THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 16th 2018. It is effective between You and Us as of the date of You accepting this Agreement.
Table of Contents
2. Free Trial
3. Our Responsibilities
4. Use of the Services and Content
5. Prohibited Activities
6. Trademarks and Copyrights
7. Fees and Payment for Purchased Services
8. Proprietary Rights and Licenses
10. Representations, Warranties, Exclusive Remedies and Disclaimers
12. Limitation of Liability
13. Term and Termination
“Account” means Your unique email address and password used to access the Services.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Beta Services” means Our services that are not generally available to customers.
“Collaborator” means a person other than You who is a registered User and whom you have invited to work on a Project that you own.
“Content” means information obtained by Us or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via websites maintained by us or login to Conducttr.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-Conducttr Applications” means a Web-based application, social networking service, telecommunications service, mobile app or other software application (including Arduino sketches and such like) that is provided by You or Us or a third party and interoperates with Conducttr.
“Order Form” means an ordering document or web page specifying the Services to be provided hereunder that is entered into between You and Us including any addenda and supplements thereto. By entering an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Project” means anything created by You with and hosted by Conducttr.
“Purchased Services” means Services that You or Your Affiliate purchase using an Order Form, as distinguished from those provided pursuant to a free trial and a functionality-limited free service.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Content and Non-Conducttr Applications.
“User” means an individual registered to use Our Services.
“Website” means services and products offered by us and information at conducttr.com, tstoryteller.com, the community, forum and blog.
“We,” “Us” or “Our” and words of similar import refer to Transmedia Storyteller Ltd located at 43 Sanderling Lodge, London, E1W 1AJ, United Kingdom.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-Conducttr Applications.
2. GDPR-related terms
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
“Personal Data” means that data, meeting the definition of “personal data” as defined in Article 4 of the GDPR, that is provided by You to Transmedia Storyteller Ltd in order to perform the processing as defined in Schedule 1 of this Agreement.
“Sub-Processor” means a natural or legal person, public authority, agency or body other than the data subject, Controller and Processor who, under the direct authority of the Processor, are authorised to process Personal Data for which You are the Controller
2.1 Scope and Roles
2.1.1 This agreement applies to the processing of Personal Data, within the scope of the GDPR, by Transmedia Storyteller Ltd (Processor) on behalf of the You (Controller).
2.1.2 For purposes of this agreement, You and Transmedia Storyteller Ltd agree that You are the Controller of the Personal Data and Transmedia Storyteller Ltd is the Processor of such data. In the case where You act as a Processor of Personal Data on behalf of a third party, Transmedia Storyteller Ltd shall be deemed to be a Sub-Processor.
2.1.3 These Terms do not apply where Transmedia Storyteller Ltd is a Controller of Personal Data.
2.2 Obligations and rights of the controller
2.2.1 Taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the Controller shall implement appropriate technical and organisational measures to ensure and to be able to demonstrate that Processing is performed in accordance with the GDPR. Those measures shall be reviewed and updated where necessary.
2.2.2 Where proportionate in relation to Processing activities, the measures referred to in paragraph 5.1 shall include the implementation of appropriate data protection policies by the Controller.
2.2.3 The Controller shall implement appropriate technical and organisational measures for ensuring that, by default, only Personal Data which are necessary for each specific purpose of the Processing are processed. That obligation applies to the amount of Personal Data collected, the extent of their Processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default Personal Data are not made accessible without the individual’s intervention to an indefinite number of natural persons.
2.3 Obligations of the Processor
2.3.1 process the Personal Data only as agreed on the terms here;
2.3.2 ensure that persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
2.3.3 take all measures required pursuant to Article 32 of the GDPR, namely to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the rights and freedoms of natural persons including, as a minimum, the measures set out in Schedule 2 of this Agreement;
2.3.4 at the choice of the Controller, delete or return all the Personal Data to the Controller after the end of the provision of services relating to Processing, and delete existing copies unless applicable law requires storage of the Personal Data;
3. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU MAYNOT BE ABLE TO TRANSFER DATA MADE OR OBTAINED DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE VERSION TO INDIE VERSION OR FROM INDIE VERSION TO FREE VERSION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, OR YOUR TRIAL LAPSES TO THE FREE VERSION THEN YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 10 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the Author Guide and other Content during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
4. OUR RESPONSIBILITIES
4.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 5:00 a.m. Saturday and noon a.m. Monday UK time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Conducttr Application, or denial of service attack.
We may modify the functionality of the Services and its application programming interface at any time in Our sole discretion, and such modifications could result in a loss of Your Data associated with that functionality. Your use of the Services is at Your sole risk.
4.2 Tracking and Analysis. We may track and analyze Your use of Our Services for the purpose of helping Us improve both Our Services and Your experience in using the Services. We may disclose such data about Your use of the Service (“Usage Statistics”) to third parties for the purpose of assisting Us in such tracking and analysis, or as required by law. Except when required by law, in disclosing Usage Statistics to a third party, We will make such Usage Statistics anonymous so as to not disclose Your identity to such third party.
4.3. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 9.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
4.4 Data Storage. The amount of Your Data which We retain and/or the time period for which We retain it at no charge, may be limited in Our discretion.
4.5 Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
5. USE OF SERVICES AND CONTENT
5.1 Subscriptions. Unless otherwise provided in the applicable Order Form, Services and Content are purchased as annual subscriptions payable in advance and non-refundable except during the first 14 days from first registration during which time a full refund is available.
5.2 Usage Limits. Services and Content are subject to usage limits. Unless otherwise specified this includes (a) a limit on the number of Collaborators, and you may not invite to your Projects more that number of Users (b) a limit on audience records, and your Project may not contain more than that number in your Project’s Audience table (b) a limit on interactions, and your Project may not exceed that monthly limit. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 7.2 (Invoicing and Payment).
5.3 Your Responsibilities. You will (a) be responsible for Your compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non-Conducttr Applications with which You use Services or Content.
5.4 Eligibility. By using the Services, you represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 13 years old or older at the time of registration; and (d) your use of the Services does not violate any applicable law or regulation. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of any of the Services.
5.5 One Account. You agree to use only one Account when using the Services. You agree to not create additional Accounts as a method of participating and/or engaging in any restricted behavior as defined within the terms of this Agreement or behavior that we deem inappropriate at any time. We reserve the right to determine what constitutes “inappropriate” behavior. Any User found creating one or more additional Accounts or engaging in inappropriate behavior may have their Account deleted. Additionally, we reserve the right to permanently ban offenders from the use of all Services. You agree that your Account is non-transferable.
5.6 Password. When you become a User, You will be asked to choose a password. You are solely responsible for any and all use of your account. You are entirely responsible for maintaining the confidentiality of your password and agree not to share it with any other person. You agree not to use the username or password of another User at any time. You agree to notify us immediately if you suspect any unauthorized use of your Account or access to your password.
5.7 Responsibility. Your interactions with other users on the Services or with advertisers, clients and other third parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings,are solely between you and the other user or the advertiser. You agree that we are not responsible for any loss or damage incurred as the result of any such dealings or with respect to any other user’s use or disclosure of your personally identifiable information. If there is a dispute between you and any third party (including any other user), we are under no obligation to become involved; however, we reserve the right to monitor disputes between you and other users.
5.8 Your Content. You understand and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (“content”) are the sole responsibility of the person from which the content originated. This means that You, and not Us, are entirely responsible for all content that you upload, post, transmit, or otherwise make available via the Service. We do not control the content posted via the Service, and, as such, do not guarantee the accuracy, integrity or quality of such content. You understand and agree that under no circumstances will We be liable in any way for content, including, but not limited to, for any errors or omissions in any content, errors or omissions in the timing of the transmission and publication of the content, or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available via the Service. You acknowledge that We do not pre-screen content, but that We shall have the right (but not the obligation) in Our sole discretion to refuse or move any content that is available via the Service. 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. By posting content in connection with the use of Services, you represent and warrant that: (a) you own all content posted by you on the Service or otherwise have the right to grant the license set forth in this section, and (b) your content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person. You may only upload content that is in the public domain, is your original work of authorship or for which you have authorization to display. If you are unsure about the ownership of content, do not post it.
5.9 General Practices Regarding Storage. You acknowledge that we may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that messages, postings or other uploaded and performance data will be retained by the Services, the file size of content, the maximum disk space that will be allotted on our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You agree that we have no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Services.
5.10 Modifications to Service. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, any of the Services with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
5.12 Usage Restrictions. You will not (a) make any Service or Content available to anyone other than You, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
5.13. Removal of Content and Non-Conducttr Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your Project. If We receive information that a Non-Conducttr Application may violate an applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Conducttr Application or modify the Non-Conducttr Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Conducttr Application until the potential violation is resolved.
6. PROHIBITED ACTIVITIES.
6.1 Compliance with Law. You will use the Services in a manner consistent with any and all applicable laws and regulations.
6.2 User Interaction. You will not use any information obtained from the Services in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent.
6.3 No Disruption. You will not: (a) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services, or (b) introduce software or automated agents to the Services so as to produce multiple Users, generate automated messages, or to strip or mine data from the Services.
6.4 Prohibited Content. You may not post any illegal content on or via the Services. We may also, from time to time, prohibit the posting of certain types of materials. We generally prohibit content that in our sole discretion: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) bullies, harasses or advocates stalking, bullying, or harassment of another person; (iii) contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website; (iv) involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing, or “spamming,”; (v) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vi) promotes, copies, performs or distributes an illegal or unauthorized copy of another person’s work that is protected by copyright or trade secret law; (vii) is involved in the exploitation of persons under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18; (viii) provides instructional information about or promotes illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (ix) solicits passwords or personally identifying information for commercial or unlawful purposes from other Users; (x) except in connection with a Project, involves commercial activities and/or promotions such as campaign, sweepstakes, barter, advertising, or pyramid schemes; (xi) contains viruses, trojan horses, worms, time bombs, corrupted files, or similar software; (xii) includes a photograph or video of another person that you have posted without the person’s consent; or (xiii) otherwise violates the terms of this Agreement or creates liability for TSL .
6.5 Review of Content by Us. We have the right (but not the obligation) to review any content and delete any content that in our sole judgment violates this Agreement or which may be offensive, illegal, violate the rights, harm, or threaten the safety of any user or any other person, or create liability for us or any user.
6.6 Anti-Spam. You may not upload, post or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, such as (a) sending mass email to recipients who haven’t requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your content by posting multiple submissions in public forums that are identical. Also defined as “spam” are any videos or other content involving affiliate marketing, network marketing, cash gifting, multi-level marketing, phishing, or any videos or content that a reasonable person would consider to be a scam. Further, “spam” can include any content that We deem in our sole discretion is not entertaining or informative. You may not use Service to: (a) send unsolicited content to anyone without their permission, including but not limited to sending e-mail or mobile text messages to addresses from any purchased or harvested e-mail list (b) send content that may harass, embarrass, defame, abuse, threaten, or otherwise violate the legal rights of any individual, group, or organization; (c) send content that contains a computer virus or other code or files that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group, or organization; (d) perform or promote illegal activities such as starting or forwarding chain letters, illegal contests or promotions, or any other activity that is illegal; (e) impersonate, use the name of (without expressed permission), or misrepresent any real-world individual, group, or organization.
Every email sent through the Service must include unsubscribe information. We shall add an unsubscribe link to the bottom of each email sent through the Service.
We will attempt to automatically honor unsubscribe requests. In any event that this does not work, you must honor in a timely manner all unsubscribe requests sent directly to you.
7. TRADEMARKS & COPYRIGHTS
7.1 Trademarks. The trademarks, service marks and logos (the “Trademarks”) used and displayed on the Website or in connection with the Services are registered and unregistered Trademarks of Transmedia Storyteller Ltd or its licensors. Nothing on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark or any other TSL intellectual property displayed on the Website. We aggressively enforce our intellectual property rights to the fullest extent of the law. The name Conducttr (or misspellings of Conducttr and our logo with red hexagon and internal “C” ) and any other Trademarks shall not be used in any way, including in advertising or publicity pertaining to distribution of materials on the Website, without prior written permission from us.
7.2 Copyrights. The copyright in all materials provided on the Website is held by Us or by the original creator of the material. Except as stated herein, none of the materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of Us or the copyright owner; unless the content has been explicitly marked with Creative Commons or similar permission. Permission is granted to download one copy of the materials on this Website on a single computer for Your personal or internal business use only provided that You do not modify the materials and that you retain all copyright and other proprietary notices contained in the materials. This permission terminates immediately if you breach this Agreement. You may not “mirror” any material contained on the Website without our express written permission. Any unauthorized use of the materials contained on the Website may violate copyright laws, trademark laws, the laws of privacy and publicity and/or communications regulations and statutes. All Content and functionality on the Website or relating to the Services, including text, graphics, logos, icons, and images and the selection and arrangement thereof, are the exclusive property of TSL or its licensors and is protected by U.S., European and international copyright laws. All rights not expressly granted are reserved.
8. FEES AND PAYMENT FOR PURCHASED SERVICES
8.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form (a) fees are based on Services and Content purchased and not actual usage, (b) payment obligations are non-cancellable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant subscription term.
8.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
8.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 7.2 (Invoicing and Payment).
8.4. Suspension of Service. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 14.4 (Notice), before suspending services to You.
8.5. Payment Disputes. We will not exercise Our rights under Section 7.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
8.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 7.6, We will charge You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
8.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
9. PROPRIETARY RIGHTS AND LICENSES
9.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
9.2. License by Us to Use Content. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
9.3. License by You to Host Your Data and Projects. You grant Us and Our Affiliates a worldwide, limited- term license to host, copy, transmit and display Your Data, and any Non-Conducttr Applications and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-Conducttr Application or program code.
9.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
9.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate United States federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
10.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally 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. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
10.2. Protection of Confidential Information. The Receiving Party will 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) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
10.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, 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 will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
11. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
11.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
11.2. Our Warranties. We warrant that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 13.3 (Termination) and 13.4 (Refund or Payment upon Termination).
11.3. Disclaimers. We are not responsible for any incorrect or inaccurate Content posted on the Services, whether caused by Users or by any of the equipment or programming associated with or utilized in the Services. We are not responsible for the conduct, whether online or offline, of any User of the Services. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or User communication or content. We are not responsible for any problems or technical malfunction of any hardware and software due to technical problems on the Internet, on social networks, telecommunications networks or at the website or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Services. Under no circumstances shall We be responsible for any loss or damage, including personal injury or death, resulting from use of the Services or from any content posted on the Website or transmitted to users, or any interactions between Users of the Services, whether online or offline.
THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE. WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
12.2. Indemnification You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
13. LIMITATION OF LIABILITY
13.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 7 (FEES AND PAYMENT FOR PURCHASED SERVICES).
13.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
14. TERM AND TERMINATION
14.1 Term of Agreement. This Agreement commences on the date You first register for Our Services and shall remain in full force and effect while you use the Services or continue to be a User. Even after termination of this Agreement, all obligations will remain in effect until fully performed.
14.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
14.3. Termination. A party may terminate this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
14.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 14.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 15.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
14.5. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make the Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
14.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Your Data,” “Who You Are Contracting With, Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.
15.1 Governing Law. This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
15.2 Entire Agreement; Waiver; Headings. This Agreement constitutes the entire agreement between You and Us regarding the use of the Services. The failure by Us to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding this Agreement. You may also receive a copy of this Agreement (in ASCII text format) by please contacting member support.
15.3 No Third-Party Beneficiaries. You agree that there shall be no third-party beneficiaries to this Agreement.
15.4 Notice. We may provide you with notices, including those regarding changes to the Agreement, by email, regular mail or postings on the Service.
15.5 Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
15.6 Investigation; Enforcement. We reserve the right (but have no obligation) to investigate and take appropriate legal action at its sole discretion against you if you violate this provision or any other provision of this Agreement, including without limitation, removing the prohibited Content from the Services, terminating your Account, reporting you to law enforcement authorities, and taking legal action against you.
15.7 Assignment. You may not assign this Agreement. All rights you may have under this Agreement automatically terminate upon your death.