Terms of Service
April 26, 2018.
THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) ARE BETWEEN THOUGHT HORIZON, LLC (“COMPANY” or “Thought Horizon”) AND YOU (“CUSTOMER”). IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER IS THE EMPLOYEE OR AGENT OF SUCH COMPANY OR OTHER ENTITY AND THAT CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY OR OTHER ENTITY. BY SIGNING THIS AGREEMENT, CHECKING THE “I AGREE” BOX AND/OR USING THOUGHT HORIZON SOFTWARE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTANDS ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, COMPANY IS UNWILLING TO LICENSE THE SOFTWARE (AS DEFINED BELOW) TO CUSTOMER, AND CUSTOMER MUST NOT CHECK THE “I AGREE” BOX. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH CUSTOMER SIGNS, USES THE SERVICES OR SERVICES OF COMPANY OR CHECKS THE “I AGREE” BOX, WHICHEVER IS THE EARLIEST TO LEGALLY BIND THE CUSTOMER.
For the purpose of this Agreement, customer and, if applicable, the company, or other entity he or she represents will be herein referred to as the “Customer”. The Customer and Company are collectively referred to as the “Parties.” If Customer has also entered into a Corporate Agreement, as defined below, with Company, the terms of the corporate agreement shall control if the two agreements contain conflicting terms.
IMPORTANT NOTE: To the extent that this software may be used to reproduce materials, it is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material, you should contact your legal advisor.
IN ADDITION TO ALL OTHER TERMS OF THIS AGREEMENT, CUSTOMER IS WARNED TO NEVER OPERATE THOUGHT HORIZON or any other mobile application USING A WIRELESS OR MOBILE DEVICE WHILE OPERATING A MOVING VEHICLE.
Please read the terms carefully before signing, clicking “Accept”, or otherwise using our products or services.
a) “Account” means the Customer’s personal identifying information through which he or she gains access to the Services provided by the Company
b) “Administrator” means (i) an individual who has an email address in Client’s first or second level domain, is the first person to claim his company’s domain via the Service, and has his company’s authorization to establish and maintain the Company Community and Company Portal; (ii) in the case of a Corporate Account, an individual who is designated by Client as an Administrator
c) “Agreement” means this Terms of Service Agreement, as amended from time to time by the Company.
d) “Authorized User” means (i) any Staff who has a valid email address in the company’s first or second level domain name who has successfully signed up to use the Service; or (ii) a non-Staff individual who has been invited by an Administrator, and has successfully signed up to be part of the Company Community, who, in either (i) or (ii), has not been disqualified by an Administrator.
e) “Beta Features” means new and/or updated features of the Services, and/or trial periods that Company may choose to offer from time to time.
f) “Client” means a Customer who purchased a paid account for the services of creating a Corporate Community on company platforms.
g) “Company” means THOUGHT HORIZON, LLC.
h) “Corporate Community” means the on-line and mobile community comprising Authorized Users, who work for or are authorized by a Client.
i) “Content” means any information that may be generated or encountered by Customer through Customer’s use of the Services, such as data files, device characteristics, written text, ideas, opinions, graphics, photographs, images, sounds, videos, messages and any other like materials provided or made available by or to Customer.
j) “Corporate Agreement” means a separate agreement between Company and Customer, under which Customer purchases Services from Company.
k) “Customer” means you, the Party agreeing to this Agreement, both on behalf of yourself and on behalf of any entity for which you are acting as an employee or agent. The term Customer shall also mean both Clients, and Users.
l) “Intellectual Property Rights” means any and all right, title and interest in and to the Software and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing property rights.
m) “Mobile Application” means the mobile application platform created by, maintained, or serviced by the Company and any and all derivative versions and/or updated versions of said application.
n) “Program” means any Beta Features offered as part of any public beta program.
o) “Services” means any and all services provided by Company, including but not limited to Social marketing, web development, mobile app development, and other technology and components that allow Customer and a User to share information whereby Customer, Customer’s agents, and other User’s may post and share company related information.
p) “Social Media Outlet” means an Authorized User’s social media account (e.g. Facebook, Twitter, LinkedIn) that is supported by Company, and approved by an Authorized User as content distribution channels in connection with the Service.
q) “Software” means any and all graphics, user interface, scripts, code and/or other forms of software used to implement the Services and the Mobile Application, and any software provided to Customer as a part of and/or in connection with the Services and/or Mobile Application.
r) “Staff” means any employee or agent of a Client.
s) “User” means any end user using the Software offered by or through Client, or any user using the Mobile Application to view the Content. All Users shall be bound to all obligations of Customers as defined herein and must agree to be bound by this agreement before being granted access to the platform, the Mobile Application, or any Services. Users may also be restricted from use by at any time by Client. Users are not entitled to any of the rights and benefits granted to Client beyond a limited sublicense granted to User by Company on behalf of Client, which may be revoked at will by either Company or Client.
2) LICENSE TO CUSTOMER. Company hereby grants to Client a nonexclusive, nontransferable, non-sublicensable, revocable and limited license to access and use the Services solely for the purpose for which the Services have been rendered to Client pursuant to a Corporate Agreement, subject to all limitations and restrictions listed herein. Company hereby grants to User a nonexclusive, nontransferable, non-sublicensable, revocable and limited license to access and use the Services solely for their individual use and the benefit of the Client, subject to all limitations and restrictions listed herein. The Company retains ownership of the Software itself and reserves all rights not expressly granted to Customer. At Company’s sole discretion it may extend this license to Client’s Users but will do so only upon the User also being presented with and agreeing to an identical copy of this Agreement or such other terms and conditions as may be determined by Company. This license shall not be granted to an individual less than 18 years of age.
3) LICENSE TO COMPANY.
a) License to Company: Customer grants to Company and its contractors, heirs and assigns, an irrevocable, royalty-free, worldwide license to access, use, modify, and delete any Customer Content. Notwithstanding material Company licenses to Customer, Company does not claim ownership of the materials and/or Content that Customer or third parties submit or make available via the Services. However, by submitting or downloading, and/or maintaining such Content that are accessible by the public or other users with whom Customer consents to share such Content, Customer grants Company a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content and/or materials for any purpose, without any compensation, consideration, or obligation to Customer. Customer agrees that any Content submitted or provided to Company by Customer is Customer’s sole responsibility, shall not infringe upon or violate the rights of any other party or third party, violate any laws, or contribute to infringing or otherwise unlawful conduct. By submitting or providing such Content within the Services that is accessible by third parties, Customer represents and warrants that Customer is the owner of such material and/or has all necessary rights, licenses, and authorization to distribute it and/or utilize it in the way(s) that it is being utilized within the Services.
b) License to Company: Transmission of Customer’s Content. It is the Customer’s intention and understanding that, in order to provide the Services and make Customer’s Content available thereon, Company may transmit Customer’s Content across various public networks, in various media, and modify or change Customer’s Content to comply with technical requirements of connecting networks, devices and/or computers. Customer agrees that the licenses contained herein permit Company to take any such actions.
4) LICENSE RESTRICTIONS.
a) Ownership. As between the Parties, Company owns all Intellectual Property Rights embodied or used in connection with the Services. As between the Parties and subject to the terms and conditions of this Agreement, Customer owns all right, title and interest in and to the Customer Content generated by the use of the Software by Customer. There are no implied licenses in this Agreement, and Company reserves all rights not expressly granted under this Agreement.
b) No Reverse Engineering. Unless otherwise expressly set forth in this Agreement, Customer will not: (i) modify, translate, or create derivative works of the Software, or Services; (ii) decompile, reverse engineer, or reverse assemble any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software; (iii) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Software; (iv) make, have made, reproduce or copy the Software; (v) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Software; and/or (vi) cause or permit any other party to do any of the foregoing.
c) Limited Use of Services. Customer agrees to use the Services only for purposes permitted by this Agreement, and only to the extent permitted by any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. If Customer’s use of the Services or other behavior intentionally or unintentionally threatens Company’s ability to provide the Services or other systems to Customer or any third party, Company shall be entitled to take all reasonable steps to protect the Services and Company’s systems, which may include restricting Customer’s access to the Services, in whole or in part. Any violations of the limitations set forth herein may result in termination of Customer’s use of the mobile application and/or Services.
d) Availability of the Services. The Services, or any feature or part thereof, may not be available in all languages or in all countries, and Company makes no representation that the Services, or any feature or part thereof, are appropriate or available for use in any particular location. To the extent that Customer chooses to access and use the Services, Customer does so at Customer’s own initiative and is responsible for compliance with any and all applicable laws.
e) Change of Services. Company reserves the right at any time to modify this Agreement and to impose new and/or additional terms or conditions on Customer’s use of the Services. Such modifications and additional terms and conditions will be communicated to Customer and, if accepted, will be effective immediately and will be thereby incorporated into this Agreement. In the event that Customer refuses to accept such changes, Company will have the right to terminate this Agreement and Customer’s Account. Customer agrees that Company shall not be liable to Customer or any third party for any modification or cessation of the Services.
f) Use of the Mobile Application. Furthermore, Customer is solely responsible for maintaining the confidentiality and security of the Mobile Application, and other Services, and for all activities that occur on or through Customer’s use of the Mobile Application, and other Services. Customer agrees to immediately notify Company of any security breach of Customer’s Mobile Application or other Services. Customer further acknowledges and agrees that the Services and Mobile Application are designed and intended for personal use on an individual basis only, and that Customer should not share any information and/or password details with any other individual or entity. Provided that Company has exercised reasonable skill and due care, Company shall not be responsible for any losses arising out of the unauthorized use of such Customer information resulting from Customer’s noncompliance with this or any other provision in this Agreement.
g) Use of Customer’s Account. As a registered user of the Services, Customer must establish an Account. Company agrees to not reveal Customer’s Account information publicly. Customer is solely responsible for maintaining the confidentiality and security of Customer’s Account and for all activities that occur on or through Customer’s Account. Customer agrees to immediately notify Company of any security breach of Customer’s Account. Customer further acknowledges and agrees that the Services are designed and intended for personal use on an individual basis and that Customer should not share Account and/or password details with any other individual or entity. Provided that Company has exercised reasonable skill and due care, Company shall not be responsible for any losses arising out of the unauthorized use of Customer’s Account resulting from Customer’s noncompliance with this or any other provision in this Agreement.
h) Account Authentication Information. In order to use the Services, Customer must enter Customer’s username and password, and any other required information, to authenticate Customer’s Account. Customer agrees to provide accurate and complete information when Customer registers with, and as Customer uses, the Services, and Customer agrees to update this information from time to time to keep it accurate and complete. Failure to provide accurate, current and complete information may result in the suspension and/or termination of Customer’s Account. Customer agrees that Company may store and use this information in maintaining and billing fees to Customer’s Account.
i) Use of Services. ANY USE OF THE SOFTWARE OR ANY PART OF THE SERVICES, EXCEPT FOR USE OF THE SERVICES AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND MAY SUBJECT CUSTOMER TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES.
j) Trademark Information. Company, Company’s logo(s), trademarks, service marks, and graphics used in connection with the Services are trademarks or registered trademarks of the Company in the United States and/or other countries. Customer is granted no right or license in any of the aforesaid trademarks, and further agrees that Customer shall not remove, obscure, or alter any proprietary notice(s) (including trademark and copyright notices) that may be affixed to or contained within the Services.
5) CUSTOMER WARRANTIES AND ACKNOWLEDGEMENTS.
a) Devices. Use of the Services may require compatible device(s), access to the internet, certain software (fees may apply), and periodic updates. Use of the Services may be affected by the performance of these factors. Company reserves the right to limit the number of Mobile Application licenses granted pursuant to this Agreement that may be used on a device. The latest version of required software may be required for certain features. Customer agrees that meeting these requirements is Customer’s responsibility.
i) Customer acknowledges and agrees that Company and/or its licensors own all legal right, title and interest in and to the Services and the Software, including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. Customer further agrees that the Services (including the Software or any other part thereof) contain proprietary and confidential information that is protected by applicable intellectual property and other laws, including but not limited to copyright. Customer agrees that Customer will not use such proprietary information or materials in any way whatsoever, except for use of the Services in compliance with this Agreement. Customer understands and accepts that no portion of the Services may be reproduced in any form or by any means, except as expressly permitted in this Agreement. Company operate the Services in compliance with the Online Copyright Infringement Liability Limitation Act (known as “OCILLA”), 17 U.S.C. §§ 512 et. seq., and Digital Millennium Copyright Act (“DMCA”), 12 Stat. 2860 (1998). It is Company’s policy to respond to any infringement notices and take appropriate actions under the DMCA and other applicable intellectual property laws. It is the policy of Company to promptly process and investigate notices of alleged copyright infringement, and take appropriate actions under the DMCA. The DMCA requires that all notices of alleged copyright infringement be in writing. When informing the designated agent of an alleged copyright infringement, the complainant must do the following:
1) Identify the copyrighted work that allegedly has been infringed. If multiple copyrighted works at a single online site are involved, please provide a list of the works on that site;
2) Describe the material that is claimed to be infringing and provide sufficient information to permit Company to locate that material;
3) Provide your contact information, including an address, telephone number, and, if available, an email address;
4) Certify or include a statement that the complainant has a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner’s agent, or law;
5) Certify that the information that you have provided Company is accurate. The complainant should attest under penalty of perjury that the complainant is authorized to enforce the copyrights that have allegedly have been infringed; and
(6) Include a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner.
ii) Before the complainant alleges an infringement, complainant should consult copyright materials to confirm that the use is, in fact, infringing. The United States Copyright Office provides basic information, here, which can assist one in determining whether an exception or defense, such as fair use, may apply to the use of your copyrighted work.
iii) Company expects all of the Users of its Service to comply with applicable copyright laws. However, if Company is notified of a claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond appropriately, which may include removing or disabling access to the material that is claimed to be infringing.
iv) Company will follow the procedures outlined in the DMCA with regard to appropriate notifications of the user and the complaining party, acceptance of counter notifications, and, where indicated, “putback” of the alleged infringing material. Refer to the United States Copyright Office for the provisions of the DMCA here.
v) Where it has been clearly established that a User is a repeat offender, Company may, in its sole discretion, terminate that User’s account. Pursuant to the DMCA, Company has designated an agent to receive notification of alleged copyright infringement occurring on web pages or computer servers.
vi) If you believe that your copyrighted work is being infringed on the Service, please notify our designated agent at: firstname.lastname@example.org
c) Content. Customer understands and accepts that all Content is the sole responsibility of the person from whom such Content originated. This means that Customer, and not Company, is solely responsible for any Content that Customer uploads, emails, transmits, stores or otherwise makes available through Customer’s use of the Services. Company does not control the Content, nor does it guarantee the accuracy, integrity or quality of such Content. Customer understands and agrees that Customer’s use of the Services and any Content is solely at Customer’s own risk.
i) The Administrator, and not the Company, is responsible for overseeing the use of the Services, monitoring User content, and maintaining the Company Community, which includes the following: (a) monitoring the activities of Users of the Services; (b) providing authorized Users access the Services and the Company Community, and removing unqualified users, such as ex-employees; (c) curating User Content for the Company Community and approving User Content for display and for publishing on Social Media Outlets of authorized Users; (d) selecting Social Media Outlets for her Company Community; and (e) removing User Content that violates the terms of this Agreement. In the event of any disputes or disagreements between members of a Company Community, the Administrator will have the final say.
ii) Subject to the terms of a Corporate Agreement, Company may, at its discretion, limit the number of Users of a Company Community or reject any piece of content uploaded to the platform. Excessive data uploads may require additional fees. Customer hereby agrees not to post content that: (a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (b) may create a risk of any other loss or damage to any person or property; (c) may constitute or contribute to a crime or tort; (d) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (e) contains any information or content that is illegal; (f) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (g) contains any information or content that you know is not correct and current. Client hereby agrees that Client and Administrator will be solely liable for the policing of any such content. Customer hereby acknowledges that Company is only acting as a passive conduit for Customer’s online distribution and publication of Customer’s Content. Company has no obligation to and will not review Customer Content. Company does not guaranty the accuracy, integrity, or quality of Customer Content and we cannot assure you that harmful, inaccurate, deceptive, offensive, threatening, defamatory, unlawful, or otherwise objectionable Customer Content will not appear on our Service.
iii) Customer shall comply with the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising. Client shall comply with all Standards of Conduct published by the Word of Mouth Marketing Association (WOMMA) applicable to a “representative” of a WOMMA member. If Customer becomes involved with any word of mouth initiative, Customer will disclose the material aspects of your commercial relationship with any marketer, including the specific type of any remuneration or consideration received.
d) Promise to Comply with Import and Export Laws. Use of the Services and Software may be subject to the export and import laws of the United States and other countries. Customer agrees to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software may not be exported or re-exported (a) into any country subject to an embargo by the United States or (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Department of Commerce Denied Person’s List or Entity List.
e) Third-Party Suppliers. The Software may include software or other code distributed under license from third-party suppliers. Company disclaims and makes no representation or warranty with respect to the third-party software, code, or any portion thereof and assumes no liability for any claim that may arise with respect to the third-party’s software or Customer’s use or inability to use the same.
f) Payments. If Client uses the platform or Services to remit payments to User, remit payments from a User to Client or otherwise remit payments from or to any entity, Customer hereby acknowledges that Company is not responsible for the timely delivery, integrity, refund, or any claim made on or related to said payment. Customer hereby releases Company from any and all liability for any data or security breach that results in Customer’s personal or payment information being compromised, and agrees to the following:
1) By entering any payment information, you warrant that you are an authorized user of the credit card or other method of payment and that the associated information entered, such as account holder name, account number, billing address, etc., is accurate and that Customer authorizes Company to charge the amount requested. Customer hereby agrees to pay any additional charge assessed by your credit card issuer or network, or other payment system operator. If a charge is declined or reversed, Customer agrees to pay a reasonable service charge and to reimburse Company for all reasonable costs of collection.
2) If Customer’s credit card issuer, network or other payment system operator does not honor a payment transaction, then Company has the right to charge the amount of any such transaction to Customer’s account or to collect the amount from Customer.
3) If payments are made to or through a third-party provider, Customer hereby agrees to hold Company harmless for any and all actions arising from or related to payments made through the third-party system.
g) Improper or Illegal Purpose. Customer hereby warrants that the Services, platform, and the Mobile Application will not be used by Customer for any improper or illegal purpose. Customer hereby warrants that Customer will not collect or harvest any personally-identifiable information, including account names, from the Service nor use the communication systems provided by the Service for any commercial solicitation purposes. You agree not to use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. Customer shall not: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) upload invalid data, viruses, worms, or other software agents through the Service; (iv) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Service; (vi) using the Service to generate spam or, (vii) bypass the measures Company may use to prevent or restrict access to the Service, including, but not limited to, registering for the Service with an email domain name not affiliated with a Company Community, if not invited by an Administrator of the Company Community.
h) Electronic Communications. Customer hereby requests and authorizes Company to use electronic means of communication as the sole means by which the Company will contact Customer. It is Customer’s responsibility to maintain a current and valid email address with Company. Customer hereby authorizes Company to use the e-mail address provided by Customer to deliver all notices required by this Agreement, any other agreement, or by law.
i) Links and Other Third-Party Materials. Certain Content, components or features of the Services may include materials or services provided by third parties and/or hyperlinks to other web sites, resources, or content. Because Company may have no control over such third-party sites and/or materials, Customer acknowledges and agrees that Company is not responsible for the availability of such sites or resources, and does not endorse or warrant the accuracy, legality, or use of any such sites or resources, and shall in no way be liable or responsible for any third-party services, advertising, products, or materials on or available from such sites or resources. Customer further acknowledges and agrees that Company shall not be responsible or liable in any way for any damages or criminal prosecution Customer incurs or alleges to have incurred, either directly or indirectly, as a result of Customer’s use and/or reliance upon any such third-party services, content, advertising, products, or materials on or available from such sites or resources.
j) Third-Party Services.
i) Products and Services. Customer hereby acknowledges that the Company does not warrant the quality, safety, or fitness for any particular purpose of any products, locations, or services provided by, or at the premises of, third parties. Customer hereby assumes any and all risk of injury or loss from the actions of third parties providing goods or services to Customer. Customer hereby agrees to hold Company harmless from any claim or demand, including reasonable attorneys’ fees, resulting from a third-party’s actions, products, services, or lack thereof. Customer hereby acknowledges that any and all information regarding price, quality, performance or promotional material regarding any good or service provided to Customer by a third- party is the sole responsibility of the third-party provider, even if the information is channeled through the Services provided by the Company. Customer hereby waives all current and future claims against Company for any and all harm caused, or contributed to, by third parties.
ii) Private information.
1) Customer hereby acknowledges that Company must use Customer information to offer the Services. Customer hereby grants permission to Company to use any information given to it by Customer, including personally identifiable information, for the purpose of delivering the Services or any other lawful purpose.
2) Customer hereby acknowledges that that Company may gather Customer data from social media sites and other platforms to assist the Company in providing the Services to Customer, and Customer hereby grants permission to the Company to gather, transmit and store Customer’s data and personal information.
3) Customer herby acknowledges that, in an effort to facilitate the Services, the Company could provide information to third parties, such as, but not limited to, Customer’s location, Customer’s plan to attend or not attend events, Customer’s preferences, Calendar, and other information that the Company might deem useful to share with third-parties to effectively perform the Services or for any other legal purpose which the Company, subject to the terms of the Corporate Agreement.
ii) Payment. Customer hereby acknowledges that Customer is solely responsible for any payments or charges assessed by third parties for their products or services.
iii) Performance. Customer acknowledges that the third party is solely responsible to Customer for providing those third-party products or services.
iv) Events and Activities. The Customer acknowledges that that the Customer is solely responsible for the repercussions of engaging in activities or going to and from locations presented to Customer via the platform. By choosing to participate in or attend any event or activity present on the Mobile Application, Customer thereby assumes all risk associated with such participation, the location thereof, and/or transportation to and from that location. Customer acknowledges that Customer has the last clear chance to avoid all harm and therefore holds Company harmless for any harm caused by Customer’s decision to use the products or services of a third party presented by Company or on the platform. Customer further acknowledges, agrees, and admits that any harm resulting from the action, non-action, location, product, service, or lack thereof by a third party is an intervening cause cutting off any and all liability of the Company resulting from the action, non-action, location, product, service, or lack thereof of a third party.
k) Protected Health Information. If Customer is a covered entity, business associate or representative of a covered entity or business associate (as those terms are defined at 45 C.F.R § 160.103), Customer agrees that it will not use any Company Service, component, function or other facility to create, receive, maintain or transmit any “Protected Health Information” (as such term is defined at 45 C.F.R § 160.103) or use the Services in any manner that would make Company (or any Company Subsidiary) a business associate of the Customer’s or any third-party’s.
l) Audit. Upon request, Client shall fully cooperate with Company to perform an audit of Client’s systems, communications, and records, for the purpose of determining compliance with this Agreement.
m) Customer Warranty and Company Disclaimer. By accepting this Agreement, Customer warrants that Customer is not barred from receiving the Services under the laws of the United States or any other applicable jurisdictions, including the country in which Customer resides or from where Customer uses the Services. CUSTOMER IS WARNED TO NEVER OPERATE ELECTRONIC DEVICES or any other mobile application WHILE OPERATING A MOVING VEHICLE. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (1) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (2) CUSTOMER’S USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (3) ANY INFORMATION OBTAINED BY CUSTOMER AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (4) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO CUSTOMER AS PART OF THE SERVICES WILL BE CORRECTED. COMPANY DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND COMPANY DISCLAIMS ANY LIABILITY RELATING THERETO. ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S DEVICE(S), COMPUTER(S), OR LOSS OF DATA THAT RESULTS FROM ANY SUCH MATERIAL(S). CUSTOMER FURTHER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE WHILE DRIVING OR OPERATING ANY MOTOR VEHICLE(S) AND/OR IN OTHER SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. COMPANY MAY PERMANENTLY OR TEMPORARILY TERMINATE, SUSPEND, OR OTHERWISE REFUSE TO PERMIT YOUR ACCESS TO THE SERVICE WITHOUT NOTICE OR LIABILITY.
n) Limitation of Liability. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES (2) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (3) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA; (4) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE CUSTOMER’S TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (5) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON THE SERVICES; AND (6) ANY OTHER MATTER RELATING TO THE SERVICES. WITHOUT LIMITATION TO THE FOREGOING, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY FAILURE OF THE SYNCHRONIZATION FUNCTIONALITY OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO ANY CUSTOMER DEVICE, OBJECT, OR PRODUCT, OR TO THE CUSTOMER, AND CUSTOMER WILL NOT RELY ON THE SOFTWARE OR ITS SYNCHRONIZATION FUNCTIONALITY. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT will COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE aggregate of the amounts paid or payable by customer to COMPANY, if any, UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
o) All provisions of this Section 5 shall survive termination of this Agreement.
6) PUBLIC BETA AND TRIAL PERIOD(S). From time to time, Company may choose to offer Beta Features as part of the Program for the purpose of providing Company with feedback on the quality and usability of the Beta Features. Customer understands and agrees that Customer’s participation in the Program is voluntary and does not create a legal partnership, agency, or employment relationship between Customer and Company, and that Company is not obligated to provide Customer with any Beta Features. Company may make such Beta Features available to Program participants by online registration or enrollment via the Services. Customer understands and agrees that Company may collect and use information from Customer’s Account, devices and peripherals in order to enroll Customer in a Program and/or determine Customer’s eligibility to participate. Customer understands that once Customer enrolls in a Program, Customer may be unable to revert back to the earlier non-beta version of a given Beta Feature. In the event such reversion is possible, Customer may not be able to migrate data created within the Beta Feature back to the earlier non-beta version. Customer’s use of the Beta Features and participation in the Program is governed by this Agreement and any additional license(s) and terms(s) that may separately accompany the Beta Features. The Beta Features are provided on an “AS IS” and “AS AVAILABLE” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from Customer’s device(s) and from peripherals (including, without limitation, servers and computers) connected thereto. Customer expressly acknowledges and agrees that all use of the Beta Features is at Customer’s sole risk. CUSTOMER ASSUMES ALL RISKS AND ALL COSTS ASSOCIATED WITH CUSTOMER’S PARTICIPATION IN ANY PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACKUP EXPENSES, COSTS INCURRED FOR THE USE OF CUSTOMER’S DEVICE(S) AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. Company may or may not provide Customer with technical and/or other support for the Beta Features. If such support is provided it will be in addition to Customer’s normal support coverage for the Services and only available through the Program. Customer agrees to abide by any support rules or policies that Company provides to Customer in order to receive any such support. Company reserves the right to modify the terms, conditions or policies of the Program (including stopping the Program) at any time with or without notice and may revoke Customer’s participation in the Program at any time. Customer acknowledges that Company has no obligation to provide a commercial version of the Beta Features, and that should such a commercial version be made available, it may have features or functionality different than that contained in the Beta Features. As part of the Program, Company may provide Customer with the opportunity to submit comments, suggestions, or other feedback regarding Customer’s use of the Beta Features. Customer agrees that in the absence of a separate written agreement to the contrary, Company will be free to use any feedback Customer provides for any purpose.
7) TERMINATION. Unless terminated as set forth herein, the term of this Agreement will commence on the Effective Date and will remain in effect for the duration of Customer's use of the Services, unless otherwise terminated in accordance with this Agreement. Company may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of Customer’s Account and/or access to the Services. Cause for such termination shall include: (a) violations of this Agreement or any other policies or guidelines that are referenced herein and/or posted on the Services; (b) a request by Customer to cancel or terminate Customer’s Account; (c) a request and/or order from law enforcement, a judicial body, or other government agency; (d) where provision of the Services to Customer is or may become unlawful; (e) unexpected technical or security issues or problems; (f) Customer’s participation in fraudulent or illegal activities; or (g) Customer’s failure to pay any fees owed in relation to the Services. Any such termination or suspension shall be made by Company in its sole discretion and Company will not be responsible to Customer or any third party for any damages that may result or arise out of such termination or suspension of Customer’s Account and/or access to the Services. In addition, Company may terminate Customer’s Account upon prior notice via email to the address associated with Customer’s Account if there is a general discontinuance or material modification to the Services or any part thereof. Any such termination or suspension shall be made by Company in its sole discretion and Company will not be responsible to Customer or any third party for any damages that may result or arise out of such termination or suspension of Customer’s Account and/or access to the Services. All waivers of liability and warranty shall survive the termination of this Agreement.
a) Customer Prohibitions. Customer agrees to not interfere with or disrupt the Services (including accessing the Services through any automated means, like scripts or web crawlers), or any servers or networks connected to the Services, or any policies, requirements or regulations of networks connected to the Services (including any unauthorized access to, use or monitoring of data or traffic thereon); plan or engage in any illegal activity; and/or gather and store personal information of any third parties to be used in connection with any of the foregoing prohibited activities.
b) Customer Indemnity and Waiver. Customer agrees to defend, indemnify and hold Company, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party, relating to or arising from: (i) any Content Customer submits, transmits, or otherwise makes available through the Services; (ii) Customer’s use of the Services; (iii) any violation by Customer of this Agreement; (iv) any action taken by Company as part of an investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred; or (v) Customer’s violation of any rights of another entity. Customer understands and accepts that Customer cannot sue Company, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors as a result of its decision to remove or refuse to process any information or Content, to warn Customer, to suspend or terminate Customer’s access to the Services, or to take any other action during the investigation of a suspected violation or as a result of Company’s conclusion that a violation of this Agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by this Agreement. This obligation shall survive the termination or expiration of this Agreement and/or Customer’s use of the Services. Customer acknowledges that Customer is responsible for all use of the Services using Customer’s Account, and that this Agreement applies to any and all usage of Customer’s Account. Customer agrees to comply with this Agreement and to defend, indemnify and hold harmless Company from and against any and all claims and demands arising from usage of Customer’s Account.
c) Company Access to Account. Company reserves the right to take steps Company believes, in its sole discretion, are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. Customer acknowledges and agrees that Company may, without liability to Customer, access, use, preserve and/or disclose Customer’s Account information and Content to law enforcement authorities, government officials, and/or a third party, as Company believes is reasonably necessary or appropriate, if legally required to do so, or if Company has a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (i) comply with legal process or request; (ii) enforce this Agreement, including investigation of any potential violation thereof; (iii) detect, prevent or otherwise address security, fraud, or technical issues; or (iv) protect the rights, property or safety of Company, its users, a third party, or the public as required or permitted by law.
d) Software Updates and Notices. Company reserves the right, in its sole discretion, to make unscheduled deployments of updates or enhancements to the Software, Mobile Application, and/or Services. In order to continue Customer’s use of the Services, such updates may be automatically downloaded and installed onto Customer’s device(s) or computer(s). These updates may include bug fixes, feature enhancements or improvements, and/or entirely new versions of the Software. Customer acknowledges and understands that during such deployments, certain functionality of the Software may be unavailable, and outages may occur. Company may provide Customer with notices regarding the Services, including changes to this Agreement, by email to any known Customer email address (and/or other alternate email address associated with Customer’s Account if provided), by regular mail, or by postings on Company’s website and/or the Services.
9) GENERAL CONTRACT TERMS: This Agreement constitutes the entire agreement of the Parties regarding the subject matter hereof, and supersedes all other agreements between them, whether oral or written, regarding the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia applicable to agreements made and to be entirely performed within the State of Georgia, without resort to its conflict of law provisions. The Parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in Georgia. The parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Company, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Company may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect to the maximum extent allowed by law. Nothing in this Agreement shall be construed as to convey to Customer any interest, title, or license in any intellectual property owned by Company, or other resource(s) used by Customer in connection with the Services. Throughout this Agreement, the masculine, feminine, or neuter genders shall be deemed to include the masculine, feminine, and neuter and the singular, the plural, and vice versa. The section headings of this Agreement are for convenience of reference only and do not form a part hereof and do not in any way modify, interpret, or construe the intentions of the parties.
10) RELATIONSHIP. Customer acknowledges that the Company is giving the Customer a tool that assists the Customer with the logistics of the Customer contracting with third parties. When using this tool to negotiate, conclude or execute any contract or legal document with any third party in the name of Customer, Customer is executing this action individually and independently and the Company does not assume, create, or incur any liability of any kind, express or implied, against or in the name of the Customer, nor otherwise act as the representative of the Customer. Customer hereby waives any claim that Company acted as an agent of Customer in procuring the services or products of third parties.
11) ELECTRONIC CONTRACTING. Customer understands and accepts that use of the Services includes the ability to enter into agreements and/or to make transactions electronically. CUSTOMER ACKNOWLEDGES THAT CUSTOMER’S ELECTRONIC SUBMISSIONS CONSTITUTE CUSTOMER’S AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. CUSTOMER’S AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS CUSTOMER ENTERS INTO ON THE SERVICES, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain Customer’s electronic records, Customer may be required to have certain hardware and software, which are Customer’s sole responsibility.