This Master Services Agreement (this "Agreement") governs your use of Service Objects' service offerings.
In order to use any of the Service Offerings (individually a "Service Offering" and collectively defined as any Service Objects Applications Programming Interface (individually and collectively the "Service Objects API" or "DOTS Web Service"), access the information contained on any Service Objects website (individually and collectively the "Website"), make use of the services provided by Service Objects (individually and collectively the "Services"), make use of a variety of software, data and other content and printed and electronic documentation we may make available to you, for your installation, copying and/or use in connection with the Services from time to time (the "Service Objects Properties"), and all technology, software, functions, content, images, materials and other data or information provided by us or any of our affiliates, suppliers, or licensors in connection therewith). You must first read this Agreement and accept it. You may not avail yourself of any of the Service Offerings if you do not accept this Agreement and the terms therein. You accept the terms of this Agreement by clicking to accept, by agreeing to the terms of this Agreement in the user interface for any Service Offering, or by using any of the Service Offerings. In the latter case, you understand and agree that we will treat your use of any of the Service Offerings as acceptance of the terms from that point onwards. BY USING ANY OF THE SERVICE OFFERINGS YOU CONSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT PLEASE DO NOT USE ANY OF THE SERVICE OFFERINGS.
We reserve the right to change this Agreement from time to time without notice by posting those changes to the Website. When we do, we will also revise the "last update" date of this Agreement. Your continued use of any of the Service Offerings after such posting will constitute acceptance by you of such amendments.
1. Grant of Rights to Use Services
1.1 Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Service Offerings, Service Objects hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term of this Agreement in and under our intellectual property rights, to access and use the Service Offerings solely in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any new features provided by Service Objects that augment or enhance any of the current Service Offerings shall also constitute "Service Offerings" and shall be subject to this Agreement. You may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer any of the Service Offerings for any purpose whatsoever. You may not allow any unauthorized third party to access any of the Service Offerings for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by Service Objects.
1.2 You shall not under any circumstances: (i) use information from any of the Service Offerings to build a database for resale or for access by a third party in competition with the Services; (ii) allow information from any of the Service Offerings to be used in any way to verify information from a third party that resells data in competition with Service Objects; or (iii) provide access to or information from any of the Service Offerings to a third party that resells data in competition with Service Objects or to a third party that plans to resell to a further third party access to any of the Service Offerings or information obtained from any of the Service Offerings.
1.3 You may create software applications or websites (individually an "Application" and collectively the "Applications") that interfaces with the Service Objects API and/or Services. You acknowledge that we may revise, delete or republish any facet or feature of any of the Service Offerings from time to time, and that it is your responsibility to ensure that any communication you make to or via any of the Service Offerings are compatible with then-current Service Offerings. Service Objects will attempt to inform you of any such changes with reasonable notice so you can adjust your Applications, but we are under no obligation to do so.
1.4 You and any Application that you may build, distribute, or otherwise create may communicate with the Service Objects API and/or Services, or make queries (hereinafter referred to as "Queries") to the Services, at any time that the Services are available provided that those Queries do not violate the terms of this Agreement.
1.5 Provided that you comply with the terms of this Agreement you may use the Service Objects API and/or Services to execute Applications owned or lawfully obtained or licensed by you. You are solely responsible for your Applications, including any data, text, images or content contained therein.
1.6 You are personally responsible for all traffic originating from your Applications using your license key(s) to all the Service Offerings. As such, you should protect your license keys and security credentials. Actions taken using your account or credentials shall be deemed to be actions taken by you, with all consequences including additional fees, service termination, civil and criminal penalties.
1.7 We may make available to you, for your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (the "Service Objects Properties"). Subject to your acceptance of and compliance with this Agreement, ongoing compliance with this Agreement with respect to the subject Services, and payment if and as required for your right to use the subject Services, Service Objects hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term of this Agreement in and under our intellectual property rights in the Service Objects Properties, only to install, copy and use the Service Objects Properties solely in connection with and as necessary for your use of the Services, solely in accordance with the terms and conditions of this Agreement.
(a) The Service Objects Properties include, without limitation:
- The Website;
- Service Objects web portals;
- The Service Objects API; and
- Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of any facet of the Services and its related Service Objects API, Website and technology.
(b) Service Objects may make available under another license agreement, such as an open source agreement, additional content or software. Any such content or software will be marked with such a license indicating the usage rights available for that content or software. For such content or software released pursuant to an open license, Service Objects encourages you to modify, alter, tamper with, repair and/or create derivative works consistent with such license. Such content or software may include:
- Developer tools, such as software development kits or sample code, for use in connection with the Service Objects API; and
- Articles and documentation for use in connection with the use and implementation of the Service Objects API (collectively, "Documentation").
(c) Except as may be expressly authorized under this Agreement:
- You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service Objects Properties.
- You may not, and may not attempt to, reverse engineer, disassemble, or decompile any of the Service Offerings, or apply any other process or procedure to derive the source code of any software included in any of the Service Offerings.
1.8 The rights granted by us in this Agreement with respect to the Service Offerings are nonexclusive, and we reserve the right to: (i) act as a developer of products or services related to any of the products that you may develop in connection with any of the Service Offerings or via your use of any of the Service Offerings; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with your Applications.
2. Term, Termination and Suspension
2.1 The term ("Term") of this Agreement will commence once you accept this Agreement as provided above. This Agreement will remain in effect until terminated by you or Service Objects in accordance with this Section 2. Thereafter, the Term of this Agreement will automatically renew for additional periods in accordance with any subsequent payment term selected by you, or by your continued use of the Services, unless earlier terminated under Section 2.2.
2.2 You may terminate this Agreement for any reason or no reason at all, at your convenience, by closing your account for the Services. Upon termination your rights and obligations for the Term shall cease, except for your payment obligations for this Agreement, which shall become fully payable upon termination, except as expressly provided otherwise in this Agreement.
2.3 Except as otherwise expressly provided in this Agreement, we may suspend your right and license to use all or any of the Service Offerings or terminate this Agreement in its entirety (and, accordingly, cease providing any of the Service Offerings to you), for any reason or for no reason, at our discretion at any time by providing you 30 days' advance notice in accordance with the notice provisions set forth in Section 10 below. If Service Objects determines that providing advance notice would negatively impact Service Objects' ability to provide any of the Service Offerings, Service Objects may suspend your right and license to use any of the Service Offerings or terminate this Agreement in its entirety (and, accordingly, cease providing any of the Service Offerings to you), with no notice.
2.4 We may suspend your right and license to use any of the Service Offerings or terminate this Agreement in its entirety (and, accordingly, your right to use the Services), for cause effective as set forth below:
2.4.1 Immediately upon our notice to you in accordance with the notice provisions set forth in Section 10 below if (i) there is an unusual spike or increase in your use of any of the Service Offerings for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of any facet of any of the Service Offerings; (ii) we determine, in our sole discretion, that our provision of any facet of any of the Service Offerings to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iii) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
2.4.2 Immediately and without notice if you are in default of any payment obligation to us or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism.
2.4.3 After 5 days following our provision of notice to you in accordance with the notice provisions set forth in Section 10 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5-day period.
2.5 Effect of Suspension or Termination.
2.5.1 Upon our suspension of your use of the Service Offerings, in whole or in part, for any reason: (i) fees will continue to accrue for the Service Offerings that are still in use by you, notwithstanding the suspension; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Service Offerings; and (iii) all of your rights with respect to the Service Offerings shall be terminated during the period of the suspension.
2.5.2 Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations to us you have incurred through the date of termination; and (ii) all of your rights under this Agreement shall immediately terminate.
2.6 In the event this Agreement expires or is cancelled or terminated for any reason, Sections 4, 6, 7, 8, 9, 10 and 11 and any applicable definitions will survive any such expiration, cancellation or termination.
3. Downtime and Service Credits; Security
3.1 We may award service credits (referred to as "Service Credits") to you for unanticipated, unscheduled downtime or unavailability of any facet of any of the Service Offerings, as set forth in the Service Level Agreement. Assignment of Service Credits provides only a limited, non-transferable, non-sublicensable, revocable license to use such Service Credits to access like-Services that we expressly make available for use with the Service Credits. Service Credits have no monetary value and do not constitute currency or property of any type. Service Credits may not be sold or transferred, and cannot be exchanged for cash or for any other goods or services. Only paying customers in good standing with recurring month-to-month or pre-paid annual accounts are eligible for Service Credits.
3.2 In addition to our rights to terminate or suspend Service Offerings to you, except as otherwise expressly provided in this Agreement, as described in Section 2 above, you acknowledge that we have no obligation or responsibility to assign Service Credits to any one-time use, free trial, batch, FTP batch, DataTumbler, or partner accounts or similar use (individually and collectively "Restricted Account"). You acknowledge that: (i) your access to and use of any of the Service Offerings may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any facet of any of the Service Offerings for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any facet of any of the Service Offerings at any time, on a Service Offering-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any facet of any of the Service Offerings; (b) in the event of a denial of service attack or other intrusion or attack on any facet of any of the Service Offerings, or other event that we determine, in our sole discretion, may create a risk to the applicable Service Offering, to you or to any of our other customers if that facet of any of the Service Offerings were not suspended; or (c) in the event that we determine that any facet of any of the Service Offerings is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (individually and collectively a "Service Suspension"). Without limitation to Section 7, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you notice of any Service Suspension in accordance with the notice provisions set forth in Section 10 below and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
3.3 We cannot guarantee your Queries are secure while being transmitted over the Internet. Accordingly, without limitation to Section 7 below, you acknowledge that you bear sole responsibility for adequate encryption, security, protection and backup of your Queries. We currently provide optional high-grade AES-256 encryption for all accounts at no charge and strongly encourage you, where appropriate, to use encryption technology to protect your Queries from unauthorized access in transmission.
"Confidential Information" means any information, written or oral, that relates to either party's business, products, processes, or services, that is designated as a trade secret, confidential or proprietary or that a reasonable party would understand to be confidential or proprietary, with the following exceptions: (i) information that was already known to the receiving party; (ii) information obtained from public or published information; (iii) information received from a third party not known to be employed or affiliated with the disclosing party; and (iv) information which is or becomes known to the public other than through a breach of this Agreement. Service Objects pricing, software, and technical documentation related to any of the Service Offerings shall be deemed Confidential Information and trade secrets regardless of any lack of other designation.
Each party agrees not to disclose the other party's Confidential Information and to protect its confidentiality using at least the same degree of care that party uses to protect its own Confidential Information, which shall under no circumstances be less than reasonable, including not disclosing it to a third party unless there is a "need to know," a "right to know," and a written obligation by the third party to maintain the confidentiality. If a party receives an order from a court or other governmental body that requires disclosure of the other party's Confidential Information then the party receiving the order shall notify the other party of the order and shall assist the other party in seeking an appropriate protective order in advance of making any such disclosure. You further agree not to allow or enable the reverse engineering, decompiling or disassembling of any of the Service Offerings software, including without limitation deriving any data, algorithms, or source code. The obligation to protect Confidential Information shall survive the expiration or termination of this Agreement.
5.1 In its sole discretion, Service Objects shall determine whether you are eligible for a free trial subscription to its Services. Free trials are limited to a fixed number of no-cost Queries to be used within a 30 day period per person per service, and if we determine, in our sole discretion, that you have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations.
5.2 An "Order Form" is a written document signed by you and Service Objects, or an electronic form submitted by you and accepted by Service Objects, which identifies the Service Offerings that you have agreed to purchase and the corresponding fees. To the extent the Service Offerings or any portion thereof are made available for any fee, you agree to pay all applicable fees (including any usage-based fees). You will provide Service Objects with valid credit card information or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information, you thereby authorize Service Objects to charge such credit card for all Services listed in the Order Form for the initial term and any renewal term(s). Fees shall be charged in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. Unless specified otherwise in the Order Form we will invoice you in advance for all regular recurring fees, such as subscription fees, and invoice you in arrears for all usage-based fees. We may increase or add new fees for any existing facet or feature of any of the Service Offerings by giving you 30 days' advance notice. You will provide such information to us as reasonably required to determine whether we are obligated to collect any taxes from you.
6. Intellectual Property
6.1 We reserve all right, title and interest (including but not limited to all intellectual property and proprietary rights) in and to: (i) the Service Offerings; (ii) trademarks, service marks, copyrights and other intellectual property used by Service Objects to identify itself as the provider of goods and/or services (the "Service Objects Marks"); and (iii) any other technology and software that we provide or use to provide any of the Service Offerings. You do not, by virtue of your use and access rights expressly set forth in this Agreement or otherwise, acquire any ownership interest or rights in any of the Service Offerings, the Service Objects Marks, or such other proprietary information, technology and software.
6.2 In the event you communicate to us suggestions for improvements to any of the Service Offerings or Service Objects Marks (collectively, "Feedback"), and any other content or information you post or provide to Service Objects via comments, forums, blogs, emails and the like (collectively, "Communications"), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback or Communications as confidential, and we shall be entitled to use the Feedback and Communications without restriction or compensation. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to us and agree to provide us such assistance as we may require to document, perfect, and maintain our exclusive rights to the Feedback and Communications.
6.3 Service Objects respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Service Objects of your infringement claim in accordance with the procedure set forth below.
Service Objects, Inc.
27 East Cota Street, #500
Santa Barbara, CA 93101
To be effective, notification must be in writing and contain the following information:
- a digital or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a specific description of the copyrighted work or other intellectual property that you claim has been infringed;
- a specific description of where the material that you claim is infringing is located on the Website, with enough detail that we may find it on the Website;
- Your mailing address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
7. Representations and Warranties; Disclaimers; Limitations of Liability
7.1 You represent and warrant that you will not use any of the Service Offerings (including but not limited to our Website forums and comments sections) or Service Objects Marks or any of your Applications or Queries, in a manner that violates this Agreement. To this end, you must take reasonable precautions and procedures to prevent violation of this Agreement. Although Service Objects does not assume the duty or obligation to monitor any materials created, posted or uploaded by you or any third parties, Service Objects reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or uploaded by you or any third parties at any time without prior notice to ensure that they conform to our usage guidelines and policies.
7.2 You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of your Applications and Queries, including without limitation the accuracy, appropriateness and completeness of your Queries and all product-related materials and descriptions; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your Applications and Queries; (iii) that neither any of your Applications or Queries (a) violate, misappropriate or infringe any rights of us or any third party, (b) constitute defamation, invasion of privacy or publicity, or otherwise violate any rights of any third party, or (c) is designed for use in any illegal activity or promote illegal activities, including without limitation use in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on any legally protected classification (e.g., race, sex, religion, nationality, disability, sexual orientation, or age); (iv) that neither any of your Applications or Queries contain any virus, worm, Trojan horse, logic bomb, wiretap, denial of service attack or other potential attack on us, any of our clients, or any facet of any of the Service Offerings; and (v) to the extent to which you use any of the Service Objects Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Service Objects. You also represent and warrant that you are responsible for any charges incurred by virtue of your use of the Applications, whether or not the Application in question acted in error. You acknowledge that Service Objects neither endorses the content of any user's Communication, nor assumes responsibility for any unlawful, abusive, threatening, libelous, defamatory, obscene, harassing, harmful, fraudulent or offensive material contained therein, any infringement or misappropriation of third party intellectual property rights arising therefrom, or any crime or harm facilitated thereby.
7.4 You represent and warrant that: (i) the information you provide in connection with your account for the Service Offerings is accurate and complete; (ii) you are duly authorized to operate your business in the jurisdiction(s) where you operate; and (iii) you personally are a duly authorized representative of your entity to access and use any of the Service Offerings, to use all your Applications and submit all your Communications and Queries, conducted under your account and to legally bind you and your entity to this Agreement.
7.5 THE SERVICE OFFERINGS ARE PROVIDED "AS IS." WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY OF THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT EXPLICITLY WARRANT WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN SERVICE OFFERINGS WILL BE CORRECTED, OR FREE OF ANY VIRUS, WORM, TROJAN HORSE, LOGIC BOMB, WIRETAP, DENIAL OF SERVICE ATTACK OR OTHER POTENTIAL INTRUSION OR ATTACK, OR THAT THE DATA YOU STORE WITHIN ANY OF THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE COMPROMISED, LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE OFFERINGS INTERRUPTIONS, INCLUDING WITHOUT LIMITATION POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH ANY OF THE SERVICE OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7.6 NEITHER WE NOR ANY OF OUR AFFILIATES, SUPPLIERS, OR LICENSORS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE ANY OF THE SERVICE OFFERINGS OR THE SERVICE OBJECTS MARKS; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES; OR (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES FURTHERMORE, YOU ACKNOWLEDGE THAT THIS ENTIRE SECTION 7 AN ESSENTIAL COMPONENT OF THIS AGREEMENT, AND THAT WE WOULD NOT PROVIDE ANY OF THE SERVICE OFFERINGS WITHOUT YOUR MAKING THESE REPRESENTATIONS AND WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
7.7 THE SERVICES DO NOT AND ARE NOT INTENDED TO SUPPORT ANY EMERGENCY SERVICES. "EMERGENCY SERVICES" SHALL MEAN SERVICES THAT ALLOW A USER TO CONNECT WITH EMERGENCY SERVICES PERSONNEL OR PROVING EMERGENCY MESSAGING TO A USER. NEITHER WE NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR LICENSORS SHALL BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIMS, LOSSES, DAMAGES, LIABILITIES, JUDGMENTS, PENALTIES, FINES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES AND EXPERT FEES) (AND YOU HEREBY WAIVE THE SAME), ARISING FROM OR RELATING TO YOUR INABILITY TO USE ANY OF THE SERVICE OFFERINGS TO CONTACT ANY EMERGENCY SERVICES.
8.1 You agree to indemnify, defend and hold us, our affiliates, suppliers, and licensors, each of our and their respective business partners (including without limitation third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, contractors, officers, directors, shareholders, members, managers, insurers, attorneys, agents and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorney's fees), arising out of or relating to (i) your use of any of the Service Offerings in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, and/or applicable law, (ii) your Applications, Communications, or Queries, alone or in combination with other applications, content or processes, including without limitation any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of any of your Applications, Communications and/or Queries, (iii) your violation of any term or condition of this Agreement, including without limitation your representations and warranties, or (iv) your or your contractors, employees, officers, directors, agents and/or representatives negligence or willful misconduct.
8.2 We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
9.1 You acknowledge that we may suffer great harm from misuse of information obtained from any of the Service Offerings and accordingly you agree to take reasonable precautions to prevent such misuse by you and your customers. We may seek injunctive or other equitable relief against the breach or threatened breach of this Agreement in addition to any other legal remedies that may be available.
9.2 By using the Services, you agree that the laws of the State of California, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us (including without limitation any rulings issued and remedies ordered by an arbitrator).
9.3The parties will act in good faith to resolve any claim or dispute arising under this Agreement. If the parties fail to resolve a claim or dispute, that claim or dispute shall be submitted by either party to binding arbitration with Judicial Arbitration & Mediation Services, Inc., or ADR Services, Inc., under that service's California rules and procedures of arbitration then in effect. No trial de novo or appeal will be available for any claim or dispute submitted to binding arbitration and confirmed by a court of competent jurisdiction, except as to matters of law. Jurisdiction will be with the courts of the State of California with venue exclusively in the City and County of Santa Barbara, and the parties waive any objection to personal jurisdiction, venue or forum non conveniens. Notwithstanding the above, any injunctive relief may be obtained in any court having jurisdiction.
9.3.1 THIS AGREEMENT DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR SHALL AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.
9.3.2 IF EITHER YOU OR SERVICE OBJECTS INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO SERVICE OBJECTS SHOULD BE SENT AS REQUIRED BY THIS AGREEMENT. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF YOU AND SERVICE OBJECTS ARE UNABLE TO RESOLVE THE DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION.
9.3.3 AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN'T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
10.1 All notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via a notification message displayed on your account page or via the email address provided to us in your account registration or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
11. Miscellaneous Provisions
11.1 If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
11.2 To the extent that all or any part of this Agreement is found to be unenforceable, the terms may be reformed and augmented so that all the terms found to be enforceable may be enforced against the applicable party. If any provision of this Agreement or its application to any person or circumstance is determined, to any extent, to be invalid or unenforceable and not amenable to reformation, that provision will be severed from the Agreement, and the remainder of this Agreement or the application of the provision to other persons or circumstances will remain valid and enforceable to the fullest extent permitted by law.
11.3 The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
11.4 This Agreement will be binding upon, and inure to the benefit of, the parties and their respective heirs, executors, administrators, representatives, successors and assigns.
11.6 You and Service Objects hereby agree to opt out from and expressly exclude any applicability of the Uniform Information Transactions Act (UCITA). Services, content, and product derived or obtained from any of the Service Offerings may be subject to the US export laws and the export or import laws of other countries. You agree to comply strictly with all such laws and, in particular, shall: (a) obtain any export, re-export, or import authorizations required by US or your local laws; (b) not use any services, content, or direct product from any of the Service Offerings to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide services, content, or direct product from any of the Service Offerings to prohibited countries and entities identified in the US export regulations.
11.7 Nothing in this Agreement shall be construed as creating a partnership, contract of employment, agency, joint venture or franchise relationship between Service Objects and you.
11.8 Except as otherwise expressly provided in the Terms, there are no third party beneficiaries to this Agreement.
11.9 For any use of DOTS BIN Validation Service, you represent and warrant that at the time of accessing and using that service: (i) all credit card information provided by you to the Service shall be lawfully obtained by you based on a consumer-initiated transaction; (ii) you have an existing Merchant Processing Credit Card account; (iii) your business has a demonstrable financial history; and (iv) your business is duly authorized to operate in the jurisdiction(s) where you operate within the United States or Canada.
11.10 For any use of DOTS Email Append Service, (i) you agree to abide by all federal, state and local consumer and child protection laws, including without limitation the CAN SPAM Act (S.877) of 2003, the Utah Child Protection Registry Law and the Michigan Children's Protection Registry Act; (ii) you shall comply with all laws, rules and regulations which are or which may in the future be applicable to its use of that service, including all privacy and data protection laws, and (iii) you represent and warrant that at the time of accessing and using that service all contact information provided by you shall be lawfully obtained by you based on a consumer-initiated transaction.
11.11 For any use of DOTS NCOA Live, (i) you represent and warrant that you shall provide a minimum of 100 unique names and addresses on each mailing list for NCOALink processing for acceptance, handling and delivery by the USPS; (ii) you represent and warrant that you shall provide upon first use of the service a NCOALink Processing Acknowledgement Form ("PAF"); and (iii) you agree to submit an updated PAF at least once every twelve (12) months thereafter.
Last Updated: March 13, 2012