Terms of Use
Terms of Use Agreement - Last revised on: December 12, 2022
Welcome, and thank you for your interest in Subconscious.ai Inc. (“Company,” “we,” “us,” or “our”) and in (i) our platform for running experiments augmented by Large Language Models, (ii) resulting synthetic populations and experiment results (“Knowledge Base”), (iii) our website located at SUBCONSCIOUS.AI, and (iv) any other associated websites and subdomains, networks, products and SERVICES on which a link to this Terms of Use Agreement is displayed (collectively, the “SERVICE”). Certain features of the SERVICE may be subject to additional guidelines, terms, or rules, which will be posted on the SERVICE in connection with such features. All such additional terms, guidelines, and rules, including our Privacy Policy are incorporated by reference into this Agreement. PLEASE READ THIS TERMS OF USE AGREEMENT (THIS “AGREEMENT”) CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICE. BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SERVICE, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICE IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF, AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY: (1) AGREE THAT THE TERMS “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND SUCH INDIVIDUAL; AND (2) REPRESENT AND WARRANT THAT THE INDIVIDUAL ENTERING INTO THIS AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY. IF YOU SUBSCRIBE TO THE SERVICE FOR A TERM (“INITIAL SUBSCRIPTION PERIOD”), THEN THE SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL SUBSCRIPTION PERIOD AT COMPANY’S THEN-CURRENT RATE FOR SUCH SERVICE UNLESS YOU OPT-OUT OF THE AUTO RENEWAL IN ACCORDANCE WITH SECTION 4.5 (AUTOMATIC RENEWAL) OF THIS AGREEMENT BELOW. YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THIS AGREEMENT IF YOU ARE NOT ELIGIBLE (AS DESCRIBED IN SECTION 1.1 BELOW). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE. PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. See Section 10.1 of this Agreement for further information about changes to this Agreement. PLEASE REGULARLY CHECK OUR WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. ACCOUNTS
1.1 Eligibility
You must be at least thirteen (13) years old to use the SERVICE. By agreeing to this Agreement, you represent and warrant to us that you are at least thirteen (13) years old. If you are at least thirteen (13) years old but less than eighteen (18) years old, you represent and warrant to us you have obtained the consent of your parent or guardian, as applicable, to agree to this Agreement and use the SERVICE.
1.2 Account Creation
In order to use certain features of the SERVICE, you must register for an account (“Account”) and provide certain information about yourself as prompted in the account registration process. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by contacting suppor@subconscious.ai to request deletion of your Account. Company may suspend or terminate your Account in accordance with Section 9.2 or 10.8.
1.3 Account Responsibilities.
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Company will not be liable for any loss or damage arising from any unauthorized use of your Account or your failure to comply with the above requirements.
2. ACCESS TO THE SERVICE
2.1 Access and Use
Subject to this Agreement, Company grants you a non-exclusive, revocable, limited, nontransferable, non-assignable, right and license to (i) use and access the SERVICE, and (ii) to download, install, and use any application programming interfaces, software development kits, executable software, instructions, documentation, and other related materials provided by Company (the “Integration Materials”) for the purpose of integrating the SERVICE into your Development Environment (as defined in Section 3.1 below), in each case solely for your personal or internal business use, as applicable, and subject to any use limitations put in place or provided by Company. If you elect to integrate the SERVICE into your Development Environment (as defined in Section 3.1 below), you agree that you will only do so in a manner that complies with Company’s published documentation.
2.2 Certain Restrictions and User Conduct
The SERVICE and Integration Materials are made available to you solely for your own personal or internal business use, as applicable. You shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, structure, ideas, algorithms, or associated know-how of, the SERVICE or Integration Materials, or reconstruct, or discover, any hidden or non-public elements of the SERVICE or Integration Materials; (ii) translate, adapt, or modify the SERVICE, Integration Materials or any portion thereof; (iii) except as necessary to integrate the SERVICE with your Development Environment (as defined in Section 3.1 below) using the Integration Materials in accordance with our documentation, write or develop any program based upon the SERVICE or any portion thereof; (iv) use the SERVICE or Integration Materials in any manner for the purpose of developing, distributing or making accessible products or SERVICEs that compete with the SERVICE or Integration Materials; (v) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the SERVICE, Integration Materials or any rights thereto; (vi) export, sell or distribute any content or portion of the SERVICE or Integration Materials, allow access to the SERVICE (or any content or other portion thereof) or Integration Materials by any third persons, make the SERVICE or Integration Materials available on a SERVICE bureau basis, or otherwise access or use the SERVICE for the benefit of a third party; (vii) permit your Account on the SERVICE to be accessed or used by any persons other than your employee personnel; (viii) attempt to engage in or engage in, any potentially harmful acts that are directed against the SERVICE, including but not limited to violating or using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the SERVICE or interfering with the use of SERVICE by any other user, host or network; (ix) transmit unlawful, infringing, or harmful User Content (as defined in Section 3.4) or other data or code that you are not authorized to transmit, either to or from the SERVICE; (x) interfere or attempt to interfere with, disrupt, or create an undue burden on servers or networks connected to the SERVICE, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the SERVICE, or violate the regulations, policies or procedures of such networks; (xi) attempt to violate any security features of the SERVICE or gain unauthorized access to the SERVICE (or to other computer systems or networks connected to or used together with the SERVICE), whether through password mining or any other means; (xii) alter or remove any trademarks or proprietary notices contained in or on the SERVICE or Integration Materials; (xiii) engage in framing, mirroring, or otherwise simulating the appearance or function of the SERVICE; (xiv) perform or publish any performance or benchmark tests or analyses relating to the SERVICE or Integration Materials; (xv) make any User Content (as defined in Section 3.4 below) available on or through the SERVICE that infringes, violates or misappropriates any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any person or entity or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, indecent, obscene, offensive, or profane; (xvi) make any User Content (as defined in Section 3.4 below) available on or through the SERVICE that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Company’s prior written consent, or impersonates any person or entity, including any employee or representative of Company; (xvii) make available on or through the SERVICE or Integration Materials any computer code, programs, or programming devices that are designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, the operation of the SERVICE or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the SERVICE to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operation; or (xviii) otherwise use the SERVICE or Integration Materials except as expressly permitted hereunder.
2.3 Updates
You understand that the SERVICE and Integration Materials are evolving. As a result, Company may require you to accept updates to previously installed Integration Materials. You acknowledge and agree that Company may update the SERVICE and Integration Materials with or without notifying you. Additionally, you may need to update third-party software from time to time in order to use the SERVICE and Integration Materials.
2.4 Beta Features and Tools
FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION.
2.5 Support or Maintenance
You acknowledge and agree that, unless you have purchased a SERVICE that expressly includes Support SERVICEs, Company will have no obligation to provide you with any support or maintenance in connection with the SERVICE or Integration Materials.
2.6 Ownership
You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Integration Materials, SERVICE and its content are owned by Company or Company’s suppliers or licensors. Neither this Agreement (nor your access to or use of the SERVICE) transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted by Company under this Agreement. (Name of our brain picture) Icon and all related graphics, logos, SERVICE marks and trade names used on or in connection with the SERVICE are the trademarks of Company and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, SERVICE marks and trade names that may appear on or in the SERVICE are the property of their respective owners.
3. USER CONTENT AND FEEDBACK
3.1 Third Party Software and Databases
The Integration Materials are designed to allow you to integrate the SERVICE into a development environment that is hosted by you or a third party SERVICE provider (“Development Environment”). In the event that you choose to integrate a Development Environment with the SERVICE, you will retain ownership of all of your rights in any data, information, materials and content stored in or accessible via such Development Environment (collectively, “Your Data”), subject to the licenses set forth below. You are solely responsible for Your Data and any Development Environment that you choose to integrate with the SERVICE. You assume all risks associated with use of Your Data and any Development Environment, and Company is not obligated to backup any of Your Data.
3.2 Metadata
In the event that a user chooses to integrate a Development Environment with the SERVICE or Integration Materials, Company may collect, access, and process metadata related to model and feature/metric performance or importance, dataset summary statistics, and other associated statistical metadata (“Metadata”). You agree that Company will have the right, but not the obligation, to collect, access, and process such Metadata.
3.3 Hosting Customer Data on the SERVICE
The SERVICE may include a feature that allows you to choose to pull a copy of Your Data from your Development Environment and upload it to the SERVICE for the purpose of enabling the SERVICE to run models or other calculations specified by you. In the event that you elect to provide Your Data to the SERVICE, you hereby grant Company a non-exclusive right and license to collect, access, process, use and reproduce Your Data for the purpose of providing the SERVICE to You. You further agree not to provide, and represent and warrant that any of Your Data or other User Content (as defined in Section 3.4 below) that is provided to the SERVICE will not contain: (i) any Sensitive Information (as defined below in this Section 3.3), (ii) any Personal Information (as defined below in this Section 3.3); or (iii) any content or material that is otherwise objectionable to us in our sole discretion. As used herein, “Sensitive Information” means (a) individually identifiable health information or protected health information as those terms are defined by the Health Insurance Portability and Accountability Act (“HIPAA”) and its implementing regulations; (b) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standard (“PCI DSS”); (c) Social Security numbers, Social insurance numbers, passport numbers, driver’s license numbers or other government-issued identification numbers; (d) financial account numbers; (e) online account credentials; or (f) other information governed by the Fair Credit Reporting Act, Gramm-Leach-Bliley Act, or Children’s Online Privacy Protection Act. “Personal Information” means any information that constitutes “personal information”, “personal data”, “personally identifiable information” or similar term that is subject to privacy laws, including but not limited to the California Consumer Privacy Act of 2018 (“CCPA”) and the General Data Protection Regulation 2016/679 (EU) (“GDPR”). Customer acknowledges that Company is not a business associate (as that term is defined under HIPAA) or a payment card processor.
3.4 User Content
You acknowledge that any data (including Your Data and Metadata), models, content, materials, text, and other materials that are uploaded to or provided to the SERVICE (collectively, “User Content”) are the sole responsibility of the party from whom such User Content originated. This means that you and other users of the SERVICE, and not Company, are responsible for all User Content that is accessible through the SERVICE. You understand that when using the SERVICE you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, incomplete, misleading, offensive, indecent or objectionable. You use all User Content at your own risk, and you agree that Company will not be responsible for any liability incurred as the result of your use of User Content. Without limiting the foregoing, you acknowledge that all User Content is provided for informational purposes only, and that it should not be taken as professional advice. You acknowledge that Company has no obligation to pre-screen User Content, although Company reserves the right in its sole discretion to monitor and review the SERVICE and pre-screen, refuse or remove any User Content at any time, for any reason or no reason, including if Company believes it violates this Agreement or is otherwise objectionable. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring.
3.5 License to User Content
Company does not claim ownership of User Content. However, when you as a user post, upload or publish User Content on or in the SERVICE (or, in the case of Metadata or Your Data, integrate a Development Environment and/or Your Data with the SERVICE or Integration Materials), then, subject to any applicable Account settings that you select, you grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display such User Content (in whole or in part) for the purposes of operating and providing the SERVICE to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of User Content that you submit or publish to the Knowledge Base or any other “public” or generally accessible area of the SERVICE. By submitting or publishing any User Content to the Knowledge Base or any other “public” or generally accessible area of the SERVICE, you grant a license to such User Content under the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported License. Additionally, you represent that you own such User Content or have all necessary rights to such User Content to enable you to license such User Content under the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported License (and that such User Content is provided to with proper attribution, as applicable). Please note that the Creative Commons Attribution-ShareAlike 3.0 Unported License does allow commercial uses of your User Content as long as such use is compliant with the license terms. You agree that Company may provide attribution to you by your username (which may be a pseudonym) as the contributor of such User Content on the SERVICE through hyperlink and/or through providing a list of all user-contributors.
3.6 Re-Use of User Content
The SERVICE contains User Content which is published by our users, subject to the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported License. When re-using any such User Content that we host, you agree to comply with the relevant attribution requirements of such license. When modifying or making additions to such User Content that you have obtained from the SERVICE, you agree to license the modified or added content under the Creative Commons Attribution-ShareAlike 3.0 Unported License or a later version thereof.
3.7 Feedback
If you provide Company with any feedback, ideas or suggestions regarding the SERVICE or Integration Materials (“Feedback”), you hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the SERVICE, Integration Materials and/or Company’s business. You acknowledge and agree that Company has no obligation with respect to such Feedback and that Company will treat any Feedback you provide to Company as non-confidential. You agree that you will not submit to the Company any information or ideas that you consider to be confidential or proprietary.
3.8 Representations and Warranties
You represent and warrant that you will comply with all applicable laws and have all necessary right, title, interest, authorizations, consents and permissions to: (i) integrate the SERVICE with your Development Environment and access, provide, provide access to, and request Company access, disclose, or submit any of Your Data, User Content, and Feedback, as applicable, that you provide, provide access to, disclose, or submit to Company or the SERVICE, or that you authorize or request Company to access on your behalf, as applicable; (ii) grant the rights, licenses and permissions granted hereunder with respect to Your Data, other User Content, and Feedback; and (iii) access and permit Company to access on your behalf any Development Environment and Your Data, as applicable.
3.9 Procedure for Making Claims of Copyright Infringement
It is Company’s policy to terminate the Account of any user who repeatedly infringes copyright upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the SERVICE in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the SERVICE of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows: ???
4. FEES AND PURCHASE TERMS
4.1 Payment
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for a paid subscription to the SERVICE. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Company with your credit card number or PayPal account and associated payment information, you agree that Company is authorized to immediately invoice your Account for all fees and charges due and payable to Company hereunder and that no additional notice (unless otherwise required by applicable law) or consent is required. You agree to immediately notify Company of any change in your billing address or the credit card or PayPal account used for payment hereunder. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on our website or by e-mail delivery to you.
4.2 SERVICE Subscription Fees
Except as set forth in Section 4.6, you will be responsible for payment of the applicable fee for any SERVICE (each, a “SERVICE Subscription Fee”) at the time you select your subscription package (each, a “SERVICE Commencement Date”). Except as set forth in the Agreement, all fees for the SERVICE are non-refundable. No contract will exist between you and Company for the SERVICE until Company accepts your order by a confirmatory e-mail or other appropriate means of communication.
4.3 Taxes
The payments required under Section 4.2 of this Agreement do not include any Sales Tax that may be due in connection with the SERVICEs provided under this Agreement. If Company determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Company shall collect such Sales Tax in addition to the payments required under Section 4.2 of this Agreement. If any SERVICE, or payments for any SERVICE, under this Agreement is subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense Company may incur in connection with such Sales Taxes. Upon Company’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
4.4 Withholding Taxes
You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Company will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
4.5 Automatic Renewal
Your subscription will continue indefinitely until terminated in accordance with this Agreement. If you do not wish your Account to renew automatically, or if you want to terminate your subscription, please contact Company at support@subconscious.ai and we will remove your account within 24 hours.
4.6 Free Trials and Other Promotions
Any free trial or other promotion that provides a user level access to the SERVICE must be used within the specified time of the trial. At the end of the trial period, your use of that SERVICE will expire and any further use of the SERVICE is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Company to have the charges reversed.
5.INDEMNIFICATION
You agree to indemnify and hold Company and its affiliates, officers, employees, partners, suppliers, licensors and agents (each, a “Company Party”) harmless, from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (i) your use of the SERVICE or Integration Materials in violation of this Agreement; (ii) your violation of applicable laws or regulations or the rights of another party; (iii) your User Content, or (iv) your use of or reliance on any third party User Content or other information sourced from our users that is hosted on the SERVICE. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. This provision does not require you to indemnify any of Company Parties for any unconscionable commercial practice by such Company Party or for such Company Party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Company’s website or any SERVICE or Integration Materials provided hereunder.
6. THIRD-PARTY LINKS & ADS; OTHER USERS
6.1 Third-Party Links
The SERVICE may contain links to third-party websites and SERVICEs, including third party platforms (“Third-Party Links”). Such Third-Party Links are not under the control of Company, and Company is not responsible for any Third-Party Links. Company provides access to these Third-Party Links only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. Your use of all Third-Party Links is at your own risk, and you should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links.
6.2 User Interactions
You are solely responsible for your interactions with other users of the SERVICE and any other parties with whom you interact; provided, however, that Company reserves the right, but has no obligation, to intercede in any user disputes. You agree that Company will not be responsible for any liability incurred as the result of such interactions and that you interact with other users at your own risk.
6.3 Release
You hereby release and forever discharge Company (and its officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to any interactions with, or act or omission of, other SERVICE users or any Third-Party Links. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such Company Party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Company’s website or any SERVICE provided hereunder.
7. DISCLAIMERS
7.1 As Is
THE SERVICE, INTEGRATION MATERIALS, AND ALL MATERIALS, DATA, USER CONTENT, INFORMATION OR OTHER CONTENT ACCESSIBLE THROUGH ANY OF THE FOREGOING, IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND THE COMPANY PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. THE COMPANY PARTIES MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR THAT THE SERVICE OR THE RESULTS OBTAINED FROM USING THE SERVICE WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. THE SERVICE MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICE OR THE RESULTS OR METADATA DERIVED FROM USING THE SERVICE, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF YOUR FIRST USE OF THE SERVICE.
7.2 No Liability for Conduct of Third Parties
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. THE COMPANY PARTIES MAKE NO WARRANTY THAT ANY GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. COMPANY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICE.
8. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY COMPANY PARTY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA OR REVENUE, DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, INTEGRATION MATERIALS, USER CONTENT OR ANY PORTION THEREOF, EVEN IF SUCH COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE, INTEGRATION MATERIALS AND ANY USER CONTENT IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICES OR COMPUTER SYSTEMS, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF: (A) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (B) $100. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. THE FOREGOING LIMITATIONS ON LIABILITY AND CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9. TERM AND TERMINATION
9.1 Agreement Term
This Agreement commences on the date when you accept this Agreement (as described in the preamble above) will remain in full force and effect while you use the SERVICE, subject to Section 10.1 below
9.2 Termination of SERVICE by Company
Company will have thirty (30) days from the SERVICE Commencement Date, or any Renewal Commencement Date, for any SERVICE hereunder, to cancel such SERVICE, in which case Company will refund your SERVICE Subscription Fee (if already paid pursuant to Section 4.1 or 4.2) for the applicable SERVICE. Except as set forth above, the SERVICE Subscription Fee for any SERVICE shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Company is required to do so by law (e.g., where the provision of the Website, the Integration Materials or the SERVICE is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any SERVICE provided to you. You agree that all terminations for cause shall be made in Company’s sole discretion and that, except as expressly set forth in this Section 9.2, Company shall not be liable to you or any third party for any termination of your Account.
9.3 Termination of SERVICE by You
If you want to terminate your Account, you may do so by (a) notifying Company at any time and (b) closing your Account for the SERVICE. Your notice should be sent, in writing, to Company’s address set forth below. YOUR SUBSCRIPTION TO THE SERVICE WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 4.5.
9.4 Effect of Termination
Upon termination of your rights under this Agreement, your Account and right to access and use the SERVICE will terminate immediately. Except as expressly set forth in Section 9.2, Company will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your Account. Even after your rights under this Agreement are terminated, the following provisions of this Agreement will remain in effect: Sections 2.2, 2.6 and 3.3 through 10.
9.5 No Subsequent Registration
If your registration(s) with, or ability to access, the SERVICE or any other Company community, is discontinued by Company due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the SERVICE or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to the SERVICE to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
10.GENERAL
10.1 Changes
This Agreement is subject to occasional revision. If we make any substantial changes, we may require you to accept the changes, notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on the SERVICE. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective upon the earliest of when you provide your acceptance of the changes, thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable), and thirty (30) calendar days following our posting of notice of the changes on the SERVICE. The changes will be effective immediately for new users of the SERVICE. Continued use of our SERVICE following notice of such changes shall indicate your acknowledgement and acceptance of such changes and agreement to be bound by the terms and conditions of such changes.
10.2 Notice
Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: ADDRESS. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery SERVICE or first-class postage prepaid mail at the above address.
10.3 International Users
The SERVICE is controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the SERVICE or Integration Materials are appropriate or available for use in other locations. Those who access or use the SERVICE or Integration Materials from other countries do so at their own volition and are responsible for compliance with local law.
10.4 Government Users
The SERVICE and Integration Materials are commercial computer software and commercial computer software documentation. If you are a U.S. Government agency, this Agreement constitutes the entire agreement between the parties and is binding on government users in accordance with the policy stated at Federal Acquisition Regulation (FAR) 48 CFR 12.212 (for non-defense agencies) or Defense FAR Supplement (DFARS) 48 CFR 227.7202 (for defense agencies).
10.5 Export
The SERVICE may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
10.6 Consumer Complaints
Company is located at the address in Section 10.10. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
10.7 Electronic Communications
The communications between you and Company use electronic means, whether you use the SERVICE or send us emails, or whether Company posts notices on the SERVICE or communicates with you via email. For contractual purposes, you: (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
10.8 Monitoring and Enforcement
Company reserves the right to: (a) remove or refuse to post any of your User Content for any or no reason in our sole discretion; (b) take any action with respect to any of your User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the SERVICE or the public, or could create liability for the Company; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the SERVICE; and/or (e) terminate or suspend your access to all or part of the SERVICE all for any or no reason, including without limitation, any violation of this Agreement.
10.9 Entire Agreement
This Agreement constitutes the entire agreement between you and us regarding the use of the SERVICE. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement shall be governed in all respects by California law, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction. You and Company hereby submit to the exclusive personal jurisdiction and venue of the state and federal courts in the Northern District of California. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.