, promotions, documents, questions, notes, plans, drawings, proposals, graphics, text, information, links, profiles, personal information, name, likeness, audio, photos, software, music, sounds, video, messages, posts, tags or similar materials (“Submissions”) that:
- are unlawful or encourage another to engage in anything unlawful;
- contain a virus or any other similar malicious software that may damage the operation of our or another’s computers;
- infringe upon any copyright, patent, trademark, trade secret, right of privacy, right of publicity or other right of any person or entity;
- are false, inaccurate, fraudulent, or misleading; or
- are libelous, defamatory, obscene, inappropriate, abusing, harassing, threatening or bullying.
(c) You further agree that you will not do any of the following:
- modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Services;
- interfere with or disrupt the operation of the Services, including restricting or inhibiting any other person from using the Services by means of hacking or defacing;
- access or use the Services to solicit, promote or market any products or services not covered by the Agreement;
- transmit to or make available in connection with the Services any denial-of-service attack, virus, worm, Trojan horse or other harmful code or activity;
- engage in any anti-competitive or illegal conduct;
- attempt to probe, scan, or test the vulnerability of the Services or to breach our security or authentication measures;
- take any action that imposes an unreasonable or disproportionately large load on our infrastructure, as determined in our sole discretion;
- harvest or collect the email addresses or other Personal Data of other users of the Services;
- disclose any confidential, personal, and/or personally identifiable information of you or any other person (provided however, that subject to the provisions of the Agreement, you may at your sole discretion disclose your own confidential, personal, and/or personally identifiable information through the Services, in which case you expressly agree that to the maximum extent permitted by applicable law, neither we nor Third Parties are responsible or liable for the security or confidentiality of any information you may provide or any other consequences or claims resulting from such disclosure);
- scrape or collect any content from the Services via automated means;
- submit or post false, incomplete, or misleading information to the Services, or otherwise provide such information to us;
- register for more than one user account;
- impersonate any other person, entity, or business; or
- state or imply any endorsement or sponsorship by use of any content (including User Content), product, service, or event, except to the extent such endorsement or sponsorship is specifically and explicitly acknowledged and approved by us in writing.
(d) In addition, we reserve the right to review, edit or remove any Submissions, however, we are not required to routinely screen, monitor or review Submissions on the Services. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY SUCH SUBMISSIONS, AND YOUR RELIANCE ON ANY INFORMATION CONTAINED THEREIN IS AT YOUR OWN RISK.
(e) You agree that you are not licensed or permitted to access any portion of the Services that we have not made public or accessible to users (whether registered or not), and you may not attempt to override any security measures in place on the Services.
(f) Notwithstanding the foregoing rules of conduct, our unlimited right to terminate your access to the Services shall not be limited to violations of this Restrictions section.4. ELIGIBILITY AND MEMBERSHIP
(a) Eligibility Requirements. Some parts or all of the Services may not be available to the general public, and we may impose eligibility rules from time to time. We reserve the right to amend those eligibility requirements at any time. You are not eligible to use the Services if doing so would violate any applicable law or regulation, including but not limited to U.S. export controls or restrictions.
(b) Age Requirements. You must be over the age of 18 to register an account to use the Services. By registering an account or using the Services, you represent that you meet this minimum age requirement. In any case, you affirm that you are over the age of 13, as the Services are not intended for use by anyone under 13. If you are under 13 years of age, then please do not use the Services without the consent of your parent or guardian. Pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your Internet Services provider for more information.
(b) If you are registered with a Member account for the Services, you agree to keep your Credentials for login to the Services confidential and secure. You are responsible for controlling the access to and use of your account. You understand and agree that we assume that instructions we receive from your account are authoritative, and that we should act upon such instructions. We are not responsible for any unauthorized access to your account or profile or the ramifications of such access, and we are not required to take action to disable any account. You agree that you will not bring any action against us arising out of or related to any claimed unauthorized access using your account Credentials. Your use of any User ID or Credentials other than as provided in this Agreement shall be considered a breach of this Agreement by you.
(c) Notwithstanding the foregoing, if we believe that there has been an unauthorized access to your account, we may take reasonable actions to disable or lock your account, or otherwise address your situation.6. SUBMISSIONS
(a) You are under no obligation to submit anything to us, and unless otherwise noted, we will not claim ownership of your Submissions. In order for us to provide the Services to you or to promote our Services, however, we require your permission to process, display, reproduce and otherwise use Submissions you make available to us. Therefore, if you choose to submit any Submissions (including your name, likeness and other Personal Data) to the Services, or otherwise make any Submissions available through the Services, you hereby grant to us a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, distribute, translate and create derivative works from any such Submissions for purposes of providing, using, improving or promoting the Services.
(c) By submitting any Submissions to us, you hereby agree, warrant, and represent that: (a) your provision of the Submissions does not violate any third party’s rights; (b) all such Submissions are accurate and true; and (c) you are not entitled to compensation or attribution from us in exchange for the Submissions.
(d) You acknowledge that except to the extent that we process and store your Submissions as part of the Services, we are under no obligation to maintain any Submissions that you submit, post or make available to the Services. We reserve the right to withhold, remove and or discard any such materials at any time.7. PUBLIC AREAS
(a) You understand that by sharing information on the Services, and requesting information to be sent through the Services, you may be revealing information about yourself and/or your business that you may include or that may be generated by the Services. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that we are not responsible or liable in any way in connection with such sharing.8. ELECTRONIC COMMUNICATIONS; TRANSACTIONS
(a) Because we operate the Services via the Internet, you consent to transact business with us electronically in order to use the Services. As part of such business, you also consent to our communicating disclosures and other information electronically. Under this Agreement, you agree to electronically receive all documents, communications, notices, disclosures, contracts, and agreements arising from or relating to your use of the Services, including your registration to our Services (each, a “Disclosure”). We will provide all Disclosures to you electronically through the Services or via electronic mail to the email address you provided. Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any Transactions to which such Disclosures relate. Your consent will remain in effect for so long as you are a Member and, after you are no longer a Member, such consent will continue until such time as all Disclosures relevant to your Transactions that occurred while you were a Member have been made.
(b) You represent that you are the owner, or authorized user of the wireless device you use to receive the service, and that you are authorized to approve the applicable charges.
(c) Data obtained from you in connection with the Service may include your mobile phone number, your carrier’s name, and the date, time, and content of your messages and other information that you may provide. We may use this information to contact you and to provide the services you request from us, and to otherwise operate, develop, and improve the service. Your wireless carrier and other service providers may also collect data from your SMS usage, and their practices are governed by their own policies. We will only use the information you provide to the service to transmit your text message or as otherwise described in this document. Nonetheless, we reserve the right, at all times, to disclose any information as necessary to satisfy any law, regulation, or governmental request, to avoid liability, or to protect our rights or property. When you complete forms online or otherwise provide us with information in connection with the service, you agree to provide accurate, complete, and true information.
(d) Service Provider Charges. Receipt of cellular phone calls of SMS text messages may be subject to service provider charges. If you have provided us with a cellular phone number through the App, in your registration or application to use the Services, or later provide a cellular phone number to us, then you agree we can call your cellular phone or send SMS text messages to you by using an automatic telephone dialing system or prerecorded messages in order to provide information and services regarding your accounts and relationship with us. Your wireless carrier’s standard messaging rates apply to SMS correspondence. We do not charge for any content; however, downloadable content may incur additional charges from your wireless carrier. Please contact your wireless carrier for information about your messaging plan. Your carrier may impose message or charge limitations on your account that are outside of our control. All charges are billed by and payable to your wireless carrier.
(e) Opt In. By creating an Account or Profile pursuant to these Terms, you are opting into our text message program and you expressly consent to receive text messages. The content of such text messages may include information about the Services, including, without limitation, invitations to schedule demonstrations of the Services, upcoming renewals, or notification that required fees have been paid. Such text messages may be sent using an automatic telephone dialing system, by or on behalf of Us, at the cell phone number you provide us. By voluntarily providing your cell phone number to us, you consent to receive transactional, operational, or informational text messages at that phone number. Please note we may not be able to deliver messages to all mobile carriers. Consent to receive texts is not a condition of purchasing any goods or services, and you understand and agree that all text messages may be sent using automated technology.
(f) Opt Out. Our third-party service provider gives you the ability to opt out of the Service for any reason. You can opt out by texting “STOP,” “CANCEL,” “UNSUBSCRIBE,” or “NO SMS.”
(g) Delays. We will not be liable for any delays or failures in your receipt of any SMS messages as delivery is subject to effective transmission from your network operator and processing by your mobile device. SMS message services are provided on an “AS IS,” “AS AVAILABLE” basis.
(h) Termination. We reserve the right to alter charges and/or these terms and conditions from time to time. We may suspend or terminate the service to you if we believe you are in breach of our terms and conditions. Your service is also subject to termination in the event your wireless service terminates or lapses. We may discontinue the service at any time.9. PAYMENTS
(b) You may be required to register your personal and/or financial information with us in order to use certain areas of the Services, for example, to initiate Transactions. In doing so, you agree that you will provide accurate and complete information. We may refuse to process your information or requested Transactions if we believe that you may be: i) impersonating another person; ii) violating the intellectual property or other rights of any entity; iii) posting Submissions that are offensive; or iv) providing any information that we may otherwise reject for any or no reason in our sole discretion. You may not use the Services to purchase any illegal goods or services, or for any other underlying illegal Transaction.
(c) We, or a third-party payment processor (“Payment Processor”) may process your payment Transactions and charge Fees to you through your registered account for use of the Services. When you use the Services to make a purchase, you consent to our use of a third party that we select to facilitate and/or process payments made or received through the Services, including, without limitation, consent to access, charge or debit a payer’s credit card, debit card or other payment mechanism. You agree to pay all Fees relating to your Transactions to us through the Payment Processor, and you authorize us to charge your chosen payment provider (e.g., credit card) (“Payment Method”) through the Payment Processor. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors made by the Payment Processor.
(d) WE MAY SUBMIT TRANSACTIONAL CHARGES TO YOU WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE COULD REASONABLY ACT
(e) Your account will be considered delinquent if payment in full is not successful when a charge is initiated. Unless otherwise specified in an invoice, amounts due include all applicable taxes, levies, or duties, and you will be responsible for payment of all such amounts. If you believe that any specific charge under this Agreement is incorrect, in order to obtain a credit, you must contact us in writing within thirty (30) days after the payment due date, and set forth the nature and amount of the requested correction. Otherwise, charges are final.
(f) In addition to other applicable remedies, we reserve the right to suspend and/or terminate your access to the Services and/or terminate this Agreement if your Payment Method is declined or fails and your account therefore is delinquent. Charges to delinquent accounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees and court costs.10. LINKS TO THIRD PARTY WEBSITES
(a) Our graphics, logos, names, designs, page headers, button icons, scripts and service names are our trademarks, trade names and/or trade dress. The “look and feel” of the Services (including color combinations, button shapes, layout, design, and all other graphical elements) are protected by international copyright and trademark laws. All product names, services names, trademarks, and service marks within the Services (“Marks”) are either our property or the property of their respective owners, as indicated. You may not use the Marks for any purpose whatsoever other than as permitted by this Agreement.
(b) You acknowledge that i) the software used to provide the Services, and all enhancements, updates, upgrades, corrections, and modifications to such software (the “Software”), ii) all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the Software (or any enhancements, corrections, or modifications) and iii) all documentation therefor, are the sole and exclusive property of us and/or our licensors. This Agreement does not convey title or ownership to you, but instead gives you only the limited use rights set forth herein. To the extent that you gain access to or receive any copies of the Software, you agree that you will delete such copies of the Software upon any termination of this Agreement, termination of your use of the Services, or at our request.
(c) You acknowledge our proprietary rights in the Services and associated documentation and materials, and shall protect the proprietary nature thereof. If you suggest any new features, functionality, or performance for the Services that we subsequently incorporate into the Services (or any other software or service), you hereby acknowledge that (i) we shall own, and have all rights to use such suggestions and the Services incorporating such new features, functionality, or performance; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon us. You shall not sell, lease, or otherwise transfer or distribute the Services or associated documentation, in whole or in part, without prior authorization in writing from us. In the event of any breach of this paragraph, you agree that we will suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against you.12. DISCLAIMERS
(a) We do not represent or warrant that access to the Services will be error-free or uninterrupted, and we do not guarantee that users will be able to access or use the Services, or their features at all times. We reserve the right at any time to modify or discontinue (temporarily or permanently) the Services, or any part thereof, with or without notice.
(b) Certain data displayed by the Services rely on the receipt of underlying data from third party sources. Such data sources may not be real-time or accurate, and there may be delays or inaccuracies in such displayed data.
(c) The Services may contain typographical errors or inaccuracies, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies, or omissions, and to change or update information at any time without prior notice.
(d) Although we have the right to review, edit, remove, or modify information from or on the Services, we may not screen this material or control the sources of this information, and we do not guarantee the accuracy, suitability, completeness, currency, quality, adequacy or applicability of any such information.
(e) The materials displayed by the Services, including but not limited to product summaries, descriptions, publications and any other such materials, are provided for general information only and are not intended to and DO NOT constitute legal, financial, business, tax, or professional advice of any kind. Those accessing the materials displayed by the Services should not act upon them without first seeking relevant professional counsel. The materials should not be used as a substitute for consultation with a professional adviser. You agree that neither we, nor any third party, are responsible for any financial, business, or legal decisions or consequences that you may make relating directly or indirectly to any action or inaction based on the Services; and you release us and any third party from any and all such claims.
(f) BY USING THE SERVICES, YOU AGREE AND ACKNOWLEDGE THAT WE PROVIDE THE SERVICES “AS IS” WITHOUT ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
(g) USE OF THE SERVICES IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF INACCURACIES, MISREPRESENTATIONS BY USERS, VIRUSES, OR OTHER HARMFUL COMPONENTS.
(h) YOU ASSUME THE RESPONSIBILITY TO TAKE ADEQUATE PRECAUTIONS AGAINST DAMAGE TO YOUR EQUIPMENT WHICH COULD BE CAUSED BY DEFECTS OR DEFICIENCIES IN THE SERVICES, ANY OF OUR INFORMATION, PRODUCTS, SYSTEMS, DATABASES, MATERIALS, OR PART THEREOF.
(i) YOU ACKNOWLEDGE THAT ELECTRONIC COMMUNICATIONS AND DATABASES ARE SUBJECT TO ERRORS, TAMPERING AND BREAK-INS AND THAT WE DO NOT GUARANTEE THAT SUCH EVENTS WILL NOT TAKE PLACE. YOUR INSTALLATION AND INPUTS, AS WELL AS THIRD PARTY SYSTEMS AND PROCEDURES, MAY INFLUENCE THE OUTPUT AND ERRORS IN ANY ORDER OR ELECTRONIC TRANSMISSION OR COMMUNICATION, AND CAN RESULT IN SUBSTANTIAL ERRORS IN OUTPUT, INCLUDING INCORRECT INFORMATION, ORDERS AND AGREEMENTS. IN ADDITION, ERRORS MAY BE INTRODUCED INTO INFORMATION OR TRANSACTIONS IN THE COURSE OF THEIR TRANSMISSION OVER ELECTRONIC NETWORKS. YOU SHALL IMPLEMENT AND TAKE RESPONSIBILITY FOR APPROPRIATE REVIEW AND PROCEDURES TO VERIFY AND CONFIRM TRANSACTIONS IN WHICH YOU PARTICIPATES USING OUR WEBSITE, INFORMATION, SERVICES, DATABASES, SYSTEMS OR OTHER MATERIALS.13. LIMITATION OF LIABILITY
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS OR BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICES, EVEN IF WE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Notwithstanding the foregoing, in the event that a court shall find that any of the above disclaimers are not enforceable, then you agree that neither we nor any of our subsidiaries, affiliated companies, employees, members, shareholders, or directors shall be liable for (1) any damages in excess of the greater of the Fees you have paid to us during the most recent twelve (12) month period or $100.00, or (2) any indirect, incidental, punitive, special, exemplary or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Services. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
(c) SOME JURISDICTIONS MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.14. INDEMNIFICATION
(a) You agree to defend, indemnify and hold harmless us and our directors, officers, employees, agents, licensors, advisors, independent contractors and providers (collectively referred to herein as “Indemnified Parties”) from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from: (i) your use of and access to the Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property or privacy right; (iv) any allegation that any of your Submissions caused damage to a third party; or (v) any conduct, activity or action that is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of the Services.
(b) If you breach a provision of the terms of the Agreement, in addition to any other rights for damages or otherwise, the Indemnified Parties shall be entitled to seek temporary or permanent injunctive relief against you without proof of actual damages.
(c) You further agree that you will cooperate with us as is reasonably required in the defense of any such claims in Section (a). We, on behalf of each of the Indemnified Parties, reserve each Indemnified Party’s right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your foregoing indemnification obligations, and you shall not, in any event, settle any claim or matter without the written consent of us and each of the Indemnified Parties named as a party in such claim.
(d) This defense and indemnification obligation will survive any termination or expiration of this Agreement or your use of the Services.15. TERM; TERMINATION
(a) The “Term” of this Agreement will continue until the Agreement is terminated as provided herein. We reserve the right to terminate this Agreement and/or deny all or some portion of the Services to you or any user, in our sole discretion, at any timeincluding but not limited to (i) removing any content; (ii) monitoring, modifying, or limited the Services; and/or (iii) suspend, revoke, or terminate your access to or use of the Services. This Agreement shall commence upon our providing you with access to the Services and shall continue until terminated by its terms. If we or you elect to suspend or terminate your access to or use of the Services, all of your obligations under the Agreement Terms will survive.
(b) You may terminate this Agreement at any time by ceasing use of the Services, and by closing your account. We may terminate this Agreement at any time by closing your account or otherwise denying you access to the Services.
(c) Without limiting the foregoing or assuming any additional legal obligations, we reserve the right to terminate violators of the Copyright Act, in accordance with applicable law. All rights that you grant to us herein related to Submissions shall survive any termination of this Agreement. Further, your representations, warranties and indemnification obligations herein shall survive any termination of this Agreement.
(d) Upon termination of the Agreement for any reason, your right to use the Services shall immediately cease. Termination of this Agreement shall not relieve either Party of any obligation accrued prior to the termination date or which by its nature should survive any termination of this Agreement.16. CONFIDENTIALITY
(a) The term “Confidential Information” means the Services, associated documentation, our pricing, and all other information we disclose to you that is designated as confidential or that by its nature would reasonably be expected to be kept confidential.
(b) Notwithstanding the previous paragraph, our Confidential Information shall not include information that (i) is or becomes publicly available through no act or omission of you; or (ii) was in your lawful possession prior to the disclosure and had not been obtained by you either directly or indirectly from us; or (iii) is lawfully disclosed to you by a third party not bound by a duty of non-disclosure; or (iv) is independently developed by you without access to or use of our Confidential Information.
(c) You agree to hold all Confidential Information in confidence. You agree not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than performing your obligations or enjoying your rights under this Agreement. You agree to use the same degree of care in protecting the Confidential Information that you use to protect confidential information of your own of a similar nature and value, but in no event less than a reasonable standard of care to ensure that Confidential Information is not disclosed or distributed by your employees or agents in violation of the provisions of this Agreement. You represent that you have, with each of your employees who may have access to any Confidential Information, an appropriate agreement sufficient to enable you to comply with all of the confidentiality terms hereof.
(d) Notwithstanding the foregoing, you may disclose the Confidential Information to the extent that such disclosure is required by law or court order, provided, however, that you provide us with prior written notice of such disclosure and reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure.
(e) After termination or expiration of this Agreement, you shall return any Confidential Information in your possession or control to us.17. DISPUTES, GOVERNING LAW, AND JURISDICTION
(a) The laws of the State of New York shall govern this Agreement. Any legal proceeding or arbitration shall be held in New York City, New York (the “Dispute Resolution Location”). To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Services or us, may only be brought by you in a state or federal court located in the Dispute Resolution Location. YOU HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE IN THE DISPUTE RESOLUTION LOCATION AND WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE AND INCLUDING THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER YOU. YOU AGREE THAT A FINAL JUDGMENT IN ANY LEGAL PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. IN THE EVENT THAT ARBITRATION IS NOT APPLICABLE, THE PARTIES WAIVE THE RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDINGS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(b) You agree that any claim or dispute arising out of or relating in any way to your use of the Services or any service provided by us, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. YOU UNDERSTAND AND AGREE TO SUBMIT TO ARBITRATION PROCEEDINGS TO SETTLE ANY DISPUTES HEREUNDER, THAT SUCH ARBITRATION WILL BE IN LIEU OF LITIGATION, AND EACH PARTY HEREBY WAIVES THE RIGHT TO SUE IN COURT IN FAVOR OF THE ARBITRATION PROCEEDING EXCEPT AS PERMITTED UNDER THIS AGREEMENT.
(c) There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, may award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
(d) To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our address specified in the Notice section, below.
(e) Arbitration under this Agreement will be conducted by the American Arbitration Association (“AAA”) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
(f) You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we both agree that we have each waived any right to a jury trial.
(g) Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights, including any claims of infringement of any third-party patent, copyright, trademark, trade secret, or other proprietary or contractual rights that would violate any applicable law or regulation.
(h) Any dispute or alleged claim you may have with respect to your access or use of the Services must be commenced within one (1) year after the occurrence of the events leading to the dispute or alleged claim.18. GENERAL
(a) Relationship Between The Parties. This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the Parties; nor will either Party hold itself out as an agent, partner, or joint venture party of the other Party.
(b) Compliance With Law. Each Party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement.
(c) Waiver. No waiver shall be implied from conduct or failure to enforce rights. This will in no way affect our rights thereafter to enforce the same or any other provision hereof, nor shall any waiver by us of any breach of the Agreement be deemed a waiver of any other breach of the same. No waiver shall be effective unless in a written document signed by both Parties.
(d) Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.
(e) Assignment. We may assign our rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement or delegate any of your rights, interest, or obligations hereunder, without our prior written consent. The sale of a controlling interest in a single transaction or a series of transactions of yours shall be deemed an assignment hereunder for which our consent is required. Any unauthorized assignment shall be null and void. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
(f) Force Majeure. We shall not be in default or otherwise liable for any delay in or failure of our performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, pandemic, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar causes beyond our control. You acknowledge that the performance of certain of our obligations may require the cooperation of third parties designated by you and outside our control. In the event such third parties fail to cooperate with us in a manner that reasonably permits us to perform our obligations, such failures shall be consider as causes beyond our reasonable control for the purposes of this Section, and shall not be the basis for a determination that we are in breach of any of our obligations under this Agreement or are otherwise liable.
(g) Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of irreparable harm or other damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.You also acknowledge that our rights and remedies and your obligations under the Agreement are cumulative and are in addition to such other remedies as we may otherwise have available to us under applicable laws or any other applicable agreement or disclaimer.
(h) Entire Agreement. This Agreement shall constitute the complete agreement between the Parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof.
(i) Notices and Contact. All legal notices given by you or required under this Agreement shall be in writing and addressed to: firstname.lastname@example.org. You may also contact us with general inquiries at email@example.com.
(j) Survival. Any provision of this Agreement that may reasonably be interpreted as being intended by the Parties to survive termination or expiration of the Agreement, shall survive any such termination or expiration.
If you believe in good faith that any materials posted on the Website or accessed via the Services (the “Materials”) infringe any copyright in any work of yours, you agree to contact our “DMCA Copyright Agent” as identified below, hereby designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
- A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing;
- Information reasonably sufficient to permit us to contact you;
- 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; and,
- 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.
You agree that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
COMPLAINT POLICY FOR INFRINGEMENT OF OTHER RIGHTS
If you believe in good faith that any Materials (as defined above) posted on the Website or accessed via the Services infringe any of your rights (including any trademark or privacy rights, but not including rights in copyright as addressed in the Copyright Policy, above), or are otherwise unlawful, you agree to send a notice to firstname.lastname@example.org, containing the following information:
- Your name, physical address, e-mail address and phone number;
- A description of the Materials posted on the Website that you believe violate your rights or are otherwise unlawful, and which parts of said Materials you believe should be remedied or removed;
- Identification of the location of the Material on the Website;
- If you believe that the Materials violate your rights, a statement as to the basis of the rights that you claim are violated;
- If you believe that the Materials are unlawful or violate the rights of others, a statement as to the basis of this belief;
- A statement under penalty of perjury that you have a good faith belief that use of the Materials in the manner complained of is not authorized and that the information you are providing is accurate to the best of your knowledge and in good faith; and,
- Your physical or electronic signature.
If we receive a message from you that complies with all of the above requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to any entity that posted the claimed violative Materials, or any other entity as we deem appropriate.
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