Optic Terms of Service
Last Updated: January 18th, 2021
Optic’s products and services are provided by Optic Labs Corporation (“Company,” “we,” “us,” or “our”). These Terms of Service (“Terms”) govern your access to and use of websites owned and controlled by us, including the website located at app.useoptic.com (collectively, the “Site”) and our products and services, including our various application programming interfaces (“APIs”), plugins, bots, agents, browser extensions and other software and related technology, including those made available through third-party source control platforms such as GitHub, BitBucket and GitLab (collectively, including the Site, the “Services”). Each of you and us is referred to as a “Party” herein and, collectively, as the “Parties”. Please read these Terms carefully, and contact us if you have any questions. By accessing, browsing or otherwise using our Services, you acknowledge that you have read, understood and agree to be bound by these Terms. If you do not accept these Terms, then do not access, browse or use any of our Services. Capitalized terms not defined herein shall have the meaning set forth in the applicable Order (as defined below).
These Terms are effective as of the earliest of (i) the date you first agree to these Terms by clicking “I Agree/I Accept/Sign Up” (or similar button or checkbox), (ii) the date you first access the Services, or (iii) the effective date set forth on the initial Order (the “Effective Date”). These Terms do not have to be signed in order to be binding. If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. In such case, references to “you” throughout these Terms will refer to such employer or entity, except for such references in this paragraph. If you do not have such authority, or if you do not agree with these Terms, you may not use the Services. PLEASE NOTE THAT IF YOU SIGN UP FOR THE SERVICES USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU SHALL BE DEEMED TO REPRESENT SUCH PARTY, AND (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS.
We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms were last revised. You may read a current, effective copy of these Terms by visiting the “Terms of Service” link on the Site or on the applicable third party source control platforms. We will also notify you of any material changes, either through the Services user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Terms. You should periodically visit this page to review the current Terms so you are aware of any revisions. If you do not agree to abide by these or any future Terms, you will not access, browse, or use (or continue to access, browse, or use) the Services.
- Definitions. The following terms shall have the meanings set forth below.
- “Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to these Terms. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
- “Documentation” means any manuals, instructions or other documents or materials that we provide or make available to you in any form or medium and which describe the functionality, components, features or requirements of the Services or Optic Content, including the Specifications and any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, excluding any marketing or other publicly available materials.
- “Feedback” means any suggestion, idea, improvement, enhancement request, recommendation, correction or other feedback provided by you or any User relating to the operation of the Services.
- “Non-Optic Applications” means any Internet-based or offline software application that is provided by you or a third party and interoperates with the Services.
- “Optic Content” means all Software, data, Documentation, reports, text, images, sounds, video, and content made available through the Services, excluding any API specifications specifically created by the Services for you and made available to you.
- “Order” means any order form, or other ordering document, including any Internet-based or email-based ordering mechanism or registration process (e.g., your account page in the Services) expressly referencing these Terms and specifying the level of the Services to be provided hereunder and associated fees therefor that is entered into between you and us, including any addenda and supplements thereto.
- “Software” means any software that may be made available by us in connection with the Services.
- “Specifications” means the description of, minimum standards required for, and the mode, means and mechanisms of action or functionality for the Services set forth in the Documentation.
- “Supplemental Terms” means additional terms that apply to certain Services, including any product-specific terms that may be agreed by the Parties.
- “Third-Party Content” means information and data obtained by us from publicly available sources or our third-party content providers and made available to you and your Users through the Services, Evaluation Services or pursuant to an Order.
- “Usage Data” means: (i) data generated by aggregating Your Data with other data, (ii) learnings, logs, and data regarding use of the Services, and (iii) metadata about the Services; provided, that, the foregoing do not identify you or your Users.
- “User” means, if you are an employer or other entity, any of your employees or contractors who you have authorized to use the Services, for whom you (or us at your request) has supplied a user identification and password either manually or using a Non-Optic Application (e.g., GitHub via oAuth). The references to “User” throughout these Terms are only applicable to you if you are an entity.
- “User Content” means any content that you make available to Company or other users, including by uploading, posting, publishing, emailing or displaying via the Services.
- “Your Data” means any data or information that you or your Users provide to the Services or that is specifically generated by the Services for you in connection with your use thereof, excluding Optic Content and Usage Data. By way of example, Your Data includes (i) data related to your source control platform events, including developer usernames, names of proposed code changes, repository and organization names, (ii) any API specifications specifically created by the Services for you and made available to you, (iii) any API documentation or other data or information uploaded or inputted into the Services by you and (iv) other information regarding API contracts and the health and maintenance of APIs.
- Agreement Structure and Order of Precedence. If there are any conflicts between these Terms and any Order, the Order takes precedence and prevails over these Terms, solely with respect to the subject matter of the applicable Order.
- Use of the Services.
- License to Services. The Services and Optic Content contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to these Terms, each Order and your payment of all Fees (as defined below) described in each Order (if any), we grant to you and each of your Users (i) with respect to Services made available on our Site or other software-as-as-service (as identified in the Order), a non-sublicensable, non-exclusive, non-transferable right to access and use such Services, and (ii) with respect to any Services and Software which are intended to be installed or downloaded (as identified in the Order), a non-sublicensable, non-exclusive, non-transferable license to download and install such Services or Software and to use the same subject to these Terms, in each case, for your personal purposes (if you are an individual) or for your internal business purposes (if you are an entity).
- Some Obligations with Regard to Use of the Services. You shall
- be responsible for your Users’ compliance with these Terms;
- be responsible for the quality and legality of Your Data and User Content, and the means by which you acquired Your Data and User Content;
- use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use that you become aware of;
- use the Services only in accordance with the Documentation and applicable laws and government regulations;
- comply with terms of service of the Non-Optic Applications that you use with the Services. You and your Users are responsible for maintaining the security of your Credentials (as defined below). We cannot and shall not be liable for any loss or damage from your or any of your Users’ failure to comply with this security obligation.
You and your Users may not access the Services if you are our direct competitor except with our prior written consent. In addition, you and your Users may not access the Services for purposes of benchmarking or competitive purposes such as monitoring the Services’ availability, performance or functionality. If you are blocked by Company from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).
You shall promptly notify us of any suspected or alleged violation of these Terms and shall cooperate with us with respect to: (i) investigation by us of any suspected or alleged violation of these Terms and (ii) any action by us to enforce these Terms. We may, in our sole discretion, suspend or terminate your or any User’s access to the Services with or without written notice (including, but not limited to e-mail) to you in the event that we reasonably determine that you or a User has violated these Terms.
- Your Data, User Content and Restrictions on Use. You are solely responsible for Your Data and User Content that you make available to Company, including by uploading, posting, publishing, emailing or displaying (hereinafter, “upload(ing)”) via the Services. The following are examples of the kinds of content and/or uses that are illegal or prohibited by Company. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates this provision, including removing the offending content from the Service, suspending or terminating the account of such violators, and reporting the violator to law enforcement authorities. You agree to not use the Services to:
- upload any content that (A) infringes any intellectual property rights of any party; (B) you do not have a right to upload under any law or under contractual or fiduciary relationships; (C) contains malicious node, including any viruses, worms, time bombs or Trojan horses; (D) poses or creates a privacy or security risk to any person; (E) is unlawful; or (F) in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Company or its users to any harm or liability of any type;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
- violate any applicable local, state, national, or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
- obtain or attempt to access or otherwise obtain any content or information through any means not intentionally made available or provided for through the Services;
- circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content (including Optic Content (as defined below)) available on or through the Services, including through the use of virtual private networks;
- engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods;
- use the Services, or allow the transfer, transmission, export, or re-export of the Services or Optic Content or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; or
- copy the Services or any part, feature, function or user interface thereof, or otherwise access the Services, in order to build a competitive product or service.
- User Content. You represent and warrant that you own all right, title and interest in and to your User Content, including by uploading via the Services, including all copyrights and rights of publicity contained therein. You assume all risk associated with your User Content and the transmission of your User Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of your User Content.
- Removal of Third-Party Content and Non-Optic Applications. If we send you a notice that any Third-Party Content or a Non-Optic Application must be removed from the Services, modified and/or disabled to avoid violating applicable law, third-party rights, or the terms of these Terms, you shall promptly do so. If you do not take the required action, or if, in our judgment, continued violation is likely to reoccur, we may disable or remove the Third-Party Content and/or the Non-Optic Application from the Services. If we request it, you shall confirm such deletion and discontinuance of use in writing and you hereby authorize us to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if we are required by any third-party rights holder to remove Third-Party Content, or we receive information that Third-Party Content provided to you via the Services may violate applicable law or third-party rights, we may discontinue your access to such Third-Party Content through the Services.
- Free Evaluations. From time to time, we may invite you and/or your Users to try certain features or products at no charge for a free trial or evaluation period (collectively, “Evaluation Services”). Evaluation Services may be designated or identified as beta, pilot, evaluation, trial or the like. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, EVALUATION SERVICES ARE LICENSED FOR YOUR INTERNAL EVALUATION PURPOSES ONLY (AND NOT FOR PRODUCTION USE), ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OR INDEMNITY OF ANY KIND AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO ANY EVALUATION SERVICES OR ANY FREE TRIAL, INCLUDING ANY LIABILITY OR HARM ARISING IN CONNECTION WITH THE EVALUATION SERVICES, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE OUR LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING ANY FREE TRIAL SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, YOU SHALL BE FULLY LIABLE UNDER THESE TERMS TO US AND OUR AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE EVALUATION SERVICES DURING ANY TRIAL PERIOD, ANY BREACH BY YOUR OR ANY OF YOUR USERS OF THESE TERMS AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER. Unless otherwise stated in an Order, any Evaluation Services trial period shall expire thirty (30) days from the trial start date. Notwithstanding the foregoing, we may discontinue Evaluation Services at any time at our sole discretion and may never make any Evaluation Services generally available.
- Access and Use of the Service.
- Member Account, Password and Security: You are responsible for maintaining the confidentiality of your and your Users’ password and account details (“Credentials”), if any, and are fully responsible for any and all activities that occur under your Credentials. You agree to (a) immediately notify Company of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Company will not be liable for any loss or damage arising from your failure to comply with this paragraph.
- Modifications to Service: Company reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
- General Practices Regarding Use and Storage: You acknowledge that Company may establish general practices and limits concerning use of the Service, including the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on Company’s or its third-party service providers’ servers on your behalf. You agree that Company has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Company reserves the right to terminate Accounts that are inactive for an extended period of time. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
- Open Source Software: The Software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found at: https://www.useoptic.com/legal/open-source-usage (opens in a new tab) . If required by any license for particular open source software, Company makes such open source software, and Company’s modifications to that open source software (if any), available by written request to firstname.lastname@example.org . Copyrights to the open source software are held by the respective copyright holders indicated therein.
- Ownership of the Services. The Services, including all Optic Content therein, are the property of us and our licensors, and are protected by copyright, patent, trademark, trade secret and/or other intellectual property laws. Subject to the limited rights we expressly grant to you in these Terms, we and our licensors reserve all of our and our licensors’ right, title and interest in and to the Services, respectively, including all of our and our licensors’ intellectual property rights in and related thereto. Except as expressly authorized by us, you agree not to copy, frame, scrape, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, rent, lease, loan, distribute, assign, sublicense, or otherwise transfer any right in the Software or the Services. We grant no rights to you or any User pursuant to these Terms other than as expressly set forth in these Terms.
- Trademarks. The Company name and logos are trademarks and service marks of Company (collectively the “Company Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners (the “Third Party Marks”) who may or may not endorse or be affiliated with or connected to Company. Nothing in these Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Company Trademarks or any Third Party Marks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Company Trademarks or the Third Party Marks will inure to our or such third party’s, respectively, exclusive benefit.
- Third-Party Content. Under no circumstances will Company be liable in any way for any Third-Party Content or any of Your Data or User Content, including for any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Company does not pre-screen such content, but that Company and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, Company and its designees will have the right to remove any content that violates these Terms or is deemed by Company, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
- Your Data. As between you and us, (a) Your Data is your property, and (b) you retain any and all rights, title and interest in and to Your Data.
- License to Your Data. You hereby grant us and our Affiliates a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, non-transferable (except as otherwise provided herein), license to copy, display, distribute, modify, create derivative works of and otherwise use and process Your Data to provide the Services. Without limiting the foregoing, if you choose to use a Non-Optic Application with the Services, you grant us permission to allow the Non-Optic Application and its provider to access Your Data and information about your and your Users’ usage of the Non-Optic Application, as appropriate for the interoperation of that Non-Optic Application with the Services. You acknowledge and agree that Company may preserve Your Data and may also disclose Your Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws, or government requests; (ii) enforce these; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Company, its users, and or the public.
- Usage Data. You acknowledge and agree that we may monitor usage of the Services and, in connection therewith, generate Usage Data, which we may use for any business purpose during or after the Term (including without limitation to develop and improve our products and services). For the avoidance of doubt, we shall own all right, title and interest in and to the Usage Data including all related intellectual property rights.
- Feedback. You hereby grant to us a worldwide, perpetual, irrevocable, sublicensable (through multiple tiers), royalty-free license to copy, display, distribute, modify, create derivative works of and otherwise use Feedback, including by incorporating such Feedback into the Services, using such Feedback in the design of our and our Affiliate’s products and making, using, selling, offering for sale and importing our and our Affiliate’s products and services embodying such Feedback in any manner and via any media we may choose. The Parties agree that all Feedback, if any, is and shall be given entirely voluntarily.
- Fees. You shall pay us the fees set forth in each Order (“Fees”), in accordance with the terms set forth therein and these Terms. All amounts paid or payable are non-refundable, non-cancelable and non-creditable. Unless otherwise stated in an Order, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of these Terms. “Taxes” mean all applicable federal, state and local taxes, fees, charges, or other similar exactions, including, without limitation, sales and use taxes, excise taxes, VAT, GST, and other license or business and occupations taxes. For purposes of this Section 8(a), Taxes do not include any Taxes that are imposed on or measured by our net income, property tax, or payroll taxes.
- Term and Termination.
- Term of Agreement. These Terms shall begin on the Effective Date and continue to remain in effect until terminated in accordance with this Section 9 (the “Term”).
- Term of Orders. The term of a particular Order shall be set forth therein, starting on the effective date of the Order as specified therein and continuing for the initial term and any renewal term(s) specified. Either Party may terminate any Order in accordance with its terms or if you purchase an annual subscription pursuant to such Order you may elect not to renew such Order upon thirty (30) days’ written notice prior to the end of the then-current term under the Order.
- Termination. Company may terminate these Terms upon thirty (30) days advance written notice to the you of its desire to terminate. We may suspend your Account or access to the Services or terminate these Terms immediately upon your material breach of these Terms and as otherwise set forth herein. If you are accessing the Services for free, you may terminate these Terms at any time upon thirty (30) days’ prior written to the Company.
- Effect of Termination. Sections 1, 2, and 6-14 of these Terms shall survive any expiration or termination of these Terms. The applicable Orders may identify additional terms that shall survive any expiration or termination of these Terms. Regardless of the basis for termination of these Terms, (i) upon expiration or termination of an Order or these Terms, you shall immediately be unable access and use the Services and (ii) we shall not be obligated to retain User Content, Your Data or logs thereof for longer than thirty (30) days after any such expiration or termination, and thereafter we may, in our sole discretion, delete all of User Content and Your Data from the Services and such information cannot be recovered once your Account or any User Account is terminated. You shall return or destroy all copies of all Optic Content and all portions thereof in your possession and certify such destruction to us, if such certification is requested by us.
- Confidentiality. Any technical, financial, business or other information provided by one Party (the “Disclosing Party") to the other Party (the “Receiving Party") and designated as confidential or proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information") shall be held in confidence. The Receiving Party will not use the Confidential Information of the Disclosing Party except in exercising its rights or performing its obligations under these Terms. The Receiving Party will not disclose the Confidential Information of the Disclosing Party to any third party; provided, that, the Receiving Party may disclose such Confidential Information to its employees and contractors who have a need to know and who have signed written agreements containing restrictions consistent with this Section 10. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). These obligations shall not apply to information that (i) was previously known by the Receiving Party, as demonstrated by documents or files in existence at the time of disclosure; (ii) is generally and freely publicly available through no fault of the Receiving Party; (iii) the Receiving Party otherwise rightfully obtains from third parties without restriction; or (iv) is independently developed by the Receiving Party without reference to or reliance on the Disclosing Party’s Confidential Information, as demonstrated by documents or files in existence at the time of disclosure. Notwithstanding anything to the contrary herein, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled to do so by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded the Confidential Information
- Indemnification. You agree to defend, indemnify, and hold harmless Company, its Affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Company Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Services, any of Your Data and User Content, your connection to the Services, your violation of these Terms, or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Company Party from or against any liability, losses, damages, or expenses incurred as a result of any action or inaction of such Company Party. Company will provide notice to you of any such claim, suit, or proceeding. Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Company’s defense of such matter. You may not settle or compromise any claim against the Company Parties without Company’s written consent. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or releasing party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
- Disclaimers of Warranties. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY PARTIES MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
- Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE COMPANY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID COMPANY IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION”, “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
- Governing Law; Venue; Attorney’s Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to any choice or conflict of law provision or rule. Each Party hereby irrevocably agrees and submits to exclusive jurisdiction and venue in the federal district courts in the North Carolina for any suit, action, or proceeding arising out of, based on, or related to this Agreement (an “Agreement Dispute”); except, however, if the federal district courts in the North Carolina decline to exercise jurisdiction, each Party agrees and submits to exclusive jurisdiction and venue in the North Carolina state courts in Durham and/or Wake County, North Carolina for any Agreement Dispute. If each of these courts decline to exercise jurisdiction, each Party agrees and submits to jurisdiction and venue in any federal or state court located in the State of North Carolina for any Agreement Dispute. Each Party irrevocably consents to personal jurisdiction in the State of North Carolina for any Agreement Dispute. Each Party also irrevocably waives any right it may have to a trial by jury in any Agreement Dispute. Each Party further agrees that service of process may be accomplished by overnight mail with delivery confirmation to the addresses set forth in this Agreement, and that such service shall be effective service of process for any Agreement Dispute. .
- Assignment. Neither Party may assign or otherwise transfer (by operation of law or otherwise) these Terms, or any of a Party’s rights or obligations under these Terms, to any third party without the other Party’s prior written consent; provided, however, that Company may assign or otherwise transfer these Terms, including all associated Orders (and all its rights and obligations thereunder), without such consent (i) to a successor to all or substantially all of its assets or business to which this Agreement relates, whether by merger, purchase or otherwise, or (ii) to any of its Affiliates. In the event of such a permitted transfer by you, the rights granted under these Terms shall continue to be subject to the same usage limitations that applied under applicable Order prior to the transfer (e.g., any transaction volume terms and limitations to particular your legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this Section is void. Subject to the terms of this Section, these Terms shall bind and inure to the benefit of the Parties and their respective permitted successors and transferees. There are no third-party beneficiaries under these Terms.
- Force Majeure. Except for the payment obligations hereunder, if either Party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, "Force Majeure”), the affected Party’s performance shall be excused for the resulting period of delay or inability to perform. The affected Party must, however, (a) give the other Party prompt written notice of the nature and expected duration of such Force Majeure, (b) use commercially reasonable efforts to mitigate the period of delay or inability to perform, (c) periodically notify the other Party of significant changes in the status of the Force Majeure, and (d) notify the other Party promptly when the Force Majeure ends.
- Independent Contractors. The Parties are independent contracting parties. Neither Party has, or shall hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with these Terms shall not be construed as a joint venture, partnership, franchise, employment, fiduciary, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
- Government Users. If you are a U.S. government entity, or these Terms otherwise becomes subject to the Federal Acquisition Regulations (FAR), you acknowledge that the Services constitute “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in these Terms, except that, for U.S. Department of Defense Users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to these Terms specifically granting those rights.
- Severability. If any provision of these Terms or any Order shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms and any applicable Order shall otherwise remain in full force and effect and enforceable.
- Waiver. A Party’s failure or delay in exercising any right hereunder shall not operate as a waiver thereof, nor shall any partial exercise of any right or power hereunder preclude further exercise.
- Entire Agreement. these Terms, together with all applicable Orders, and if applicable, any Supplemental Terms (including any other terms referenced in any of those documents), comprises the entire agreement between the Parties regarding the subject matter of these Terms, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter.