Effective Date: April 1st, 2019
We always seek to improve our Services to you, and that requires that we collect, store, share, and use information about you and your usage preferences. As we do so, we are absolutely committed to protecting your privacy and the security of your personal information.
DESCRIPTION OF SERVICES
LAWFUL BASIS FOR PROCESSING
When you enter into an agreement with us, either by accessing the Services, by executing an agreement in hard copy or by clicking “I Accept” or similar language online, we will process your Data for the purposes of fulfilling the terms of our contract with you. In that case, our processing of your Data is based on the contract, so your withdrawal of consent will only be effective after the purposes for processing that Data have been fulfilled and after we no longer have a legal obligation to keep that Data.
In all cases, we will comply with applicable law and we will cease processing your Data after the legal obligation or other necessity passes.
The Services are directed solely to persons 18 years of age or older or of children under 18 who are supervised by a parent, guardian, or other caregiver. Other than for Data collected for the specific purpose of providing the Services to users, we do not knowingly collect Data from users who are under 13. If we become aware that we have gathered Data from a person under 13, except to provide the Services to such person, then we will attempt to delete such Data as soon as possible, subject to our obligations under applicable law. If you believe that we have gathered Data from a person under 13 in contravention of this policy, please contact us at firstname.lastname@example.org.
INFORMATION WE COLLECT AND HOW WE USE IT
A. Registration Data
Data Description: Registration Data consists of the name, e-mail address, and other contact information you provide us using the Services, both when you register your account and thereafter. Registration Data also includes your username, client type (e.g., ad-supported or paid membership), and membership end date, if any.
Lawful Basis for Processing: Our lawful basis for processing Registration Data is our contract with you. We can only provide certain of the Services to you if we have the Registration Data, so we need to store and access that Registration Data during the term of our contract. Even when the Registration Data is not critically necessary to the provision of the Services, we may still process that Registration Data to facilitate our contractual interactions with you.
How We Use It and Who We Share It With: Registration Data is accessible only to us. We use it only to provide the Services to you. At times, we will share the Registration Data with third parties at your request or to fulfill requests that you make of us. We may use your Registration Data to offer goods or services to you, but only on an opt-in basis after getting your specific consent.
B. Engagement Data
Data Description: Engagement Data consists of all the information you input, record, or accept (such as digitally from an insurance company) using the Services, other than the Registration Data. For example, and not by way of limitation, Engagement Data may include the information you receive from an insurance company regarding a dispatch requested, such as the name of the insured, their location, type of vehicle, and related information. It also includes invoicing information and all other information that is proprietary to you regarding your use of the Services (other than the data that qualifies as “Usage Data” below) that is collected or processed by the Services.
Lawful Basis for Processing: Our lawful basis for processing Engagement Data is (1) our contract with you and (2) our legitimate interest in improving our Services based on the Engagement Data we receive from you.
How We Use It and Who We Share It With: Your Engagement Data is accessible only to us, to you, and where it relates directly to a party who either provides services to you or receives services from you, to that party, in which case that party will be obligated to protect the confidentiality of your Engagement Data. We do not share Engagement Data with other third parties, except at your specific request, but we may use Engagement Data to make inferences that help us provide and improve the Services. Both during the term of our agreement with you and thereafter, we may also use Engagement Data in an anonymized and aggregated format that is not identifiable to any individual, and that anonymized and aggregated information belongs solely to us to use in our sole discretion. To the extent we are required to delete any Engagement Data about you, we may still retain aggregated and anonymized information that may have originated as your Engagement Data.
C. Usage Data
Data Description: Usage Data consists of the following and similar information:
· Information about your interactions with the Services, most commonly our website, which includes the date and time of any requests you make. This also may include details of your use of Third-Party Applications and any advertising you receive via the Services.
The timing of the information you post to the Services including messages you send and/or receive via the Services and your interactions with our customer service team, but not including the content of those interactions and messages, which would be included as Engagement Data.
Technical data which may include URL information, cookie data, your IP address, the types of devices you are using to access or connect to the Services, unique device IDs, device attributes, network connection type (e.g. WiFi, 4G, LTE, Bluetooth) and provider, network and device performance, browser type, language, information enabling digital rights management, operating system, and application version.
Motion-generated or orientation-generated mobile sensor data (e.g. accelerometer or gyroscope), if any, required for the purposes of providing specific features of the Services to you.
Lawful Basis for Processing: Our lawful basis for processing Usage Data is (1) our contract with you and (2) our legitimate interest in improving our Services based on the Usage Data we receive from you.
How We Use It and Who We Share It With: Usage Data is accessible to us and to you. We do not share it with third parties, except at your specific request, but we may use Usage Data to make improvements to the Services. We may also use Usage Data in an anonymized and aggregated format that is not identifiable to any individual, and that anonymized and aggregated information belongs solely to us. To the extent we are required to delete any Usage Data about you, we may still retain aggregated and anonymized information that may have originated as your Usage Data.
D. Payment Data
1. Data Description: Payment Data is only collected when your use of the Services is subject to the payment of a fee or other charge. Payment Data is the information necessary for us to process your payments for premium Services. Payment Data will vary depending on the payment method you use (e.g. direct via your mobile phone carrier or by invoice) but will include information such as:
· Date of birth;
· Credit or debit card type, expiration date, and certain digits of your card number;
· Address and postal code; and
· Mobile phone number
2. Lawful Basis for Processing: Our lawful basis for processing Usage Data is (1) our contract with you and (2) our legitimate interest in improving our Services based on the Payment Data we receive from you.
3. How We Use It and Who We Share It With: We only use Payment Data to facilitate payment, and we only communicate it to those parties who are strictly necessary for that purpose.
A. Current and Potential Employees
We often use the services of third parties to help us to recruit new employees and independent contractors and to manage our interactions with current employees and independent contractors. We do our best to contractually ensure that these third-party service providers comply with the policies we have adopted. However, we can’t guarantee their compliance in every case.
Our lawful basis for processing Data about potential and current employees and independent contractors is our contract with them and our legitimate interest in processing that Data, both to facilitate the formation of a formal relationship and to manage that relationship once it is formed. We only use employment Data for the direct purpose of the employment or independent contractor relationship, and we cease using it as soon as that relationship ends. However, we may keep and process that Data after the relationship ends when we are required to do so by applicable law or to preserve legal claims that may arise.
B. Website Users
Users of our website who do not engage us to provide the Services are subject to the Terms of Service posted at www.toweez.com/privacypolicy. Although you may not be required to affirmatively click “I Accept” on those terms, your use of our website will be governed by those terms.
SHARING YOUR INFORMATION
Except where a specific limitation is noted above, we may share your Data as follows:
At Your Instruction. If you request us to make your Data available to a third party, and such request furthers the purposes of our Services, we will do so.
Sharing with Vendors and Service Providers. In certain cases, we use the services of third-party vendors and service providers to assist us in providing the Services. We may share your Data with such vendors and service providers solely for that purpose, and we will require those parties to abide by our privacy policies or privacy policies substantially in consonance with ours.
Service Providers. We may sometimes use a third party to provide specific Services on our behalf, including sending e-mails to our members, conducting member surveys, processing transactions or performing statistical analysis of our Services. In these cases, we may provide certain personal information, such as your name and e-mail address and other financial information necessary for the service to be provided. However, these third parties are required to maintain the confidentiality of this information and are prohibited from retaining, sharing, storing or using this information for any other purposes.
Business Transitions. In the event that we go through a business transition, such as a merger, acquisition, liquidation or sale of all or a portion of our assets, the information we have about you will, in most instances, be part of the assets transferred. We reserve the right to transfer that information in connection with such transactions without notice to you. We will not obtain your consent for such a transfer.
Legal Disclosure. We may disclose your Information if required to do so by law or in the good faith belief that such action is necessary to conform to applicable law, comply with a judicial proceeding, court order or legal process served on us, protect and defend our rights or property, or investigate, prevent or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, or violations of our terms of service.
Publicly Disclosed Data. Certain items of Data are always publicly available, such as your username, people who follow your playlists, and the playlists you follow.
If we ever plan to use any Data in the future for any other purposes not identified above and we do not have a separate lawful basis for that processing, we will only do so after obtaining your specific consent.
TECHNOLOGIES WE USE
The technologies we use for automatic Data collection may include the following:
Flash Cookies. Certain features of our Services may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from and on our Services. Flash cookies are not managed by the same browser settings as are used for browser cookies.
Web Beacons. Pages of the Services and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs. pixel tags and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an e-mail and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).
YOUR CHOICES REGARDING OUR USE AND DISCLOSURE OF YOUR DATA
We only use your Data for marketing purposes if you give us your specific consent. If, after giving your consent, you wish to opt-out of our sharing of your information with third parties for the third parties’ direct marketing purposes, or if you wish to stop receive marketing e-mails from us, please follow the instructions below. (Note that if you are a resident of the European Union, we will never use your personal data for third-party marketing purposes unless you have clicked on a box online to expressly give consent for such use.)
Receiving electronic communications from us: If you no longer want to receive marketing-related emails from us on a going-forward basis, you may opt-out of receiving these marketing-related emails by sending a request for list removal to email@example.com.
Our sharing of your Data with unaffiliated third parties for their (or their customers') direct marketing purposes: If you would prefer that we do not share your information on a going-forward basis with unaffiliated third parties for their direct marketing purposes, you may opt-out of this sharing by emailing firstname.lastname@example.org from the email that you have signed up or used in receiving the Services.
We will try to comply with your request(s) as soon as reasonably practicable. Please also note that if you do opt-out of receiving marketing-related emails from us, we may still send you messages for administrative or other purposes directly relating to your use of the Services, and you cannot opt-out from receiving those messages.
The security of your Data is important to us. We use commercially reasonable efforts to store and maintain your Data in a secure environment. We take technical, contractual, administrative, and physical security steps designed to protect Data that you provide to us. We have implemented procedures designed to limit the dissemination of your Data to only such designated staff as are reasonably necessary to carry out the stated purposes we have communicated to you.
ACCESS AND ACCURACY
You have the right to access the information we hold about you in order to verify the information we have collected in respect to you and to have a general account of our uses of that information. Upon receipt of your written request, we will provide you with a copy of your information, although in certain limited circumstances we may not be able to make all relevant information available to you, such as where that information also pertains to another user. In such circumstances we will provide reasons for the denial to you upon request. We will endeavor to deal with all requests for access and modifications in a timely manner.
We will make every reasonable effort to keep your information accurate and up-to-date, and we will provide you with mechanisms to update, correct, delete or add to your information as appropriate. As appropriate, this amended information will be transmitted to those parties to which we are permitted to disclose your information. Having accurate information about you enables us to give you the best possible service.
You can help by keeping us informed of any changes such as a change of your personal contact information. If you would like to access your information, if you have any questions, comments or suggestions of if you find any errors in our information about you, please contact us at email@example.com. If you have a complaint concerning our compliance with applicable privacy laws, we will investigate your complaint and if it is justified, we will take appropriate measures.
Toweez, Inc. Terms of Service
Effective Date: April 1st, 2019
1. Welcome and Introduction
Welcome to Toweez! Toweez is a software application that helps our clients manage portions of their dispatching and invoicing functions. It may include data interfaces between our clients and insurance companies with whom they do business. In this Agreement, all these functions are included in the term “Services.” The term “Services” also includes all of Toweez’s mobile applications and related website, widgets, tools, software, personalized content, and other applications, as well as any other services and tools now known or later developed by Toweez.
We hope you will carefully read through these Terms of Service (“Agreement”), since it is a binding agreement between you and Toweez, Inc. (“Toweez,” “Company,” “we,” “us,” “our”), which owns and operates the Services. It is effective when you sign up or otherwise use any of the Services or access any content or material that is made available by Toweez through the Services (the “Content”).
For purposes of clarity, the term “Services” includes all functionality made available through the Services, such as the help desk system, connectivity API’s, and related support services. Any new features which augment or enhance the current Services, including the release of new features or products, are also governed by this Agreement. Company reserves the right at any time to change or discontinue the Services with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension, or discontinuance of any of the Services.
You may sign up using an online form, paper agreement, or other paper or electronic means acceptable to Toweez (“Order Form”). The Order Form is incorporated into this Agreement, and you agree to its provisions as if it were fully set forth herein. To the extent any provision of a duly executed Order Form accepted by Toweez conflicts with the provisions of this Agreement, the provisions of the Order Form will prevail.
When you visit our website or send e-mails to us, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on our website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
3. Received Materials
If you send us any comments, materials, or letters including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), those Received Materials may be deemed by us to be non-confidential and free of any claims of proprietary or personal rights. Company shall have no obligation of any kind with respect to such Received Materials, and Company will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, Company is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, without compensation or any other obligations to anyone, including you.
4. Changes to this Agreement
At certain times, we may in our discretion need to make revisions to this Agreement. If we do, we will notify you by posting notices on the website or by e-mailing you, as appropriate in the circumstances. If you continue using the Services after the effective date of the changes, you will be deemed to have accepted the revisions. If you do not agree to the revisions, you may terminate this Agreement by notifying us via e-mail at firstname.lastname@example.org. Any other changes to this Agreement must be in writing signed by both parties.
5. Services, Payment, and Term
Certain of our Services are offered without charge. For others, you are required to pay a subscription fee (“Fee”). The description of which Services are free and which Services require the payment of Fees is set forth in the Order Form describing the Services when you sign up, and the Services and the Fees payable may change from time to time with or without notice.
When you sign up using a credit card or other payment method, you authorize us to make the charges disclosed to you at the time you sign up, including recurring payments, where applicable.
The term of this Agreement shall be the period set forth in the Order Form, or if no term is set forth in the Order form, a period of one year, with renewal occurring automatically at the end of each year unless a party notifies the other not less than 30 days prior to the end of the then-current term that it intends to terminate this Agreement.
We do not issue refunds. If you cancel a subscription, you will not be entitled to a pro rata refund of the Fees paid for any period in which you are not using the Services. We may make exceptions to this policy at certain times in our sole and absolute discretion without waiving any of our rights under this section.
6. Trials and Beta Testing
From time to time, we or others on our behalf may offer access to beta models of the Services or trials of paid subscriptions for a specified period without payment or at a reduced rate (each, a “Trial”). We reserve the right, in our absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law. Any Trial version of any software or service is provided without any warranty whatsoever.
7. License and Acceptable Use
Company hereby grants you, subject to this Agreement, a limited non-exclusive, non-sublicensable, non-transferable, license to use the Services. You may not download any portion of the website or use of any Services other than for your own personal use. You may not use any data mining, robots, or similar data gathering tools or otherwise exploit your access to the Services for any commercial purpose. You may not use any of the trademarks, logos, or other proprietary graphics without express written permission, which may denied in Company’s absolute discretion. Company’s logos and product and service names are trademarks of Company. All other trademarks appearing on the website or in connection with the Services are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made.
In addition to any other things that might constitute a misuse of the Services, you must not, and must not attempt to do the following things:
modify, alter, tamper with, repair or otherwise create derivative works of any of the Services;
reverse engineer, disassemble or decompile the software used to provide or access the Services, or attempt to discover or recreate the source code used to provide or access the Services, except and only to the extent that the applicable law expressly permits doing so;
use the Services for research or benchmarking or any related endeavor with the intent of creating a competing or similar product;
sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
remove, obscure or alter any proprietary rights notice pertaining to the Services;
access or use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through Company; (iv) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (v) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (vi) abuse, harass, stalk or otherwise violate the legal rights of a third party;
interfere with or disrupt servers or networks used by Company to provide the Services or used by other users to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any of the Services;
access or attempt to access Company’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means;
cause, in Company’s sole discretion, inordinate burden on the Services or Company’s system resources or capacity; or
share passwords or other access information or devices or otherwise authorize any third party to access or use the Services.
8. Third-Party Applications
The Services may be integrated with third-party applications, websites, and services, such as the systems of the insurers with whom you do business (“Third Party Applications”) to make available content, products, and/or services to you. These Third- Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third-Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third-Party Application or for any transaction you may enter into with the provider of any such Third-Party Applications.
9. User-Generated Content
In the course of using the Services, you or the insurance companies with whom you do business may use the Services to post, upload, contribute, transfer, or communicate (“post”) content (which may include, for example, pictures, text, messages, information, and/or other types of content) (“User Content”). For the avoidance of doubt, “User Content” includes any such content posted to any support community we may establish, as well as to any other part of the Services.
You promise that, with respect to any User Content you post, (1) you have the right to post such User Content, and (2) such User Content, or its use by Company as contemplated by the Agreement, does not violate the Agreement, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by Company or any artist, band, label, entity or individual without express written consent from such individual or entity.
We will not monitor, review, or edit User Content, unless you use the Services to post User Content that violates the provisions of this Agreement, in which case we reserve the right to remove or disable access to any User Content that, in our sole discretion, violates the Agreement. We may take these actions with prior notification to you.
You are solely responsible for all User Content that you post. We are not responsible for User Content, nor do we endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST US RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.
10. Your License to Us
In consideration for the rights granted to you under this Agreement, you grant us the right (1) to allow the Services to use the processor, bandwidth, and storage hardware on your device in order to facilitate the operation of the Services, (2) to provide advertising and other information to you, and (3) to allow our business partners to do the same. In any part of the Service, the Content you view, including its selection and placement, may be influenced by commercial considerations, including agreements with third parties. Some Content licensed, provided to or otherwise made available by us (e.g. podcasts) may contain advertising as part of the Content. In such cases, we will make such Content available to you unmodified.
You grant us a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, irrevocable, fully paid, worldwide license for the Term to use, reproduce, make available to third parties the User Content for the purposes of meeting our obligations under this Agreement. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content.
11. Your Account
You are responsible for maintaining the confidentiality of any account information, including your login and password, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Company reserves the right to refuse service, terminate accounts, remove or edit content in its sole discretion. You are also solely responsible for the accuracy and currency of the data entered into the Services under your user account. You agree to indemnify and hold Company harmless from and against any claim related to content, accuracy, or currency of the information you provide through the Services.
Company may provide links to other websites or resources. Because we have no control over such sites and resources, you acknowledge and agree that Company is not responsible for the availability or content of such external sites or resources. You may create a link to the Website so long as the link does not portray Company or its products or services in a false, misleading, derogatory, otherwise offensive manner. You may not use any of Company’s logos, trademarks, or other proprietary graphics as part of your link.
13. Third-Party Rights
You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of this Agreement and have the right to enforce this Agreement directly against you. Other than as set out in this section, this Agreement is not intended to grant rights to anyone except you and Company, and in no event shall the Agreement create any third-party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement are not subject to the consent of any other person.
If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and Company only, not with Apple, and Apple is not responsible for the Services and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Services and/or your possession and use of the App infringe that third-party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the Services. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement. You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
14. Copyright and Title
The Services and all copyrights, trade secrets and other proprietary rights therein, including any derivative work, are, and will remain the sole property of Company, regardless of the use made by you; and are protected by certain United States and international copyright laws and trademark laws. The Services are licensed, not sold, to you. This Agreement confers no title of ownership in the Services and are not a sale of any rights in the Services, including any intellectual property rights related thereto.
Company warrants that the Services, with the exception of any beta trial, and all elements thereof do not infringe the intellectual property rights of any third party and agree to hold you harmless and indemnify you with respect to any final judgment obtained by a third party based on a claim that the Services infringe on the intellectual property rights of such third party.
16. Disclaimer of Warranty
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, ACCURACY, OR TRUTHFULNESS OF ANY INFORMATION PROVIDED BY OR WITH RESPECT TO THE SERVICES. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE AND/OR DELIVERY OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in this Agreement are for your benefit only.
17. Limitation of Liability
IN NO EVENT WILL COMPANY, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU DURING THE 12-MONTH PERIOD PRIOR TO SUCH CLAIM ARISING. THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY.
18. Service Limitations and Modifications
Company will make reasonable efforts to keep the Services operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, we reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature thereof. You understand and agree that Company has no obligation to maintain, support, upgrade, or update the Services, or to provide all or any specific content through the Services. Company and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.
19. Term and Termination; Survival
This Agreement will continue to apply to you until terminated by either you or Company. However, you acknowledge and agree that the perpetual license granted by you in relation to User Content is irrevocable and will therefore continue after expiry or termination of any of this Agreement for any reason. We may terminate this Agreement or suspend your access to the Services at any time, including in the event of your actual or suspected unauthorized use of the Services and/or Content, or non-compliance with this Agreement. You may terminate this Agreement at any time.
Any sections of this Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreements, shall survive termination.
20. Governing Law and Jurisdiction
The Services are operated by Company from its offices in Utah in the United States. The validity, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without reference to choice of law principles. You expressly agree that exclusive jurisdiction for any claim or dispute with Company, this Agreement, or relating in any way to your use of the Services resides in the federal and state courts located in the State of Utah, and you do hereby submit to and consent to jurisdiction and venue in the courts of that state. You agree to waive any defense pertaining to jurisdiction and venue. In the event any provision hereof shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
21. Attorney Fees
In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
22. Entire Agreement
This Agreement is a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
24. Severability; Binding Effect
If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be impaired. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.
25. Force Majeure
Company will not be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Company’s reasonable control.
26. Defense and Indemnification
In addition to the other provisions of this Agreement, you agree to defend Company from any actual or threatened third party claim arising out of or based upon your use of the Services, your failure to comply with any of the provisions of applicable law, and your breach of any of the provisions of this Agreement. In addition, you agree to indemnify, defend, and hold harmless Company from and against: (a) all damages, costs, and attorneys’ fees finally awarded against Company in any proceeding under this section; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Company in connection with the defense of such proceeding (other than when you have accepted defense of such claim); and (c) if any proceeding arising under this section is settled, any amounts to any third party agreed to by you in settlement of any such claims.
Company does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates this Agreement and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. Such notices can be reported by contacting us at the address below. We reserve the right to delete or disable content alleged to violate this Agreement and to terminate repeat infringers. Our contact information for notice of alleged copyright infringement is:
755 S Main St Ste 4-243, Cedar City, UT 84720