THIS IS A BINDING LEGAL CONTRACT BETWEEN CASTATUS, INC., A UTAH CORPORATION (“COMPANY”) AND YOU, INDIVIDUALLY, AND ON BEHALF OF YOUR EMPLOYER (COLLECTIVELY, THE “USER”). USERS SHOULD CAREFULLY READ THESE TERMS OF USE (“TERMS OF USE”) BEFORE ACCESSING AND/OR USING (1) ANY OF THE COMPANY'S WEBSITES, AND THE COMPANY'S OTHER APPLICATIONS AND PLATFORMS, INCLUDING ANY MOBILE APPLICATIONS (COLLECTIVELY, THE “SITES”), OR (2) ANY PRODUCTS OR SERVICES PROVIDED BY OR THROUGH THE SITES (COLLECTIVELY, THE “SERVICES”). BY ACCESSING OR USING THE SITES OR SERVICES, OR BY CLICKING TO ACCEPT THESE TERMS OF USE DURING AN ONLINE SIGN-UP PROCESS, THE USER AGREES TO BE BOUND BY THESE TERMS OF USE, AND BE LIABLE TO COMPANY FOR ANY NONCOMPLIANCE WITH THESE TERMS OF USE. IF THE USER DOES NOT AGREE TO THESE TERMS OF USE, AS THESE TERMS OF USE MAY BE MODIFIED FROM TIME TO TIME, THE USER MAY NOT USE THE SITES OR SERVICES.
These Terms of Use apply to and are incorporated by reference into that, as applicable, Master Software As A Service Agreement or other written agreement made by and between the Company and the User (or User’s employer, or other organization or entity that User represents, as applicable) (together with any exhibits and attachments thereto and any related documentation between the parties, collectively, the “Service Agreement”).
In the event that the User or User’s employer has entered into a separate written Service Agreement with the Company governing the Services, the terms of that written Service Agreement shall control to the extent of any conflict with these Terms of Use.
If no such written Service Agreement exists, then these Terms of Use constitute the entire agreement between the Company and the User governing access to and use of the Sites and Services.
1. Right to Use. Subject to all limitations and restrictions contained herein and the applicable Service Agreement, User will have a limited, revocable, non-transferable, and non-exclusive right to use the Sites and Services solely for its internal business purposes and to perform the functions described in the applicable Service Agreement. User shall not allow any person who is not an Authorized User (defined in Section 6) to frame, syndicate, distribute, replicate, or copy any portion of the Sites or Services. Unless otherwise expressly permitted in the applicable Service Agreement and not including Authorized Users, User shall not permit any subsidiaries, affiliated companies, or third parties to access or use the Sites or Services.
2. Use Restrictions. User shall not, and shall not permit any other person or entity to, access or use the Sites or Services except as expressly permitted by these Terms of Use or the applicable Service Agreement. For purposes of clarity and without limiting the generality of the foregoing, User shall not, except as these Terms of Use expressly permit: (a) copy, modify, or create derivative works or improvements of the Sites, Services or Intellectual Property (as defined in Section 12(b)); (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Sites, Services or Intellectual Property to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Sites, Services or Intellectual Property, in whole or in part; (d) bypass or breach any security device or protection used by the Sites, Services or Intellectual Property or access or use the Sites, Services or Intellectual Property other than through valid access credentials assigned to such User or Authorized User; (e) input, upload, transmit, or otherwise provide to or through the Sites or Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful or malicious code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Sites, Services, Intellectual Property, or Company’s provision of services to any third party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Sites, Services or Intellectual Property, including any copy thereof; (h) access or use the Sites, Services or Intellectual Property in any manner or for any purpose that infringes, misappropriates, or otherwise violates any right, title, or interest of the Company or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other customer of the Company), or that violates any applicable law; (i) access or use the Sites or Services for purposes of competitive analysis of the Sites or Services, the development, provision, or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage; (j) access or use the Sites or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or (k) otherwise access or use the Sites or Services beyond the scope of the authorization granted under these Terms of Use.
3. License to User Data. User hereby grants to Company a royalty-free, worldwide, non-exclusive license to use, host, store, reproduce, process, transmit, and display all User Data (defined below) solely as necessary to provide, maintain, support, and improve the Services in accordance with these Terms of Use and any applicable Service Agreement. Except as expressly set forth herein, Company acquires no right, title, or interest in or to the User Data. Upon termination or expiration of any applicable Service Agreement, or if the User cancels their subscription in the absence of a separate written Service Agreement, Company will delete or render inaccessible the User’s account and User Data from its active systems. User Data may remain in routine backup systems for up to sixty (60) days consistent with Company’s standard backup retention policies, after which it will be permanently overwritten in the ordinary course of business. Company will not access or use such retained backup data except as required by law.
(a) “User Data” means information, data, and other content, in any form or medium that is collected, downloaded, or otherwise received, directly or indirectly from User or an Authorized User by or through the Sites or Services. For the avoidance of doubt, User Data does not include any Content (defined below) submitted by User or an Authorized User to the Company, Sites or Services.
(b) Sensitive Data Restrictions. Except through specific features or designated fields of the Services that are expressly intended for such collection, User shall not upload, submit, store, transmit, or otherwise provide to or through the Services any Social Security numbers, driver’s license numbers, passport numbers, government-issued identification numbers, financial account information, payment card data subject to PCI-DSS, health or medical information subject to HIPAA, or any other information classified as “sensitive personal data” under applicable law. If User transmits such information outside of expressly designated collection mechanisms, User does so at its own risk, and Company disclaims all responsibility and liability arising from such submission.
(c) Aggregated and De-Identified Data. Company may use aggregated and de-identified data derived from User Data for analytics, benchmarking, product improvement, security, and other internal business purposes, provided that such data does not identify User, any Authorized User, or any individual and cannot reasonably be re-identified.
4. Submitted Content. The Sites may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards or other interactive features that may allow User to submit, post, display, publish or transmit comments, feedback, background information, messages, photographs, videos, suggestions, questions, reviews and any other related content through the Sites and/or the Services (the “Content”). By submitting the Content, User represents and warrants that: (x) User is the sole author and owner of the Content; (y) User is at least 18 years of age; and (z) the Content supplied by User or an Authorized User will not violate these Terms of Use, or any applicable law and will not cause any injury to any person or entity.
(a) User also represents and warrants that the Content is NOT, as determined by the Company in its sole discretion, any of the following: false, inaccurate, misleading, a violation of any local, state, federal, international or other applicable law, or otherwise obscene, derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person or entity, including as such relates to the harassment, degradation, intimidation, or victimization of an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; an infringement on the rights of others, such as infringements on any patent, copyright, trademarks, trade secret, publicity or privacy rights; an advertisement, solicitation or spam link to other websites or individuals, except if such an advertisement or solicitation has been expressly consented to in writing by the Company; a chain letter or pyramid scheme, or part of a chain letter or pyramid scheme; an impersonation of, and does not purport to impersonate, another business, person, or entity, including the Company and its employees and agents; or a virus or other harmful computer code, and does not contain a virus or other harmful code.
(b) User agrees that Content submitted to the Sites or Services will not be treated as confidential unless expressly agreed to in writing by the Company. User grants Company a royalty-free, worldwide, non-exclusive license to use, reproduce, modify, process, and display such Content solely as necessary to operate, maintain, support, and improve the Sites and Services. Company will not use User Content for marketing or promotional purposes without User’s prior written consent.
(c) User further understands and acknowledges that Company has the right, but not the obligation, to monitor all Content and any submission made to or on the Sites or the Services. Company has the right, in its sole discretion and for any reason, to edit, delete, move, or to refuse to post any Content or any other submission to the Sites or the Services. NOTWITHSTANDING THE FOREGOING, USER IS SOLELY RESPONSIBLE FOR ANY CONTENT AND/OR ANY OTHER SUBMISSION USER OR AN AUTHORIZED USER MAKES TO OR ON THE SITES OR THE SERVICES, AND USER AGREES TO INDEMNIFY THE COMPANY FOR ALL CLAIMS RELATED TO OR ARISING FROM SUCH CONTENT AND/OR SUBMISSIONS.
5. Eligibility. The Services are solely for access and use by Users and Authorized Users (as defined in Section 6). By accessing or using the Services or Sites, User represents and warrants that User (a) has the right, authority, and capacity to enter into Terms of Use and (b) will abide by all of the terms and conditions of these Terms of Use. User hereby expressly acknowledges and agrees that User’s eligibility to access and use the Sites and Services shall be contingent on User’s continued compliance with the terms of the applicable Service Agreement and these Terms of Use.
6. Passwords. With respect to Users who are parties to the Service Agreement, Company will authorize individual employees, consultants, contractors, agents, volunteers of such Users as designated by such Users from time to time pursuant to the applicable Service Agreement (each an “Authorized User”). Each Authorized User will have access to the Services. Users will also be asked to choose a username and a password for the User and, as applicable, each Authorized User. Company may change any username and password for any User or Authorized User at any time, with notice to the User following any such change. Each User or Authorized User must use his or her own username and password and shall not disclose them to anyone else. User shall immediately notify Company of any unauthorized disclosure. User is responsible for (a) each Authorized User’s compliance with these Terms of Use and (b) any employee of User, any person to whom User has given access to the Services, and any person who gains access to the Sites or Services as a result of User’s failure to use reasonable security precautions, even if such use was not authorized by User.
7. Third Party Software. The Sites and Services may contain third party software that requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions may be requested from Company and are made a part of and incorporated by reference into these Terms of Use. By accepting these Terms of Use, User is also accepting the additional terms and conditions, if any, set forth therein.
8. Links to Other Websites & Third Party Content. The Sites may contain links to or be linked from other websites and resources located on servers maintained by third parties over which Company has no control (“Linked Websites”). The Linked Websites are provided for User’s convenience and information only and, as such, User accesses them at its own risk. User agrees and acknowledges that the Company is not responsible for, and does not endorse or warrant, the content of or anything that may be delivered to User or User’s computer as a result of accessing any Linked Websites, whether or not the Company is affiliated with the owners of such Linked Websites. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER SHALL WAIVE ANY CLAIMS RELATED TO, AND THE COMPANY IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR, USER’S ACCESS OF ANY INFORMATION ON OR USE OF THE LINKED WEBSITES, INCLUDING BUT NOT LIMITED TO, ANY VIRUSES OR OTHER ILLICIT CODE THAT MAY BE DOWNLOADED THROUGH A LINKED WEBSITE, OR BY ACCESSING A LINKED WEBSITE.
The information presented on or through the Sites is made available solely for general information purposes and the Company does not warrant the accuracy, completeness, or usefulness of this information. Any reliance User places on such information is strictly at User’s own risk. Company disclaims all liability and responsibility arising from any reliance placed on such materials by the User or any other party who may be informed of any the information contained on the Sites. The Sites include information and content provided by third parties, including the Content and other materials provided by other users, bloggers and third-party licensors, syndicators, aggregators, and/or reporting services (“Third Party Content”). ALL STATEMENTS AND/OR OPINIONS EXPRESSED IN THE THIRD PARTY CONTENT, AND ALL ARTICLES AND RESPONSES TO QUESTIONS AND OTHER CONTENT, OTHER THAN THE CONTENT AND MATERIALS PROVIDED BY THE COMPANY, ARE SOLELY THE OPINIONS AND THE RESPONSIBILITY OF THE PERSON OR ENTITY PROVIDING SUCH THIRD PARTY CONTENT. THE THIRD PARTY CONTENT DOES NOT NECESSARILY REFLECT THE OPINION OF THE COMPANY, AND THE COMPANY IS NOT RESPONSIBLE OR LIABLE TO ANY USER OR ANY THIRD PARTY FOR THE ACCURACY OF ANY OF THE THIRD PARTY CONTENT.
9. Reservation of Rights. USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT NOTHING IN THESE TERMS OF USE GRANTS ANY RIGHT, TITLE, OR INTEREST IN OR TO (INCLUDING ANY LICENSE UNDER) ANY INTELLECTUAL PROPERTY IN OR RELATING TO, THE SITES, SERVICES, OR ANY MATERIALS PROVIDED BY COMPANY TO USER, WHETHER EXPRESSLY, BY IMPLICATION, ESTOPPEL, OR OTHERWISE. All right, title, and interest in and to the Sites, Services, and any materials provided by Company to User will remain with the Company (subject to any limitations associated with intellectual property rights of third parties with respect to materials provided by such third parties), even if enhancements or other changes are suggested or requested by User or any Authorized User and become incorporated into the Sites, Services or Intellectual Property.
10. Marks and Publicity. Company and User trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. Company shall not use User’s name, logo, or Marks in any marketing, promotional materials, press releases, case studies, or public statements without User’s prior written consent. Company shall comply with User’s trademark use guidelines as communicated to Company in writing and shall use User’s Marks in a manner consistent with industry practice. Except as expressly provided in this Section, neither party grants to the other any title, interest, or other rights in or to its Marks.
11. Certain Restrictions. In no event will User disassemble, decompile, or reverse engineer the Sites, Services, or Intellectual Property (as defined in Section 12(b)) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (a) converting the Intellectual Property from a machine-readable form into a human-readable form; (b) disassembling or decompiling the Intellectual Property by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (c) examining the machine-readable object code that controls the Intellectual Property’s operation and creating the original source code or any approximation thereof by, for example, studying the Intellectual Property’s behavior in response to a variety of inputs; or (d) performing any other activity related to the Intellectual Property that could be construed to be reverse engineering, disassembling, or decompiling.
12. Confidential Information. Each party (the “Receiving Party”) agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information (as defined below) of the other party (the “Disclosing Party”). Without limiting the foregoing, each Receiving Party shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care. Each Receiving Party shall limit access to the Disclosing Party’s Confidential Information to its employees, contractors, and agents who have a need to know such information for purposes consistent with the applicable Service Agreement and these Terms of Use, and who are bound by written confidentiality obligations no less protective than those set forth herein. Each Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than performing its obligations or exercising its rights under these Terms of Use or the applicable Service Agreement. Neither party shall disclose Confidential Information to any third party without the prior written consent of the Disclosing Party, except as expressly permitted herein. Each Receiving Party shall promptly notify the Disclosing Party if it becomes aware of any unauthorized use or disclosure of Confidential Information. If a Receiving Party is required by law to disclose Confidential Information, it shall provide prompt written notice to the Disclosing Party (unless legally prohibited from doing so) so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall disclose only that portion of the Confidential Information legally required and shall use reasonable efforts to ensure confidential treatment of such disclosed information. The obligations set forth in this Section shall survive termination or expiration of these Terms of Use.
(a) “Confidential Information” means any non-public information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), whether disclosed orally, visually, electronically, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, business plans, customer data, financial information, technical data, product designs, trade secrets, source code, pricing information, and other proprietary information. Confidential Information does not include information that: (1) is or becomes publicly available without breach of this Agreement; (2) was lawfully known to the Receiving Party prior to disclosure; (3) is lawfully obtained from a third party without breach of any obligation; or (4) is independently developed without use of or reference to the Disclosing Party’s Confidential Information.
(b) “Intellectual Property” means any intellectual property of a party, as applicable, in any jurisdiction throughout the world, including but not limited to: (i) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto and all patents, patent applications and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof, (ii) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, Internet domain names, uniform resource locators and e-mail addresses, and rights in telephone numbers, together with all translations, adaptations, derivations and combinations thereof and including all goodwill associated therewith and all applications, registrations and renewals in connection therewith, (iii) all copyrightable works, all copyrights, and all applications, registrations and renewals in connection therewith, (iv) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals), (v) all software, including computer programs, machine-readable instruction sets or data in computerized form, whether in source code, object code or other form, and all data, databases and related documentation, (vi) all other proprietary rights and (vii) all copies and tangible embodiments thereof (in whatever form or medium).
13. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE APPLICABLE SERVICE AGREEMENT, ALL SERVICES, INTELLECTUAL PROPERTY, CONFIDENTIAL INFORMATION, AND ANY OTHER TECHNOLOGY OR MATERIALS ARE PROVIDED “AS IS.” COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY MATERIALS OR TECHNOLOGY FURNISHED BY COMPANY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN USER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
14. User Indemnification. (a) User shall indemnify, defend, and hold harmless Company and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an “Indemnitee”) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers), incurred by any Indemnitee arising out of or resulting from, or are alleged to arise out of or result from (collectively, a “Claim Against Indemnitee”): (i) Content and User Data, including any processing of Content and/or User Data by or on behalf of Company in accordance with these Terms of Use; (ii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of User or any Authorized User, including Company’s compliance with any specifications or directions provided by or on behalf of User or any Authorized User; (iii) allegation of facts that, if true, would constitute User’s breach of any of its representations, warranties, covenants, or obligations under these Terms of Use or the applicable Service Agreement; (iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by User, any Authorized User, or any third party on behalf of User or any Authorized User, in connection with these Terms of Use or the applicable Service Agreement; or (v) any act or omission arising from or relating to emergency or non-emergency communications submitted by User or Authorized Users to the Sites, Services or the Company.
(b) Company shall defend User against any third-party claim alleging that the Services, as provided by Company and used in accordance with these Terms of Use and the applicable Service Agreement, infringe any United States patent, copyright, or trademark, and shall indemnify and hold harmless User from any damages, costs, and reasonable attorneys’ fees finally awarded against User as a result of such claim, or agreed to in settlement by Company. Company shall have sole control of the defense and settlement of any claim under this Section 14(b), provided that Company shall not settle any claim in a manner that admits liability of User without User’s prior written consent (not to be unreasonably withheld).
This Section 14(b) shall not apply to the extent the alleged infringement arises from: (i) modifications to the Services not made by Company; (ii) combination of the Services with products, services, or data not provided by Company; (iii) use of the Services in violation of these Terms of Use or the applicable Service Agreement; or (iv) User Data or Content.
If the Services become, or in Company’s opinion are likely to become, the subject of an infringement claim, Company may, at its option and expense: (A) procure for User the right to continue using the Services; (B) replace or modify the Services to make them non-infringing; or (C) if neither (A) nor (B) is commercially reasonable, terminate the affected Services and refund any prepaid fees for the unused portion of the subscription term.
15. LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR THE SERVICE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
16. CAP ON LIABILITY. (a) Except for: (i) a party’s indemnification obligations under Section 14; (ii) a party’s willful breach of Section 12 (Confidential Information); or (iii) a party’s fraud or willful misconduct, in no event will the aggregate liability of either party and its respective affiliates, licensors, service providers, or suppliers arising out of or relating to these Terms of Use or any applicable Service Agreement, whether arising under or related to breach of contract, tort (including negligence), strict liability, or any other legal or equitable theory, exceed the total amounts paid by User under the applicable Service Agreement during the twelve (12) months preceding the event giving rise to the claim. (b) The foregoing limitations apply notwithstanding the failure of any essential purpose of any limited remedy.
17. Term and Termination. The term of these Terms of Use will continue until the termination or expiration of the applicable Service Agreement. All rights, licenses, limitations, and obligations provided in Section 3-4, 8-18, 20, 22-23, 25, and 29-32 shall survive any termination or expiration of this Agreement, together with any remedies for breach, or other rights or obligations of the parties that, by their nature, should survive the termination or expiration of this Agreement.
18. Modifications and Amendments. Company may update these Terms of Use from time to time. Company will provide reasonable notice of material changes. Continued use of the Services after such changes become effective constitutes acceptance of the revised Terms; provided, however, that any material changes that materially reduce User’s rights or increase User’s obligations shall not apply during the then-current subscription term without User’s consent.
19. Assignment. User may not assign all or any part of its rights or obligations hereunder, whether by operation of law, change of control, or in any other manner, without the prior written consent of Company. Any such assignment in violation of this Section will be deemed void. The Company may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation and without providing notice to User.
20. Electronic Communications. The communications between User and Company use electronic means, whether User visits the Sites or sends Company emails, or whether Company posts notices on the Sites or Services or communicates with User via email. For contractual purposes, User (a) consents to receive communications from Company in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to User electronically satisfies any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect User’s non-waivable rights.
21. Third Parties. Company will have the right to use third parties, including, but not limited to, employees of Company’s affiliates and subsidiaries (“subcontractors”), in performance of its obligations and services hereunder, and for purposes of these Terms of Use, all references to Company or its employees will be deemed to include such subcontractors.
22. Technical Data. User shall not provide to Company any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. User shall certify that all information provided to Company has been reviewed and scrubbed so that all technical data and other sensitive information relevant to User’s ITAR regulated project has been removed and the information provided is only relevant to bug reports on Company products.
23. U.S. EXPORT CONTROLS. NEITHER THE SITES, SERVICES, NOR ANY SOFTWARE PROVIDED BY THE COMPANY THROUGH THE SERVICES (“SOFTWARE”) MAY BE EXPORTED OR RE-EXPORTED (I) INTO THE TERRITORY OF (OR TO A NATIONAL OR RESIDENT OF) CUBA, NORTH KOREA, IRAN, SYRIA, SUDAN, OR ANY OTHER COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS OR SERVICES; OR (II) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S TABLE OF DENY ORDERS. BY ACCESSING THE SITES OR SERVICES OR DOWNLOADING OR USING ANY SOFTWARE PROVIDED THROUGH THE SITES OR SERVICES, USER REPRESENTS AND WARRANTS THAT USER IS NOT LOCATED IN, UNDER THE CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
24. Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these Terms of Use.
25. Force Majeure. In no event will Company be liable or responsible to any User, or be deemed to have defaulted under or breached these Terms of Use or any Service Agreement, for any failure or delay in fulfilling or performing any term of these Terms of Use or any Service Agreement when and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, including, but not limited to, acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, epidemics or pandemics as defined by the Centers for Disease Control and Prevention or the World Health Organization, embargoes or blockades in effect on or after the date of these Terms of Use or any applicable Service Agreement, whichever is dated earlier, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation, or any other emergency beyond the Company’s reasonable control making it inadvisable, illegal or impractical to perform its obligations hereunder (each, a “Force Majeure Event”).
26. Restricted Rights. Use of the Sites, Services or Software by or for the United States Government is conditioned upon the Government agreeing that the Sites, Services and Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. User shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Sites, Services or Software, when accessed by the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such access.
27. Independent Contractor. Company is an independent contractor and nothing in these Terms of Use will be deemed to make Company an agent, employee, partner, or joint venturer of User. Neither party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
28. Privacy. User understands and acknowledges that User’s personal data will be collected, protected, and used by the Company in accordance with the Company’s Privacy Policy found here, which is incorporated into these Terms of Use as if set forth verbatim herein.
29. Entire Agreement. These Terms of Use, together with any applicable Service Agreement (if any), constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein.
30. Governing Law. These Terms of Use are governed by and construed in accordance with the laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR THE RIGHTS OR LICENSES GRANTED HEREUNDER WILL BE INSTITUTED EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF UTAH IN EACH CASE LOCATED IN THE CITY OF SALT LAKE AND COUNTY OF SALT LAKE, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
31. WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE SERVICE AGREEMENT OR ANY TRANSACTION CONTEMPLATED BY THESE TERMS OF USE OR THE SERVICE AGREEMENT.
32. Fees and Payment. (a) Fees. User agrees to pay all fees specified in the applicable Service Agreement, Order Form, or online subscription checkout. Except as otherwise expressly provided in writing, payment obligations are non-cancelable and fees paid are non-refundable. (b) Payment Terms. Unless otherwise stated in the applicable Service Agreement or Order Form, all fees are due and payable within thirty (30) days of invoice date. Company may charge interest on any overdue amounts at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower. (c) Suspension for Non-Payment. Company may suspend User’s access to the Services if any undisputed amounts are more than fifteen (15) days past due, provided Company has given User written notice of such delinquency and at least ten (10) days to cure. (d) Auto-Billing Authorization. If User elects to pay by credit card or other electronic payment method, User authorizes Company to automatically charge such payment method for all applicable fees during the subscription term. (e) Purchase Orders. Any purchase order issued by User is for administrative purposes only. Any additional or conflicting terms contained in a purchase order shall be void and of no effect unless expressly agreed to in writing by Company. (f) Taxes. Fees do not include applicable taxes. User is responsible for all applicable sales, use, value-added, or similar taxes, excluding taxes based on Company’s net income.