Terms of Use

Date Last Updated: August 1, 2021

Welcome to Upzing, a service of WideOrbit LLC! Please read these Upzing Terms of Use carefully because they are a binding agreement between the individual or entity accepting these terms (“you”) and WideOrbit LLC (“WideOrbit”, ‘We”, “Us”, “Our”). You and WideOrbit are sometimes referred to herein individually as a “party” and collectively as the “parties.”

By accessing or using the Service or executing an Order Form referencing these Terms of Use, you irrevocably agree to these Terms of Use. If you do not agree to these Terms of Use, you may not access or use the Service. If you are accepting these Terms of Use on behalf of an entity, you represent and warrant that you have the authority to bind such entity to these Terms of Use.

For clarification, the Service may include: (a) the “Upzing Service” which means the Upzing advertising management service to boost or “Upzing” your advertisements using your preferred campaign characteristics in combination with Our proprietary methods and data sources, as more fully described in Our Documentation. The number of Upzings available to you as part of the Upzing Service depends on the level of Upzing Service that you have ordered. Information regarding the number of Upzings remaining in a particular subscription period (e.g., month) can be found in your User Account on the Service; and (b) the “Upzing Attribution Service” which means Our proprietary data analytics service pursuant to which We analyze your campaign data and publish insights on your own private dashboard, as more fully described in the Documentation. Both the “Upzing Service” and the “Upzing Attribution Service,” shall be deemed a “Service” as defined in the Terms of Use.

In some instances, you may be subject to different or additional terms and conditions, policies and guidelines, including product-specific terms (“Additional Terms”) that are applicable to certain parts of the Service. Those Additional Terms will be posted on the Service in connection with the relevant offering. In the event of a conflict between these Terms of Use and the Additional Terms, the Additional Terms shall control.

If you are an agency acting on behalf of an advertiser client (“Client”), you represent and warrant that (i) you have all necessary authority to enter into these Terms of Use on behalf of Client and (ii) that you have the authority to grant all the rights granted to Us herein. Any of your obligations pursuant to these Terms of Use may be satisfied by Client and shall be deemed to be an obligation of both you and Client. If you designate a representative of Client as an Authorized Party, any of your rights pursuant to these Terms of Use may be exercised by Client, and shall be deemed to be a right of both you and Client. Collectively, you and Client will be referred to as “you.” Each of you and Client shall be jointly and severally liable for the obligations of the other.

1. Account Registration

1.1 Account Registration and Use License
In order to access and use all of the features of the Service, you are required to open an account (“User Account”) by registering with Us. When you register for your User Account you must provide true, accurate, current and complete information (“Account Information”), and you agree to update the Account Information in order to ensure that it is current. We may also require you to provide additional information, such as to verify your Account Information. Upon proper registration and opening of a User Account, and subject to all of the terms and conditions of these Terms of Use, We hereby grant to you the limited, revocable, non-exclusive, personal, non-transferable, and non-sublicenseable right and license for you and your Authorized Parties to use the Service, Content, and Documentation solely for your own internal business purposes, until such time as either you or We elect to terminate such right in accordance with these Terms of Use.

1.2 Eligibility
As an express condition of being permitted to open a User Account, you represent and warrant that you (i) have the legal capacity (including, without limitation, being of sufficient age) to enter into contracts under the law of the jurisdiction in which you reside, (ii) are not on a list of persons barred from receiving services under U.S. laws (including, without limitation, the Denied Persons List and the Entity List issued by the U.S. Department of Commerce, Bureau of Industry and Security) or other applicable jurisdiction and (iii) are not a resident of Cuba, Iran, North Korea, Sudan or Syria.

1.3 Credentials
Upon registration for a User Account, you will provide Us with a user ID and password to access your account. You are responsible for maintaining the confidentiality of your password and for all of your activities and those of any third party that occur through your account, whether or not authorized by you. You agree to immediately notify Us of any suspected or actual unauthorized use of your User Account. You agree that We will not under any circumstances be liable for any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your password.

2. Fees; Termination

2.1 Fees
Some features of the Service may only be accessed and used upon the payment of applicable fees (“Fees”). Fees will be set forth on the Order Form on the Site or Service where you have initially signed up for or otherwise ordered new or different features of the Service, or otherwise published on the Site or Service.  We reserve the right to revise Our Fees by providing at least 30 days’ advance notice to you.

2.2 Payment
We use third-party service providers, such as Stripe and its affiliates, to process payments. You understand and agree that, when you register a payment card on the Service, We or our third-party service providers may verify that the payment card is valid. Unless and until these Terms of Use are terminated or cancelled in accordance with the terms hereof, you hereby authorize Us or Our third-party service providers to charge the amounts you owe Us to your payment card, including payments for subscription services upon your subscription to the Service and at the beginning of each interval (e.g., monthly) indicated on the Order Form or in other applicable Additional Terms thereafter plus taxes if applicable. In the event that We or Our third-party service provider charge you following termination or cancellation or otherwise not in accordance with these Terms of Use, your sole remedy and Our sole liability is to provide you with a refund.

2.3 Refunds, Upgrading, and Downgrading
Refunds are processed according to Our Refund Policy. Any changes in your Service usage that result in any new, increase or decrease in Fees as specified on the Order Form or in Our current pricing policy available in the Service or on the Site, will start a new billing cycle at the moment the change is made and you will be billed at that time. Where there is an increase in fees, any unused credits from the current billing cycle will be added to the new billing cycle amount There will be no refunds or prorating for downgrades during a billing cycle. Downgrading your Service may cause the loss of features or capacity of your User Account. We do not accept any liability for such loss.

2.4 Cancellation and Termination by You
You can terminate these Terms of Use at any time by canceling your User Account as indicated on the Site or Service. If you cancel your User Account before the end of your current paid up applicable subscription term, your cancellation will take effect immediately, and you will not be charged again. Please note that We do not provide refunds for unused time unless set forth in Our Refund Policy.

2.5 Termination and Suspension
We may terminate your User Account and/or these Terms of Use at any time and for any reason upon notice to you. We may also suspend Our Service to you at any time, with or without cause. If We terminate your User Account without cause, We will provide you a refund as set forth in Our Refund Policy. We will not refund or reimburse you if We terminate your User Account for cause, including (without limitation) for a violation of these Terms of Use.

2.6 Effect of Termination
Once your User Account is terminated, We may permanently delete your User Account and any or all User Content associated with it. If you do not log in to your User Account for 12 or more months, We may treat your User Account as “inactive” and permanently delete the User Account and all the data associated with it. All sections of these Terms of Use which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

2.7 Taxes
Fees pursuant to these Terms of Use do not include taxes, including but not limited to local, state, provincial, federal or foreign taxes, sales tax, withholding taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes (collectively “Taxes”). You shall pay all Taxes imposed on the Service or any other services provided under these Terms of Use. If We have a legal obligation to pay or collect Taxes for which You are responsible under these Terms of Use, the appropriate amount will be computed based on Your location, and invoiced to and paid by You, unless you provide our designated third-party provider with a valid tax exemption certificate authorized by the appropriate taxing authority at the time you subscribe to any services hereunder.

2.8 Free Trials
If you do not initially register for a version of the Service that requires the payment of a fee, you will nonetheless be permitted to use all of the features of the Service, subject to availability and any applicable Additional Terms, for the trial period expressly stated at the time you signed up for the trial period use of the Service (“Free Trial Period”). NOTWITHSTANDING ANYTHING TO THE CONTRARY, ANY SERVICE PROVIDED DURING THE FREE TRIAL PERIOD IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES. Upon the expiration of the Free Trial Period, you will only be able to access and use those features of the Service the use of which does not require the payment of a Fee (if any), unless you subsequently upgrade to a paid version of the Service. IN SOME INSTANCES, AS SET FORTH IN ANY APPLICABLE ADDITIONAL TERMS, YOU MAY BE AUTOMATICALLY UPGRADED TO A PAID VERSION OF THE SERVICE AT THE END OF YOUR FREE TRIAL PERIOD, IN WHICH CASE WE OR OUR THIRD-PARTY SERVICE PROVIDERS WILL BEGIN CHARGING THE PAYMENT CARD YOU HAVE PROVIDED AUTOMATICALLY FOR THE INITIAL SUBSCRIPTION FEE AND FOR EACH APPLICABLE FEE AT THE INTERVAL (E.G., MONTHLY) INDICATED ON THE ORDER FORM OR IN OTHER APPLICABLE ADDITIONAL TERMS; IN SUCH AN INSTANCE, IN ORDER TO PREVENT YOUR FREE TRIAL PERIOD FROM TRANSITIONING TO A PAID VERSION OF THE SERVICE OR BEING CHARGED FOR THE PAID VERSION OF THE SERVICE ON A RECURRING BASIS, YOU MUST CANCEL YOUR USER ACCOUNT PRIOR TO THE END OF YOUR FREE TRIAL PERIOD AS SET FORTH IN SECTION 2.4 ABOVE.

3. Your Obligations; Agency Representation

3.1
You agree to provide Us with all information We reasonably request that is reasonably necessary to provide the Service. You acknowledge and agree that you may elect to provide Us with access to Third-Party Services accounts or information owned or controlled by you and that certain aspects of the Service may be unavailable if you do not provide such access.

3.2
If you receive notice that User Data or a Third-Party Service must be removed, modified, or disabled to avoid violating applicable law, third-party rights, or these Terms of Use, you will promptly do so. If you do not take required action in accordance with the above, or in Our judgment continued violation is likely to reoccur, We may disable the applicable User Data, Third-Party Service, Service, or Content. If requested by Us, you shall confirm such deletion and discontinuance of use in writing and We shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if We are required by any third party rights holder to remove Content, or receive information that Content provided to you or any Third-Party Services (or their content, data, or information) may violate applicable law or third-party rights, We may discontinue your access to the same through the Service.

3.3
You shall: (1) have sole responsibility for the accuracy, quality, and legality of all User Data and the interoperation of any Third-Party Services with which you use the Service or with which you direct Us to use the Service (including, without limitation, by providing access to Third-Party Service accounts pursuant to Section 3.1); (2) use the Service, Content, and Documentation in compliance with all Laws, these Terms of Use and the Documentation; (3) comply with the Terms of Use of any Third-Party Services with which you use the Service or Content; and (4) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Us promptly of any unauthorized access or use.

3.4
You shall not: (1) in connection with the Service, submit, send or store material that infringes, misappropriates or otherwise violates Intellectual Property rights, or is obscene, threatening, or otherwise unlawful or tortious material, including material that violates rights of privacy or publicity; (2) send duplicative or unsolicited communications, including SMS, emails, chats, social media, VoIP, or other messages, junk mail, spam, or other forms of duplicative or unsolicited communications; (3) knowingly send or store Malicious Code in connection with the Service; (4) knowingly interfere with or disrupt performance of the Service or the Content; or (5) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation. You are responsible for your Authorized Parties’ compliance with these Terms of Use and any breach by your Authorized Parties will be deemed a breach by you.

4. Rights and Restrictions

4.1 Proprietary Rights
As between Us and you, you own all right, title and interest to User Data. As between you and Us, We or Our licensors own all right, title and interest to the Service, Content, Documentation, Resultant Data (defined below) and other of Our Confidential Information, and all Intellectual Property Rights in and to the foregoing. Except for the limited rights expressly granted to you hereunder, We reserve all rights, title and interest in and to the Service, Content, and Documentation, including all related Intellectual Property Rights. You hereby grant Us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into Our services any Customer Input.  We will have no obligation to make Customer Input an Improvement or otherwise use Customer Input.  You will have no obligation to provide Customer Input.

4.2 Restrictions
You shall only use the Service, Content, and Documentation in accordance with the rights granted to you in Section 1.1 and the other limitations on your use herein. Without limiting the foregoing, you shall not (1) modify, copy, or create derivative works based on, the Service, Content, or Documentation; (2) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service, Content, or Documentation available to any third party other than to Authorized Parties as permitted herein; (3) reverse engineer or decompile any portion of the Service, Content, or Documentation, including but not limited to, any software utilized by Us in the provision of the Service, Content, and Documentation, except to the extent required by Law; (4) access the Service, Content, or Documentation in order to build any commercially available product or service; or (5) copy any features, functions, integrations, interfaces or graphics of the Service, Content, or Documentation. Notwithstanding Section 4.2.5, you may make a reasonable number of copies of the Documentation for internal business purposes only.

4.3 Third-Party Services
The Service may contain features designed to interoperate with Third-Party Services. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Service ceases to make the Third-Party Service available for interoperation with the corresponding Service features in a manner acceptable to Us.

5. Confidentiality

Each party (the “Recipient”) shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) not to disclose or use any Confidential Information of the other party (the “Discloser”) except as reasonably necessary to perform the Recipient’s obligations or to exercise the Recipient’s rights under these Terms of Use or with the Discloser’s prior written permission.  Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers, who are bound by confidentiality obligations at least as restrictive as those in this section.  To the extent required by Law, the Recipient’s disclosure of the Discloser’s Confidential Information will not be considered a breach of these Terms of Use if the Recipient promptly provides Discloser with prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure.  We may seek injunctive relief to enjoin any breach or threatened breach of this section, it being acknowledged by the parties that other remedies may be inadequate.

6. Protection and Security of User Data

6.1 Security
We have implemented commercially reasonable physical, technical, and administrative security protocols aimed at preventing unauthorized access to the Service, Content, Documentation, and User Data. User Data shall only be used by Us to provide the Service or to prevent or address service or technical problems, verify Improvements, in accordance with the Agreement, the Documentation, Our Privacy Policy, or your instructions. Notwithstanding the foregoing, We may use aggregated and/or deidentified User Data, such that it does not identify you or any individuals (“Resultant Data”), to provide or improve the Service and for other business purposes. You shall implement and maintain commercially reasonable physical, technical, and administrative procedures to prevent unauthorized access to your systems. You and your Authorized Parties shall safeguard and not share with anyone other than the Authorized Parties any user credentials associated with an Authorized Party account.

6.2 Unauthorized Disclosure
If you or We become aware of a Security Breach, each must reasonably promptly notify the other, unless legally prohibited from doing so.  You shall reasonably assist Us in mitigating any potential damage arising out of a Security Breach.  Unless prohibited by Law, you shall not make any public notices, filings, or press releases, or provide notifications to any individuals, governmental authority or any third party about a Security Breach without Our prior written consent.

7. Warranties

7.1
You and We each warrant that we have the authority to enter into these Terms of Use and, in connection with our performance of these Terms of Use, shall comply with all Laws.

7.2
You further warrant that (1) you own or have all necessary rights in and to the User Data to grant the rights in the same to Us hereunder; (2) Our use of the User Data will not infringe any third party’s Intellectual Property Right or right of publicity or privacy; and (3) Our access to or use of any of your Third-Party Services accounts as authorized by you hereunder will not violate any applicable Laws, policies, or terms of use/service, or any of your or your Authorized Parties’ obligations to any third party (including to any Third-Party Services).

7.3
We warrant that during the effectiveness of these Terms of Use: (1) the Service will perform materially in accordance with the Documentation and (2) to the best of Our knowledge, the Service does not contain, and We will not knowingly introduce, any Malicious Code. In the event of a breach of the warranty set forth in Sections 7.3.1 or 7.3.2, We shall correct the non-conforming Service at no additional charge to you, and in the event We are unable to correct such deficiencies after good-faith efforts, We shall refund you amounts paid attributable to the defective Service from the date We received such notice.  In order to make such a warranty claim, you shall notify Us in writing no later than five (5) business days after identifying a deficiency, in writing to Us in accordance with the notice provisions of these Terms of Use.  The remedies set forth in this section will be your sole and exclusive remedy and Our sole and exclusive liability for breach of these warranties.

7.4 DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF USE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. YOU ACKNOWLEDGE AND AGREE THAT THE RESULTS OF THE SERVICE ARE DEPENDENT UPON (a) YOUR OR YOUR AUTHORIZED PARTIES’ INPUTS AND INSTRUCTIONS TO THE SERVICE AND/OR THIRD-PARTY SERVICES (E.G., CAMPAIGN DETAILS AND SPEND) AND (b) THE QUALITY OF THE THIRD-PARTY SERVICES AND THE DATA, CONTENT, AND INFORMATION THEREON OR PROVIDED THEREBY AND OTHER EXTERNAL FACTORS. THUS, WE CANNOT AND DO NOT WARRANT THAT THE SERVICE WILL PROVIDE ANY PARTICULAR RESULT OR MEET YOUR EXPECTATIONS. THE CONTENT AND DOCUMENTATION, AS WELL AS THIRD-PARTY SERVICES AND THE DATA, CONTENT, AND INFORMATION THEREON OR PROVIDED THEREBY, ARE PROVIDED “AS IS” AND WE PROVIDE NO WARRANTY WITH RESPECT TO THEM WHATSOEVER. THE LIMITED WARRANTIES PROVIDED IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO YOU.

8. Indemnification

8.1 Our Indemnity Obligations
We shall defend, indemnify, and hold you harmless at Our expense, against any third party Losses arising out of or relating to an allegation that the use of the Service as contemplated hereunder infringes that third party’s United States copyright.  We will have no liability for Losses to the extent they arise from: (1) modification of the Service by anyone other than Us; (2) use of the Service in a manner inconsistent with the Documentation or in violation of these Terms of Use; (3) use of the Service in combination with any other product or service not provided by Us; or (4) Third-Party Services, including any content, data, or information provided by a Third-Party Service. If you are enjoined from using the Service or if We reasonably believe you will be enjoined, We may, at Our sole option, obtain for you the right to continue use of the Service or replace or modify the Service so that it is no longer infringing.  If neither of the foregoing options is reasonably available to Us, then you or We may terminate these Terms of Use and Our sole liability, in addition to the indemnification obligations in this section, will be to refund any prepaid Fees for the Service that was to be provided after the effective date of termination. This Section 8.1 states your sole and exclusive remedy arising out of or related to an allegation that the Service, Content, or Documentation or use thereof infringes a third party’s Intellectual Property Rights.

8.2 Your Indemnity Obligations
You shall defend, indemnify, and hold harmless Us, Our Affiliates, and Our and their officers, directors, agents, and employees, at your expense, from any third-party Losses arising out of or related to (1) an allegation that any User Data, or Our use thereof, infringes, misappropriates, or otherwise violates such third-party’s Intellectual Property Rights or rights of publicity or privacy; (2) your or your Authorized Parties’ violation of Laws or breach of any representations, warranties, covenants, or obligations in these Terms of Use; or (3) your or your Authorized Parties’ gross negligence or willful misconduct.

8.3 Indemnification Procedure
The indemnitee shall: (1) promptly give written notice of the third party claim to the indemnitor (although a delay of notice will not relieve the indemnitor of its obligations under this section except to the extent that the indemnitor is prejudiced by such delay); (2) give the indemnitor sole control of the defense and settlement of the third party claim (although indemnitor may not settle any third party claim unless it unconditionally releases indemnitee of all liability); and (3) provide to the indemnitor, at the indemnitor’s cost, all reasonable assistance.

9. Limitation of Liability

9.1 GENERAL CAP
EXCEPT WITH RESPECT TO (1) DAMAGES CAUSED BY FRAUD, (2) YOUR PAYMENT OBLIGATIONS, OR (3) YOUR INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID OR PAYABLE UNDER THESE TERMS OF USE DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE.

9.2 EXCLUSION OF DAMAGES
EXCEPT FOR DAMAGES CAUSED BY FRAUD, IN NO EVENT WILL WE OR OUR AFFILIATES HAVE LIABILITY FOR LOST PROFITS OR REVENUES, LOSS OF USE OR DATA, BUSINESS INTERRUPTION, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR COVER DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSIONS IN THIS SECTION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. YOUR PAYMENT OBLIGATIONS WILL NOT BE CONSIDERED OUR LOST PROFITS.

9.3
Except where an exclusive remedy may be specified in these Terms of Use, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms of Use at law or equity, provided that any and all remedies for breach of these Terms of Use (including, without limitation, any representations, warranties, covenants, or obligations in the terms and conditions of these Terms of Use, any Additional Terms, and any other exhibits, addenda, or attachments hereto or linked herein, and any Order Form)  are subject to the limitations and exclusions of liability in this Section 9.

10. Modification to Terms of Use

We expressly reserve the right to modify these Terms of Use at any time in Our sole discretion by including such alteration and/or modification in these Terms of Use, along with a notice of the effective date of such modified Terms of Use. If a revision is material, We will use reasonable efforts to notify you (by, for example, through your User Account or in the Service itself). To the extent you have purchased a subscription to the Service, the modified Terms of Use will be effective as to such subscription Service upon the earlier of (i) your next subscription renewal, or (ii) your acceptance of the modified Terms of Use by clicking “Accept” (or similar button or checkbox) at the time you are presented with the modified Terms of Use. If you object to the updated Terms of Use, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. In all other cases, any continued use by you of the Service after the posting of such modified Terms of Use shall be deemed to indicate your irrevocable agreement to such modified Terms of Use.

11. General Provisions

11.1 Relationship of the Parties
You and We are independent contractors. These Terms of Use do not create nor are they intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between you and Us.  Except any indemnitees pursuant to Section 8, there are no third party beneficiaries these Terms of Use.

11.2 Notices
Unless expressly stated otherwise, all notices under these Terms of Use must be in writing and will be deemed to have been given upon: (1) personal delivery; and (2) the third business day after first class mailing. Notices to Us must be sent to WideOrbit, 1160 Battery Street, Suite 300, San Francisco, CA 94111, addressed to the attention of its General Counsel with a copy sent by email to legal@upzing.com. Notices to you will be sent to the email address provided when you sign up for the Service.

11.3 Waiver and Cumulative Remedies
No failure or delay by either party in exercising any right under these Terms of Use will constitute a waiver of that right or any other right.

11.4 Force Majeure
Neither party will be liable for any failure or delay in performance under these Terms of Use for causes beyond that party’s reasonable control.  Dates by which performance obligations are scheduled to be met will be extended for a period equal to the time lost due to any delay so caused.

11.5 Assignment
You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent. We may freely assign or otherwise transfer any of Our rights or obligations hereunder.

11.6 Governing Law; Waiver of Jury Trial
These Terms of Use, and all Claims relating to or arising from these Terms of Use, are governed exclusively by laws of the State of California, without regard to its conflicts of laws rules. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms of Use. The parties agree to the exclusive jurisdiction and venue in the state and federal courts of San Francisco County, California.

11.7 Export
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, you shall not make the Service available to any person or entity that: (1) is located in a country that is subject to a U.S. government embargo; (2) is listed on any U.S. government list of prohibited or restricted parties; or (3) is engaged in activities directly or indirectly related to proliferation of weapons of mass destruction.

11.8 Federal Government End Use Provisions (if applicable)
We provide the pre-existing, commercial Service, including related software and technology, for federal government end use solely in accordance with the terms and conditions of these Terms of Use, and We provide only the technical data and rights as provided herein. If a government agency has a “need for” rights not conveyed under these Terms of Use, it must negotiate with Us to determine whether there are acceptable terms for transferring additional rights. A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein. For avoidance of doubt, We do not currently provide the Service for use in furtherance of a federal prime or subcontract.

11.9 Miscellaneous
These Terms of Use constitute the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of an Order Form will take precedence over provisions of the terms and conditions of these Terms of Use and over any other exhibit or attachment or documents linked herein. You acknowledge that you have had the opportunity to review all exhibits and attachments hereto or documents linked herein.

These Terms of Use supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter and are entered into without reliance on any promise or representation other than those expressly contained herein. Except as otherwise stated herein, no modification, amendment, or waiver of any provision of these Terms of Use will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms of Use will remain in effect.  Notwithstanding anything to the contrary in these Terms of Use, no terms or conditions in a purchase order or in any other order documentation provided by or on behalf of you or an Authorized Party will be incorporated into or form any part of these Terms of Use, and all such terms or conditions will be null and void.

11.10 Customer Identification
We may use your business name and logo in lists of customers, on earnings calls and releases, marketing materials and on Our website. You must obtain Our prior written consent to use Our name and logo in any manner. If We provide you consent to do so, We may revoke such consent at any time.

12. Definitions

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized Parties” means your employees, agents and contractors and third party providers who are authorized by you to access the Service.

“Confidential Information” means (1) any software utilized by Us in the provision of the Service and its respective source code; (2) User Data; (3) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (4) the non-public terms, conditions and pricing of these Terms of Use. Confidential Information does not include any information that, without the Recipient’s breach of an obligation owed to the Discloser: (i) is or becomes generally known to the public; (ii) was known to Recipient prior to disclosure by Discloser; (iii) was independently developed by Recipient; or (iv) is received by Recipient from a third party.

“Content” means content, data, and information made available to you on the Service by Us, excluding any Third-Party Services or content, data, and information made available by such Third-Party Services.

“Customer Input” means suggestions, enhancement requests, recommendations or other feedback provided by you and/or Authorized Parties relating to the operation or functionality of the Service.

“Documentation” means the documentation regarding the features and functionality of the Service made available on the Service, which may be updated by Us from time to time.

“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service, Content, and Documentation, as developed by Us and made generally available for production use without a separate charge to customers.

“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.

“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to the respective party.

“Loss” means reasonable attorneys’ fees and any damages or costs finally awarded or entered into in settlement of a Claim.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.

“Order Form” means the ordering documents including those available on the Site or the Service, such as an order form or an IO, under which you subscribe to the Service or other services.

“Security Breach” means any actual or reasonably suspected unauthorized use of, loss of, access to or disclosure of, User Data; provided that an incidental disclosure of User Data to an Authorized Party or Us, or incidental access to User Data by an Authorized Party or Us, where no reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in nature, shall not be considered a “Security Breach” for purposes of this definition, unless such incidental disclosure or incidental access triggers a notification obligation under any Law.

“Service” means Our software-as-a-service applications and Improvements as described herein and in the Additional Terms and/or Documentation and subscribed to under an Order Form. “Service” excludes Third-Party Services.

“Terms of Use” means the terms and conditions of these Terms of Use, any Additional Terms, and any other exhibits, addenda, or attachments hereto or linked herein, and any Order Form.

“Third-Party Service” means a web-based or other software application functionality that interoperates with the Service, that is provided by you or a third party.

“User Data” means electronic data or information (i) submitted to the Service by or on behalf of you or Authorized Parties or (ii) submitted or made available by or on behalf of you or Authorized Parties to Us through Third-Party Services. “User Data” excludes Resultant Data.