Technology Logging, Cookies, and Related Techniques
Information about Children
The Service is not intended for use by persons under the age of 13.
Rights under Laws
You may have additional rights under state law to access certain information; for example California residents may have rights under California Code Section 1798.83. We honor those rights.
Location of Processing
Traitify is a United States of America business with its core operations in the United States. Information about You may be processed by Us, our affiliates, business partners, or service providers in the United States and elsewhere in the world where privacy rules may differ from those of the country in which you reside.
Application Program Interface License
"API Key(s)" means unique numbers assigned by Traitify which identify the Third Party Application accessing the Traitify Service via the Traitify API. API Keys are the property of Traitify, may not be shared, publicly or privately distributed or otherwise used except solely to exercise the licensed rights hereunder.
"Licensed Materials" means the Traitify API, the Traitify Data and Content, and accompanying or related documentation, source code, executable applications and other materials.
"User" means an individual who uses the Traitify Service via a Third Party Application.
"Traitify Data and Content" means all programs, data, content, copyrighted and other materials, processes, functionality, information and other matter that can be accessed with or by the Traitify API, or that is accessible by ordinary operation of the Traitify Services. For the avoidance of doubt, Traitify Data and Content includes all User information submitted to Traitify, and all derived data, conclusions or other information created by Traitify from such User submitted information.
"Traitify Marks" means Traitify's name and tradename, trademarks, service marks, logos, trade dress, overall look and feel and other branding made available for use in connection with the Licensed Materials.
"Traitify Service" means the electronic service Traitify makes available for personality trait assessment and related services.
License/restrictions. By using the Traitify API or otherwise accessing Traitify Data and Content, subject to any terms in an Order Agreement, you agree that such access and use is licensed under the following licenses, and limited, as follows:
Traitify grants you a nonexclusive, nontransferable, nonsublicensable, revocable right and license, so long as Traitify has not terminated this Agreement which, except as otherwise provided in an Order Agreement, it may do at any time by terminating the API Key, to use the Traitify API, and only the Traitify API, to access Traitify Data and Content and use the Traitify Service;
You may use the Traitify Data and Content obtained through the Traitify API to provide services to your Users, provided that: (i) any Traitify Data and Content is stored on computers or servers you own or control; and (ii) you make the Traitify Data and Content related to a User solely available to that User, or if your service provides for group sharing, available to other Users who have been authorized by such User to view their Traitify Data and Content;
You must use Traitify Marks in accordance with all conditions imposed by Traitify in the manner of display of such Traitify Marks and such Traitify Marks may only be displayed in connection with Traitify Data and Content as it may be displayed on your service - Traitify Marks may not be displayed on or near third party content or services where such display may indicate that Traitify is associated with, endorses or approves of such third party content. Traitify's trademark guidelines shall be provided to you and may be amended at any time and such amendments shall be effective immediately.
You may not share, publish, disclose or otherwise use the API Keys except solely for your benefit and solely in accordance with the terms of this Agreement. You must promptly report to Traitify any loss or suspected or actual misuse of the API Keys, and obtain a new one in such event.
If Traitify provides technology in the Traitify API to allow single sign on (i.e. such that a User that authenticates on your service will also be automatically authenticated on the Traitify Service) you should make that single sign on technology available to your Users who want to access Traitify Services (which can be in addition to other access methods).
You must not engage in any act that prevents Traitify from logging the access or use of the Traitify API, or otherwise circumvent the proper functioning of the Traitify API.
You will not use the Traitify API or any other information from Traitify to replicate or replace the Traitify Service.
You will not distort the presentation of Traitify Data and Content so that what is displayed or provided in your service is materially different from the Traitify Data and Content provided to you through the Traitify API in respect of a User.
You may not modify Traitify Data and Content and present it as Traitify Data and Content, but see below as to what extensions or supplementary information you can display with your content.
You will comply with all export and import laws - thus, you may not export any Traitify Data and Content (or the Traitify API or the Traitify Service) to a country other than the United States unless you comply with all laws, rules and regulations related to such export.
You may not engage in hacking, cracking, white hat or black hat network or device penetration testing, security consulting or review, security analysis or any other effort to determine the security status of the Traitify API, the Traitify Data and Content, or the Traitify Service, without the express written permission of Traitify. You may not circumvent any access or copy controls placed on any Traitify Data and Content or the Traitify API or Traitify Service. You will immediately report any actual or suspected unauthorized access to the Traitify API or Traitify Data and Content or Traitify Service. All such security information is confidential information of Traitify under this Agreement and any other agreements you have with Traitify.
You will not use, and you will exert your best efforts but in no event less than reasonable care to prevent others from using, the Traitify API, Traitify Data and Content or Traitify Service in connection with any identify theft, spamming (sending any unauthorized or illegal electronic communication that violates any state's or federal law), virus, hacking or cracking effort, malware or any other malicious use.
You will comply with all limitations imposed by Traitify on the bandwidth (frequency and amount of access, calls and use) of the Traitify API.
You won't, and won't attempt, directly or indirectly, or permit another to, interfere with, modify or disable any features or functionality of the Traitify Services, Traitify API, or Traitify Data and Content including, without limitation, any mechanisms used to restrict or control the Traitify Services, Traitify API, or Traitify Data and Content or translate, reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Traitify Services or the Traitify Data and Content or remove or modify any proprietary notices, attribution or marks from or delivered as part of the Traitify Services or the Licensed Materials.
You won't under any circumstances include in or use the Traitify Marks, or any marks that are confusingly similar to or derivative of the Traitify Marks as part of your trade name (registered or otherwise), logos, or other identifiers, trademarks, servicemarks or otherwise.
You will maintain standard server logs of all use of the Traitify API for a period of not less than 90 days, which period may be extended by written notice from Traitify if Traitify is engaged in an investigation of the use of the Traitify API.
Traitify. Traitify and its licensors (and/or the Users), retain all worldwide right, title and interest in and to the Licensed Materials, including all worldwide intellectual property rights therein. As between you and Traitify, Traitify owns all right, title and interest in and to the Traitify Services, the Traitify API, the Traitify Data and Content, the Traitify Marks, and any derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein. Any of Traitify's rights not expressly granted under this Agreement are withheld. You agree and covenant that you will not challenge Traitify's ownership of the Traitify Services, the Traitify API, the Traitify Data and Content, the Traitify Marks, challenge the validity of the licenses granted under this Agreement. If you acquire any rights in the Traitify Services, the Traitify API, the Traitify Data and Content, the Traitify Marks (or any confusingly similar marks), by operation of law or otherwise, you hereby automatically assign and convey such rights to Traitify for no additional consideration other than the rights granted to you herein.
Your Third Party Applications and data. As between you and Traitify, you retain all worldwide right, title and interest in and to your Third Party Applications and data, excluding the Traitify Services, the Licensed Materials, the Traitify Marks, and any derivative works or enhancements thereof, including but not limited to all intellectual property rights therein.
Feedback. You may provide Traitify with feedback or comments related to the Licensed Materials and/or your experience with and use thereof ("Feedback"). You agree that Traitify shall be free to make use of, create derived patents from, make, use, sell (or have made or sold), copy, modify, create derivative works of, publicly display, disclose, distribute, license, sublicense, incorporate, and otherwise use Feedback, including all derivative works thereto, for any and all purposes, commercial or otherwise, with no obligation of any kind to you.
Support. This Agreement does not entitle you to any support for the Licensed Materials, unless otherwise provided in an Order Agreement. Any such support provided by Traitify shall be subject to the terms of this Agreement as modified by any Order Agreement. You are solely responsible for providing all support and technical assistance to Users. You acknowledge and agree that Traitify has no obligation to provide support or technical assistance directly to your Users and you shall not represent to any of your Users that Traitify is available to provide such support.
Creation of content. If a your Third Party Application allows a User to generate material that will be hosted on computers or servers you control or manage, your Third Party Application will provide the User a prominent and clear disclosure detailing how you may use such content and your use must adhere to the restrictions set forth herein.
Removal of content. When you have been notified (for example, through the Traitify API), you will immediately, and in any case not later than twenty-four hours after notification, (including, but not limited to, by modifying your applicable Third Party Applications): (i) delete or remove content that has been deleted or removed from the Traitify Services; (ii) modify content that has been modified on the Traitify Services; and (iii) change the treatment, in your Third Party Applications, of content that has had its sharing options modified.
Monitoring. Traitify reserves the right to monitor your use of the Licensed Materials, API Keys and Traitify Services for any reason or no reason, including to ensure your compliance with the terms and conditions of this Agreement.
Confidentiality. You may from time to time, gain access to proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information that is either marked as "confidential" or disclosed in such a manner that it would be reasonably apparent it should be treated confidentially ("Confidential Information"). You may use Confidential Information only to the extent necessary to exercise your rights under this Agreement. You may not disclose Confidential Information to a third party without the prior express consent of Traitify, provided in writing or by email. You agree that you will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that you would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care. If a third party makes a legal request for Confidential Information, you will promptly notify Traitify in writing and reasonably cooperate with Traitify in protecting such information in such proceeding.
Term and Termination; Survival. Except as provided in an Order Agreement, this Agreement shall commence on the date you first download or otherwise acquire the Traitify API and will remain in effect until terminated by either party by written notice. Traitify may terminate this Agreement immediately if Traitify reasonably determines in its subjective good faith that you or any of your Users have or are likely to violate any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, you will stop using, and either return to Traitify, or at Traitify's election destroy and remove from all computers, hard drives, networks, and other storage media, all copies of the Licensed Materials and any Confidential Information in your possession, and shall certify to Traitify that such actions have occurred. All provisions of this Agreement survive its termination except Sections 2.a and 2.b, provided that to the extent a User has downloaded or otherwise maintained a copy of the Traitify Data and Content, such User shall have a continuing license to use such Traitify Data and Content for that User's own personal purposes.
Representations and Warranties. You represent and warrant that: (i) you have the necessary power and authority to enter into this Agreement, and that the performance of your obligations will not constitute a breach or otherwise violate any other Agreement or the rights of any third party arising therefrom; (ii) you will maintain, throughout the Term, all required rights and licenses related to your Third Party Applications and your Third Party Applications shall not infringe or otherwise violate any third party rights, including but not limited to third party intellectual property rights; and (iii) your uses of the Licensed Materials do and shall comply with all applicable foreign, federal, state and local laws, rules, and regulations.
Indemnification. You hereby indemnify, agree to defend and hold Traitify, its subsidiaries, affiliates, officers, employees, and agents harmless from any and all claims, damages, losses, liabilities, actions, judgments, costs, and expenses brought by a third party arising out of or in connection with: (i) any act or omission by you in connection with your use of the Traitify Services or the Licensed Materials; (ii) your use of the Traitify Services or the Licensed Materials other than as expressly allowed by this Agreement; (iii) your breach of this Agreement, including but not limited to your representations and warranties herein; (iv) your breach of applicable laws, rules, regulations or orders, or any third party obligations; (v) infringement by you of any third party's patent, copyright, trade secret, trademark or other proprietary rights; or (vi) your Third Party Applications and services.
Disclaimer. THE TRAITIFY SERVICES AND THE LICENSED MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TRAITIFY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED MATERIALS AND THE TRAITIFY SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, AND ANY IMPLIED WARRANTIES ARISING UNDER ANY UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT. THERE IS NO WARRANTY THAT THE SYSTEM, THE SOFTWARE, OR ANY INFORMATION, SOFTWARE, COMPUTER PROGRAM, SERVICES, EFFORTS, OR ANY SYSTEM PROVIDED BY LICENSOR WILL FULFILL ANY PARTICULAR PURPOSES OR NEEDS OF LICENSEE OR ANY AFFILIATE. FURTHER, TRAITIFY DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE LICENSED MATERIALS OR THE TRAITIFY SERVICES WILL MEET ANY OR ALL OF YOUR REQUIREMENTS OR THAT SUCH USE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE. AND
Limitation of Liability. In no event shall Traitify be liable to you for any special, incidental, indirect, direct, exemplary, punitive, compensatory, or consequential damages (including loss of use, data, business or profits) arising out of or in connection with this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not Traitify has been advised of the possibility of such loss or damage. Any claim arising our of or relating to this Agreement must be brought within one (1) year. In any case, Traitify's aggregate liability under this Agreement will not exceed fifty U.S. dollars (US$50.00). The foregoing limitations will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
Miscellaneous. This Agreement constitutes the entire agreement among the parties with respect to the subject matter of this Agreement and supersedes and merges all prior proposals, understandings, and contemporaneous communications, whether oral, written or electronic. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any modification of or changes to this Agreement must be in a writing duly authorized by an authorized representative of Traitify or pursuant to the provisions herein. You may not assign any of the rights or obligations granted under this Agreement, voluntarily or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets) except with the express written consent of Traitify, and any attempted assignment in violation of this paragraph is void. Traitify may assign, transfer or delegate any of its rights and obligations hereunder without notice or consent. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts in Maryland. The section and paragraph headings in this Agreement, along with all provided annotations, are for convenience only and shall not affect the interpretation of this Agreement. The failure of Traitify to enforce any part of this Agreement shall not constitute a waiver of its right to later enforce that or any other part of this Agreement. Waiver of compliance in any particular instance does not mean that Traitify will waive compliance in the future. In order for any waiver of any covenant or right under this Agreement to be binding, such waiver must be memorialized in a writing duly authorized by Traitify. Unless otherwise specified, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. All notices to Traitify shall be sent to email@example.com. All notices to you shall be sent to the location or email address specified in your Traitify API or Traitify Data and Content access registration information.
Master Subscription Agreement
This agreement governs both Free Services of the Purchased Services as defined below. You accept this agreement and it becomes a binding contract upon creating an account at traitify.com and using the order process at that site. You also reconfirm this agreement upon each login or use of the service. You may also accept this agreement by clicking a box indicating your acceptance or by executing an order form that references this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms "you" or "your" shall refer to you, individually, as well as such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement, and you must immediately cease use and you may not use the services in the future. The functionality and information provided at traitify.com or at any subdomain created for you (the "Service") provides self directed team personality assessment and team analytics services. The Service is for Your internal business or personal use, and may not be used by You to provide services to anyone outside of Your organization. You may not share Your login credentials. You may not attempt to access data or programs that belong to our other customers or clients, or acquire their login credentials. You accept this Agreement by creating an account, logging in, using the Service, or by accepting this Agreement when You check a box or click a button indicating such acceptance.
"De-Identified Data" means meta data generated by the operation of the Services, aggregated data, and other data that does not identify an individual or business.
"Free Services" means (a) any Services that are provided for free, such as a fixed number of assessments; and (b) any Services that are provided free for a limited period of time.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for Purchased Services hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference. You agree that Order Forms may be entered into using solely or partially electronic signature and electronic contracting process and such electronic signatures or acceptances shall be valid as signed writings.
"Plan" means a payment plan that discloses the fees and any additional terms associated with Your Purchased Services.
"Purchased Services" means Services that You purchase under an Order Form, as distinguished from Free Services.
"Service(s)" means the functionality, data, information, reports, processing capabilities and other features provided on, or that are made available from or otherwise in respect to the website located at traitify.com or any subdomain created for You including but not limited to online and mobile applications provided thereon or that access such site or data, as well as any other communications services We provide or enable (i.e. electronic mail, text, iMessage, Skype, Twitter, fax etc).
"Subscription Term" means the period of time specified in an Order Form that You are authorized to use the Service, plus any renewals thereof as provided in Section 12.2.
"Subscription" means the agreement to subscribe to the applicable Plan You have chosen.
"We," "Us," "Our" or similar pronouns means Woofound, Inc. d/b/a Traitify, a Delaware limited liability company.
"You" or "Your" or similar pronouns means you, individually, and the company or other legal entity for which you are accepting this Agreement.
"Your Data" means all electronic data or information submitted by You in respect of using the Services, but does not include De-Identified Data.
We may offer Free Services. Additional terms and conditions may appear on the web pages associated with Free Services. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. FREE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND and any warranties made elsewhere in this agreement.
Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a Subscription Term as defined in an Order Form. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Us regarding future functionality or features.
Service Licensing. You are authorized to use Our Services based on the Plan You purchased.
Service Pricing. When You sign up for Our Purchased Services, You are required to select a Plan from the list of Plans presented and authorized by Us. This Plan will detail Our fees and may or may not contain various provisions, surcharges, and overage use charges as well as any usage limitations. We may modify Our Purchased Service pricing or ask You to select a different plan at any time, unless the plan You select has a time commitment associated with it - in such case the pricing will not be modified during the annual period which You have subscribed to, but pricing may be modified for future Plan years.
USE OF THE SERVICES
Our Responsibilities. We shall during a Subscription Term: (i) provide to You basic email support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall schedule to the extent practicable during evening or weekend hours), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services in accordance in all material respects with applicable laws and government regulations effective in the United States. Please see section 11 for limitations on Your remedies if We breach this section.
Your Responsibilities. You shall: (i) be responsible for complying with this Agreement, (ii) be solely responsible for the accuracy, quality, use, development, integrity and legality of Your Data and of the means by which You acquire and use Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us in writing and via phone call promptly of any such unauthorized access or use of the Service or the access credentials We provided You, and (iv) use the Services only in accordance with this Agreement, applicable Order Forms, and applicable laws and government regulations. You shall not (a) sell, resell, sublicense, offer as a service bureau, rent or lease the Services, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy, publicity or personal rights or other obligations owed to third parties, (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (e) comply with and not violate the Acceptable Use Policy; and (f) attempt to or actually gain unauthorized access to the Services or their related systems or networks.
Usage Limitations. You may not use the Service to store protected health information and/or payment information such as credit card information. You may also not use the Service in a way that overloads the system and makes it unavailable, slow, or unusable to other users of the Service. Services may be subject to other limitations. Any such limitations are specified in Your Plan or any other documentation. The Services may provide real-time information to enable You to monitor Your compliance with such limitations.
Security. We will make commercially reasonable efforts to ensure the confidentiality, integrity, and availability of Your Data. While We are committed to using such efforts to ensure that Your Data is safe and secure, We reserve the right to decide what efforts are commercially reasonable. We will not be responsible for any loss of data, income, clients, money or any other of Your resources due to any security breaches or Your misuse of Our Services or criminal acts of third parties.
NO LIABILITY FOR THIRD-PARTY SERVICES OR PROVIDERS; USE OF RESULTS
Third party providers. Our Service may include, and from time to time We may offer, third party applications, data, and services integrated with Our Service. In addition, Our Service may be integrated into a third party service or platform. We are only responsible for Our Services, and You agree that We shall not be liable, or otherwise responsible, for the accuracy, performance, reliability, availability or any other feature, failure or damage caused by any third party service, plugin, software, platform or other functionality that is not directly supplied by Us. Each such third party service, platform, software or plugin may contain additional terms. You agree that if you are damaged or have any issue with such third party service, platform, software or plugin, You will contact the vendor/supplier of that third party service, platform, software or plugin directly, and seek all remedies directly with them and not from Us. We will use reasonable efforts to assist You in resolving any issues with third party services that are provided through Us.
Advertisements. To the extent Information on the Service includes advertising, promotions or other sales related data, We are not responsible for errors in such Information, and such Information does not and is not an offer to enter into a contract, but rather, is merely a solicitation to receive offers from You. We do not vouch for, review, validate, accept responsibility for or otherwise undertake any liability arising from, third party advertiser statements, products, services or other actions of third parties. Unless separately stated in writing by Us, we reserve the right to include advertising in the Service and to use De-Identified Data in connection with such advertising. One or more Plans for Purchased Services may include the ability to reduce or eliminate advertising.
Copyright Complaints. We respect the intellectual property rights of others. When We receive proper notification of alleged copyright infringement, We promptly remove or disable access to the allegedly infringing material as described herein in accordance with the Digital Millennium Copyright Act, and We may terminate the accounts of persons engaging in such acts, or take other means, including IP blocking, to disable such access. If You believe that any material on the Service infringes upon any copyright which You own or control, You may send a written notification of such infringement to Our Designated Agent at firstname.lastname@example.org, and to Woofound, Inc. 101 N Haven Street, Baltimore, MD 21224 USA.
No liability for use of results. We are not liable for Your use of the results, for example, in connection with making hiring or firing or conditions of employment decisions.
FEES AND PAYMENT FOR PURCHASED SERVICES
Fees. You shall pay all fees specified in all Order Forms and/or Plans hereunder. Except as otherwise specified herein or in an Order Form or Plan, (i) fees are quoted and payable in United States dollars (ii) depending on the Plan You select, fees may be based on either Services purchased or on quantity of actual usage of the Service, and (iii) payment obligations are non-cancelable and fees paid are non-refundable.
Invoicing and Payment. Unless set forth specifically in an Order Form, You agree to timely pay fees in U.S. dollars via check or money order (drawn on a US Bank, in readily available funds), wire/ACH transfer or via credit card. If You pay by credit card, You authorize Us to charge such credit card for all Services listed in the Order Form or Your Plan for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 12.2. If you pay by wire/ACH, You authorize us to initiate the transfer in accordance with the payment schedule in the Order Form. All other forms of payment shall be deemed paid when We actually receive the check and it clears our bank. Regular charges shall be made in advance, either monthly, annually or in accordance with any different billing frequency stated in the applicable Order Form or Plan. Any usage charges shall be made monthly, after the end of the billing period. If You have designated credit card as the payment method and We are unable to charge Your credit card, We will notify You by e-mail and give You a reasonable time (preferably in 5 business days) to update Your billing information and satisfy the payment. You are responsible for maintaining complete and accurate billing and contact information in the Services.
Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, such charges may accrue late interest at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for Services is 30 or more calendar days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute; provided that if such dispute is not resolved within 60 calendar days, We reserve the right to enforce Section 6.3, 6.4 and the other provisions of this Agreement.
Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall may be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. You owe Taxes regardless of whether We invoice for them, and, unless You pay such Taxes to us and We fail to remit such Taxes to the appropriate tax authority, You hereby indemnify, defend and agree to hold Us (and our officers, directors, members, employees and other agents and affiliates) harmless from any and all actions, damages, losses and other amounts claimed by an tax authority for non- payment of such Taxes, and unless expressly prohibited by law, such indemnity shall include payment of all fines, interest and penalties associated with the non-payment/late payment/insufficient payment of such Taxes. You will provide us with all tax information (such as Form W-9) as may be required for Us to comply with Our legal obligations.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related patent, copyright, trademark, trade secret and other proprietary rights therein (intellectual property rights), and all enhancements, modifications and other alterations or derivatives thereof, regardless of whether such enhancements, modifications and other alterations or derivatives thereof arise from any suggestion, input, idea, or other submission by You. For the avoidance of doubt, You hereby assign over to Us (and automatically assign over to us in the future) all right, title and interest to all intellectual property rights described or disclosed in any suggestion, input, idea, or other submission by You relating to the Service; provided however that at no time shall We own any rights in Your Data. No rights are granted to You hereunder other than as expressly set forth herein.
Restrictions. You shall not (and covenant not to) (i) permit any third party to access the Services through You except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer, decompile or deconstruct the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data; provided however that We have a license and right during the Subscription Term to use Your Data solely to provide the Services to You and as otherwise permitted herein, or as required to comply with applicable law.
Ownership and Use of De-Identified Data. We own all De-Identified Data, and We have the right to sell, license, sublicense, transfer and otherwise use such De-Identified Data in any manner, without payment to You, or reduction or other offset to any fees We charge.
Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party"), whether directly, or indirectly through others, to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. De-Identified Data is Our Confidential Information.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not, except to provide the Services or prevent or address Service or technical problems, or at Your request in connection with customer support matters: (a) modify Your Data, (b) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (c) access Your Data. From time to time We may perform general analysis of audit trails and any associated information in order to (i) determine Service use statistics and (ii) validate and enforce data security. Such analysis will not disclose Your confidential information. We will not disclose results of such analysis to anyone outside of Our organization unless permitted by You, required by law, or required by an external business partner (such as a bank) in order for Us to comply with our legal obligations to such partner, provided that in such cases such business partner shall be obligated to execute a non disclosure agreement that contains terms not materially less protective of the Disclosing Party than are provided herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
WARRANTIES AND DISCLAIMERS
Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. You represent that You will not transmit to Us Malicious Code. We warrant that We will scan our Services and software with a commercially available up to date antivirus scanner, and will not knowingly provide or otherwise make available such information or Services unless such scan discloses no known Malicious Code that is detectable by such antivirus service.
Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES OR COVENANTS HEREIN THE SERVICE IS PROVIDED "AS IS WHERE IS" WITHOUT ANY OTHER WARRANTY OF ANY KIND AND WE HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON- INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING UNDER ANY UNIFORM COMMERCIAL INFORMATION TRANSACTIONS ACT. THERE IS NO WARRANTY THAT ANY SERVICE INFORMATION, POSTINGS, CONTENT, EFFORTS, SERVICES, THE SERVICE OR ANY SYSTEM PROVIDED BY US WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS.
Indemnification. In addition to any other indemnity provided herein, You hereby covenant to indemnify, defend and hold Us (and our members, owners, officers, employees, agents, affiliates and other persons acting on Our behalf) harmless from and against any Claim made or brought against Us by a third party: (i) alleging that Your Data, or Your use of the Services, are in violation of this Agreement, infringe or misappropriate the intellectual property or other rights of a third party, violate contractual or other rights of such third party, or violates applicable law, rules, regulations or orders; (ii) arising from Your (or Your agents, or other persons who act on Your behalf) negligent or intentional action or omission, breach of this Agreement, or failure to comply with applicable law. Without limiting the foregoing, You shall indemnify Us for any damages finally awarded against, and for reasonable attorney's fees incurred by, Us (and our members, owners, officers, employees, agents, affiliates and other persons acting on Our behalf) in connection with any such Claim; provided, that We (a) give You written notice of the Claim (provided We are only responsible for losses to the extent of lack of notice if You are actually prejudiced thereby); (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
Infringement claims. In the event a third party makes a claim that the Service infringes its intellectual property or other rights, You shall give Us prompt written notice of such claim. We shall have the right to among other actions, seek a license, resolve, provide a design-around, or otherwise make modifications to avoid such infringement or other rights claim. In Our discretion if We determine that the above actions are commercially infeasible, in addition to any other rights herein, may terminate this Agreement or the applicable portion of the Services that is alleged to cause the infringement or otherwise violate third party rights, and refund to You any pre-paid amounts or portions thereof relating to such terminated portion of the Service. This refund is Your exclusive remedy in the event of a third party claim that the Service infringes their intellectual property or other rights.
LIMITATION OF LIABILITY AND REMEDY
Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $1,000 OR THE AMOUNT ACTUALLY PAID BY YOU HEREUNDER IN THE ONE MONTH PRECEDING THE DATE THE INCIDENT GIVING RISE TO THE CLAIM ACCRUED. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU, YOUR AFFILIATES, OR ANY OTHER PERSON WHO USED OUR SERVICE WITH YOUR ACCESS RIGHTS FOR ANY LOST PROFITS OR LOST REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER ARISING HEREUNDER OR UNDER OTHER APPLICABLE LAW, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Repair Or Replace Remedy. You agree that your sole remedy in the event you have any claim against Us in respect of the provision of the Service is for us to repair, replace or otherwise correct such Service to meet the warranty provided for herein; under no circumstances will We be liable to You in such cases for any damages, costs or fees of any kind, including but not limited to actual, compensatory, direct, incidental, punitive or consequential damages, whether or not occasioned by Our negligence; provided however that if this provision is determined to have failed of its essential purpose or is otherwise deemed or determined to be unenforceable, You agree that this provision is an independent limitation from all other limitations of remedies herein, and all such other limitations on remedy, including but not limited to those in Sections 11.1 and 11.2 shall survive and remain applicable to any claim you make, including but not limited to any claim that We failed to provide an effective repair, replacement or re-performance of services.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date You accept it and continues until the all Subscription Terms granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a Free Services period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the Free Services period. We reserve the right to terminate or change Free Services at any time, and if we terminate such Free Services this agreement shall also terminate with the termination of such Free Services unless You select a Plan for Purchased Services.
Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form or Plan and continue for the Subscription Term specified therein or in the Plan, whichever is longer. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is longer), unless either party gives the other notice of non-renewal at least one day before the end of the relevant Subscription Term. We may change the price for Services upon giving You 30 days notice before the end of any applicable Subscription Term or renewal thereof.
Termination for Material Breach. A party may terminate this Agreement for Material Breach: (i) upon 30 calendar days written notice to the other party which notice explains in detail the basis for the claim of a material breach, if such material breach described in such notice remains uncured at the expiration of such period, or (ii) immediately without notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If We determine that Your use or actions are causing or likely to cause material and imminent damage to our ability to provide the Service, We may terminate this Agreement and/or or suspend Your access to the Service immediately without notice. We shall endeavor in subjective good faith to give You notice if We take this emergency action.
Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the Subscription Term of all subscriptions after the effective date of termination. Upon any termination for cause by Us or as a result of a breach by You of this agreement, You shall pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
Return of Your Data. Upon Your account termination, We will archive Your Data for a period of up to 30 calendar days, unless otherwise instructed by You. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, and unless We are legally prohibited from doing so, We may delete all of Your Data in the Service or otherwise in Our possession or under Our control. If We retain Your Data, we shall do so consistent with the provisions outlined in Section 8.3.
Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.2 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5, 13 (Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
GOVERNING LAW, ARBITRATION AND JURISDICTION
Jurisdiction. This contract will be governed by the laws of the State of Maryland, exclusive of its conflicts of laws provisions.
Arbitration. Except for solely equitable claims which may be pursued immediately and directly in court, all claims by a party for breach of this Agreement that are not resolved by mutual written agreement shall be settled by binding arbitration before a single arbitrator under the rules of the American Arbitration Association. The location of such arbitration shall be in the State that Our principal offices are located at the time the dispute arises, or at a location determined by the arbitrator. The parties shall mutually agree on an arbitrator or if they cannot, the arbitrator shall be appointed under the rules of the American Arbitration Association. Arbitration may be commenced by either party by giving written notice to the other party that the dispute has been referred to arbitration under this Section. Any award rendered by the arbitrator shall be conclusive and binding upon the parties, provided that any such award shall be accompanied by a written opinion giving the reasons for the award. This Section shall be specifically enforceable by the parties and the decision of the arbitrator may be filed under the Federal Arbitration Act or any equivalent state arbitration act as an award of arbitration and shall be a judgment of record in such court; provided however, that either party may appeal the decision of the arbitrator as if such decision had been rendered by such court sitting without a jury, subject to all court rules and procedures for collection and stay of judgment.
Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination unless the party receiving such email responds that the email is sufficient notice). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and consents to the exclusive jurisdiction of the applicable courts above.
Waiver of Jury Trial. 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 THIS AGREEMENT.
Export Compliance. The Service is not for export, and may not be used or exported outside of the United States. If We agree in writing with you in a separate Agreement, You may use the Service from a remote non U.S. jurisdiction, provided that You covenant to comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting You (i) shall ensure that all such remote non U.S. users are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) shall not permit users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, intended or implied.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 this Agreement shall remain in effect.
Attorney Fees. You shall pay on demand all of costs incurred by Us to collect any fees or charges due to Us under this Agreement, or in connection with any claim arising hereunder or under applicable law whether or not arising hereunder, or to otherwise enforce this Agreement, where "costs" shall include Our reasonable attorneys' and other professionals' fees. You further agree that this covenant shall survive any judgment and this duty and obligation to pay "costs" shall continue until full collection of the judgment, including but not limited to all appeals of any decision.
Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Us (not to be unreasonably withheld). Notwithstanding the foregoing, You may assign this Agreement in its entirety (including all Order Forms), without Our consent, to Your affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets so long as such transferee expressly agrees to this Agreement. We may assign this Agreement at any time, to any person. Any assignment by a party in violation of this provision is void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Agreement Changes. We may add to, change or remove any part of this Agreement at any time, by giving notice on the Service (such notice may be provided at the time you login, or via a textual notice appearing on the Service that terms have changed, or via email or other reasonable means. Your continued use of the Service after we make any changes to this Agreement constitutes Your acceptance and agreement to such changes.
Entire Agreement. This Agreement, including all exhibits, documents incorporated by reference, and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. No employee, agent or other person associated with Us has the right or power to amend, waive or otherwise orally modify this Agreement.
No adverse construction. You and We have had the opportunity to consult with, review and negotiate the terms and provisions of this Agreement and use of the Service, and neither party shall therefore be subject to any adverse construction rule as the draftsperson of the Agreement.
Electronic Communications. You agree to transact business with Us using electronic communications, either via web forms on the Service, or via email. Electronic communications will be deemed received by You when Your electronic communication system reports that any electronic communication We send You has been received by Your system, regardless of whether You ever actually open or read such electronic communication. We may, but are not required, to use return receipt requests. Unless specifically required by applicable law or as otherwise provided herein, You consent to receive all notices, information, and other communications from Us concerning any subject matter, via electronic communication. It is Your responsibility to maintain valid electronic communication addresses, and We may terminate Your access to the Service without liability to you if, after We give You reasonable prior notice, You fail to update and maintain Your electronic communication addresses.
We may add, change, discontinue, remove or suspend any and/or all Services, including features and specifications of products described or depicted on the Service, temporarily or permanently, at any time, without notice and without liability. If We discontinue a Service other than as a result of a breach by You and You have Purchased Services, we will refund to You a pro-rata equitably apportioned amount for the unused Purchased Services that we have discontinued.
An improved method for providing a consumer matching service, of the type having the steps of establishing a database of participating businesses which includes information on the experiences available from these businesses and also collecting consumer contact and experience sought information, includes the steps of: (a) establishing a consumer personality trait profile in which one's personality traits are predictive of how one is most likely to make a purchase or selection decision as it relates to choosing between an array of experiences available to a consumer, (b) ascribing to each of the available experiences similar personality traits, and (c) matching the consumer personality trait profile to the personality traits ascribed to the available items so as to compile for the consumer a list of ranked businesses which offer the experiences being sought by the consumer and most optimally match to the consumer's personality trait profile.
An improved system for matching individuals seeking personal relationships includes: (a) a plurality of personality categories into which an individual may be categorized, (b) a plurality of psychology-based, personality traits, (c) a plurality of preferences on various subjects that an individual may have, (d) a plurality of images for consideration by an individual, each of the images configured such that an individual who would chose to be associated with an image can be assessed to possess one of the plurality of personality traits and preferences, (e) a user interface for presenting the plurality of images and allowing an individual to identify with which of these the individual elects to be associated, and (f) an algorithm configured to utilize these elected associations to categorize this individual into one of the personality categories and to ascribe to the individual a specific set of preferences in various subject areas.
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