End User Service Agreement
Last Updated: December 1, 2023
Welcome to CodeComply! The Platform (as defined below) is owned and operated by CodeComply.AI, Corp., a Delaware corporation (“we,” “us,” or “our”). For purposes of this End User Service Agreement (these “Terms”), “Services” means, collectively: (i) our proprietary cloud-based software and artificial intelligence platform known as “CodeComply” (the “Platform”), including our AI Services (as defined below), which may assist you with evaluating construction plans’ compliance with applicable regulatory and/or industry codes or standards; and (ii) any email notifications or other mediums, or portions of such mediums, through which you have accessed these Terms.
We update these Terms from time to time. If you have an active subscription to the Platform, then we will use commercially reasonable efforts to let you know via a pop-up alerting you of the change prior to or while you are accessing your Platform account, or by email, in our discretion, except (1) when we launch a new service or feature, or (2) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. If you do not agree to any modification or other update, then your sole remedy will be to terminate the Agreement (and your use of the Services, including the Platform, as a result). Your continued use of the Services (including, without limitation the Platform) following any change to these Terms is and will be deemed to be acceptance of all changes.
PLEASE BE ADVISED THAT THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE ALL CLAIMS AND DISCLAIMERS OF WARRANTIES AND LIABILITY. THESE TERMS ALSO ALLOW YOU TO PURSUE CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS, AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. AS A RESULT, YOU MAY SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS.
WE MAY IMMEDIATELY TERMINATE YOUR ACCESS TO THE SERVICES (IN WHOLE OR IN PART) IF YOU FAIL TO COMPLY WITH ANY PROVISION OF THESE TERMS, IF WE BELIEVE YOUR USE OF ALL OR ANY PORTION OF THE SERVICES WILL REFLECT POORLY ON US, OUR SERVICES OR OUR GOODWILL, OR IF WE OTHERWISE DEEM YOUR USE OF THE SERVICES TO BE ILLEGAL OR OTHERWISE INAPPROPRIATE, IN EACH CASE, IN OUR SOLE AND ABSOLUTE DISCRETION.
THE INDIVIDUAL ACCEPTING THIS AGREEMENT FOR A BUSINESS ENTITY AFFIRMS THAT HE OR SHE HAS BEEN AUTHORIZED BY THE BUSINESS ENTITY TO ACCEPT THESE TERMS ON ITS BEHALF.
If there is any conflict between these Terms and an Order Form, the provisions of these Terms shall control.
If you have entered into a separate written agreement for the Services with us (an “Existing Agreement”), then these Terms only apply to you to the extent that they do not conflict with that Existing Agreement or to the extent that these Terms cover subject matter outside the scope of that Existing Agreement. If you have not entered into an Existing Agreement with us, then these Terms apply to you in their entirety.
Table of Contents:
- Provision of Services and Responsibilities
- Description and Limitations of the Platform
- Customer Content Usage
- Intellectual Property and Propriety Rights
- Term and Termination
- Limitations on our Liability
- Infringement Mitigation
- Freemium Subscriptions
- Our Remedies
- Disputes: Arbitration Agreement, and Class Action Waiver
The capitalized terms listed below have the following meanings:
“Authorized User” means any individual who is authorized by virtue of such individual’s relationship to, or permissions from, you, to access and receive Customer Content and use the Services on your behalf pursuant to these Terms.
“Customer Content” means any content, information, materials, documents, plans, or data, including construction data or plans, provided to or uploaded to the Services by you or your Authorized Users.
“Documentation” means the online screen-share demonstration materials, marketing collateral, and other materials in written or electronic form provided to you by us in connection with your subscription to the Services.
“Enhancements” means the following: minor modifications, revisions, and corresponding Documentation with respect to the Services, including the addition of enhancements or improved performance made available by us to the Services; however, Enhancements do not include the addition of New Features not originally included as part of the Services described on a particular Order Form.
“Maintenance Modifications” means bug fixes, patches, modifications, or revisions to the Services that correct errors therein; however, Maintenance Modifications do not include New Features not originally included as part of the Services described on a particular Order Form.
“New Features” means those significant technological or service features and/or tools that we develop over time, which are offered to you as additional features for an additional fee and are distinct and separate from included Enhancements and Maintenance Modifications.
“Subscription Fee” means the agreed-upon subscription fee for the Services as stated on the Order Form.
“User Credentials” means unique User ID and Login Password for access to the Services provided by us.
“AI Services” are services that are labeled or described by us as including, using, powered by, or being an Artificial Intelligence (“AI”) system.
Provision of Services and Responsibilities
- Subscription Rights and Access. We grant you the nonexclusive, revocable, limited-time subscription and right to use the Services in accordance with this Agreement. Further, we agree that you may access and use, and permit each Authorized User to access and use, the Services for its intended purpose, in accordance with the specifications set forth in any Documentation and subject to the terms of this Agreement and the limits and/or other use restrictions specified on each Order Form. Subject to your payment of the fees set forth in the Order Form, we will provide to you and your Authorized Users access to the Services. We will provide you and your Authorized Users with support in accordance with our then-current support policies for the Services, and access to Enhancements and Maintenance Modifications as they become available. You and your Authorized Users are solely responsible for ensuring that you and they have sufficient and compatible hardware, software, telecommunications equipment, and Internet service necessary for the use of the Services. All other rights not expressly granted in this Agreement are reserved by us. We may from time to time make or issue Maintenance Modifications, Enhancements or New Features available to you under the terms and conditions of the Agreement. Maintenance Modifications, New Features and/or Enhancements made available to you (if any) will constitute a part of the Platform for purposes of the Agreement, however, note that we may offer New Features for an additional fee, which are subject to our then current, commercial pricing for the same.
- Authorized User and User Credentials. If you are a business entity, you may permit your Authorized Users to access or use the Services for your internal business purposes only. You are responsible for any access or use of the Services by any of your Authorized Users and you shall not permit your account to be accessed by individuals who are not your Authorized Users. Each named Authorized User must have a single unique User ID and Login password and keep their User Credential information strictly confidential and not share such information with any unauthorized person. You understand that, by providing access to your Authorized Users, including those authorized through the “Collaboration Feature” of the Services, you are providing Authorized Users with access to Customer Content and the UserID of Authorized Users on the Services.
- You will be responsible for all activities that occur under your account and for all actions by you and your Authorized Users. You will not, and will not authorize or permit any Authorized User to directly or indirectly: (i) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to all or any portion of the Services (including, without limitation, the Platform), including any related or underlying tool, module, software, documentation or data (collectively, “Technology”); (ii) modify, translate, or create derivative works of, from or otherwise based on the Services (including, without limitation, the Platform) or any Technology, in whole or in part; (iii) access and/or use the Services (including, without limitation, the Platform) or any Technology for timesharing or reselling purposes or otherwise for the benefit of a third party (other than expressly authorized by us); (iv) upload to or otherwise use the Services (including, without limitation, the Platform) or any Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third-party rights, including privacy rights; (v) upload to or otherwise use the Services (including, without limitation, the Platform) or any Technology to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example (but not by way of limitation), viruses, worms, time bombs and Trojan horses; (vi) interfere with or disrupt the integrity or performance of the Services (including, without limitation, the Platform) or any Technology (in whole or in part); (vii) attempt to gain unauthorized access to the Services (including, without limitation, the Platform), the Technology or any of their related systems or networks, or access or use the Services (including, without limitation, the Platform) or any Technology other than by an Authorized User through the use of his or her own then valid User Credentials; (viii) permit direct or indirect access to or use of the Services (including, without limitation, the Platform) or any Technology in a way that circumvents a contractual usage limit; (ix) frame or mirror the whole or any part of the Services (including, without limitation, the Platform) (including any Technology); (x) access the Services (including, without limitation, the Platform) and/or the Technology (in whole or in part) in order to build a competitive product or service or for any benchmarking purposes; (xi) remove any proprietary notices or labels of or from the Services (including, without limitation, the Platform) or the Technology (in whole or in part); or (xii) access or use the Services (including, without limitation, the Platform) or any Technology in any way that violates the Agreement, any third-party rights, or any applicable laws, rules, regulations or orders having the force of law (collectively, “Laws”), including, without limitation, all applicable anti-spam, telemarketing, export control, privacy, and anti-terrorism laws and regulations.
- You will be responsible for any breach of this Agreement by your Authorized Users and you agree to enter into agreements with your Authorized Users that contain terms that impose restrictions in all material respects no less than those imposed on you herein, including, but not limited to, the provisions regarding the use of the Services and protection of our intellectual property.
- You will notify us of any unauthorized use of your passwords or account, or any other breach of security that is known or suspected by you. You agree not to include any irrelevant, unnecessary, fraudulent, or deceptive terms or instructions into the Services (including, without limitation, the Platform) in an attempt to “break”, “steer”, or otherwise attempt to solicit results from the Services (including, without limitation, the AI Services) that would violate this Agreement or any applicable Laws.
- Customer Content. We will process Customer Content in order to provide and enhance the Services and the Platform and in accordance with Section 4(a) below. You represent and warrant that you have all necessary rights in the Customer Content to grant us the right to use such Customer Content, and you hereby grant us a non-exclusive, worldwide, royalty-free, transferable, and fully paid license to use, modify, and distribute the Customer Content as used by us to provide and enhance the Services. You represent and warrant that any Customer Content hosted or used by us as part of the Services will not (i) infringe or violate the rights of any third party; (ii) be deceptive, defamatory, obscene, or unlawful; or (iii) violate any Laws. You acknowledge that any use of the Services by you or Authorized Users contrary to or in violation of the representations and warranties in this section constitutes unauthorized and improper use of the Services. You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. You and we acknowledge that we do not and cannot review all Customer Content and will not be responsible for such content, and that you instruct us to delete, move, or edit any Customer Content that we determine violates or might violate this Agreement, or any applicable Law, or is otherwise unacceptable. You acknowledge and agree that we may share Customer Content with third parties as necessary to provide and enhance the Services.
- Your Responsibilities. You will ensure (and represent, warrant and covenant) that your Customer Content and all other information, content or other materials provided by you or your Authorized Users to us via the Services (including, without limitation, the Platform) or otherwise pursuant to the Agreement as well as your activities in connection with, use of or access to the Services (including, without limitation, the Platform) are accurate, complete and do not and will not violate any Laws or infringe on a third party’s intellectual property or other rights. You will be solely and completely responsible for the accuracy, quality and legality of any and all of your Customer Content, the means by which you acquired your Customer Content, and the use of the same by you and your representatives. Without limiting the generality of the foregoing, if your Customer Content includes any personal information or proprietary or otherwise confidential information of or in respect of your clients, you will ensure that your and your representatives’ collection and submission into the Services (including, without limitation, the Platform) of the same, and your, your representatives’ and our use and storage of the same as contemplated by the Agreement does not violate any third party rights (including, without limitation, any privacy rights and/or any contractual obligations to your clients or any other third parties), and otherwise complies with Laws, including, without limitation, any Laws relating to the consent of or disclosure to consumers with respect to the collection, use or disclosure of such information as contemplated by the Agreement. If we receive information indicating or we otherwise reasonably believe that all or any portion of any your Customer Content or use of the Services (including, without limitation, the Platform) in connection therewith may violate Laws, any third-party rights or otherwise could reflect poorly on us or negatively impair our goodwill (in each case, in our sole and absolute discretion), we may so notify you and, if you fail to remove or modify the relevant portion of your Customer Content from the Services (including, without limitation, the Platform) within two business days, we may delete the relevant portion of your Customer Content from the same. Under no circumstances will we be liable in any way for any: (i) of your Customer Content transmitted or viewed while using the Services (including, without limitation, the Platform); (ii) errors or omissions in your Customer Content; or (iii) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any of your Customer Content.
- Technical Requirements. You and each of your Authorized Users will and are responsible for: (i) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services (including, without limitation, the Platform), including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, mobile devices and the like (collectively, “Your Systems”); (ii) maintaining the security of all of Your Systems; (iii) all uses of your account(s) or Your Systems by your representatives; and (iv) acquiring any third party rights, licenses and/or consents necessary to connect to, integrate with, access or otherwise use the Services (including, without limitation, the Platform) or any feature, functionality or tool thereof, in whole or in part. You acknowledge and agree that failure to obtain and maintain Your Systems, to meet any applicable technical requirements of or relating to the Services (including, without limitation, the Platform), or to obtain any necessary third-party rights, licenses and/or consents, may cause the Services (including, without limitation, the Platform) to (in whole or in part) be unavailable, or function ineffectively or inappropriately. We will in no event be responsible for any downtime, losses, failures or liabilities that arise as a result of your failure to comply with the requirements set forth in this Section. You acknowledge that use of the Services (including, without limitation, the Platform) requires one or more compatible devices (messaging rates may apply), Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. High speed Internet access is recommended. You acknowledge and agree that the compliance with the requirements set forth in this Section, which may be changed from time to time, are your responsibility.
- Your Cooperation. You will cooperate with us in all respects, including provision of information, access and support as may be reasonably required for purposes of our performance under the Agreement. Without limiting the generality of the foregoing, you will ensure that: (i) your Authorized Users and/or information technology team responds to our requests for information, materials or cooperation promptly and without undue delay; and (ii) you provide us with reasonable access to appropriate personnel, network, and systems (including, without limitation, any third party vendors and/or systems), as reasonably required for purposes of our performance under the Agreement.
- User Credentials. You and each Authorized User may be issued User Credentials. You will ensure that your Authorized Users use strong User Credentials (i.e., in the case of a password, one that is long, uses a mix of letters (upper and lower case), numbers and symbols, has no ties to the Authorized User’s personal information, and no dictionary words) even if the Platform permits simple User Credentials. You have and will retain sole responsibility for the security and use of all User Credentials, including for any losses that you or any third party may suffer as a result of the authorized or unauthorized use of any User Credentials by any third party. We reserve the right to disable any User Credentials at any time in our discretion for any or no reason, including (without limitation) if, in our opinion, you or any of your Authorized Users has violated any provision of the Agreement.
- Customer Acknowledgement. You acknowledge and agree that you or an authorized representative of you has evaluated the features and functionality of the Services in a means satisfactory to you and accepts that the Services have been demonstrably shown to have all of the features and functionality that have been shown to you. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features, nor are dependent on any oral or written public comments made by us regarding future functionality or features.
- Third Party Services. You acknowledge and agree that: (i) one or more of the features or functionalities or services available on or via the Services (including, without limitation, the Platform) may be made available by third parties (“Third-Party Service Providers” and such functionalities or services, “Third- Party Services”); (ii) the Services (including, without limitation, the Platform) and/or certain features or functionalities rely on API integration for certain features and functions, but that API integration has its own inherent level of unpredictability and inconsistency that is out of our control, and that as such we will have no liability for downtime caused by API integration failures; (iii) Third-Party Service Providers may impose restrictions on use of the particular Third-Party Service, in addition to other terms and conditions, including without limitation, those set forth in any applicable terms and conditions agreed to by or otherwise made available to you (collectively, “Third-Party Requirements”); (iv) you are solely responsible for compliance with, and will ensure that you and all Authorized Users comply with, all Third-Party Requirements; and (v) we may at any time terminate and/or discontinue any Third-Party Services, including as a result of termination of our relationship with the applicable Third-Party Service Provider without providing you with any refund, credit, or other compensation, provided that we will endeavor to provide you with advance written notice of any such termination or discontinuation if reasonably practical.
To use such Third-Party Services, you may be required to obtain access to such Third-Party Service from the Third-Party Service Provider and may be required to grant us access to your account(s) with the Third- Party Service Provider. Any use by you and any exchange of data between you and the Third-Party Service Provider is solely between you and the applicable Third-Party Service Provider. We do not warrant Third Party Services. If you install or enable a Third-Party Service for use with the Services, you hereby grant us permission to allow the Third-Party Service Provider to access your data and content as required for the interoperation of that Third-Party Service with the Services. We are not responsible for any disclosure, modification, or deletion of any Customer Content resulting from access by or integration with a Third-party Service. Your use of Third-Party Services is at your own risk, and we are not responsible for any acts or omissions by Third-Party Service Providers. WE HEREBY DISCLAIM ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY THIRD PARTY SERVICE PROVIDERS.
Description and Limitations of the Platform
- The Platform is intended to assist you with evaluating construction plans’ compliance with applicable regulatory and/or industry codes or standards. However, all tools, content and other materials available via the Services (including, without limitation, the Platform), including any Outputs (as defined below) resulting from your use thereof, are for informational purposes only, and none of them are intended to, nor should you deem them to be, recommendations or advice. While we have safeguards in place, the Services (including, without limitation, the Platform and any Outputs) may occasionally generate incorrect, incomplete and/or misleading information. As a result, you should not take an action based in whole or in part on any of the tools, content or other materials (including any Output) made available to you by the Services (including the Platform) without validating the results through independent research, obtaining up-to-date information and considering your and/or your clients’ particular circumstances and other existing facts. We do not recommend, guarantee, or represent that the Services (including the Platform) or any information or content made available via the Services (including the Platform and any Outputs) will be accurate, complete and not misleading. Moreover, we do not warrant the performance or results that may be obtained by the use of any of the foregoing. Your use of the Services (including, without limitation, the Platform) and all tools, information, content and materials made available to you by any of the foregoing (including, without limitation, any Outputs) is at your sole and exclusive risk. We do not have any control over your use of the Services (including, without limitation, the Platform or any Outputs) and all information, materials and other content made available to you by the Services (including, without limitation, Platform).
- You acknowledge and agree that as between you and us: (i) you will be solely responsible for the administration of your services to your clients; (ii) the Services, including the Platform and any Outputs, do not and will not in any way provide or include technical or other recommendations or advice and that you must use your independent technical judgment in determining the appropriate course of action for purposes of providing your services to your clients; and (iii) you will administer the delivery of your services to your clients based on your own professional judgment, guidelines, policies and procedures.
- WE DO NOT MAKE ANY WARRANTY THAT THE SERVICES, INCLUDING PLATFORM, OR ANY RELATED SERVICES OR ANY CONTENT MADE AVAILABLE TO YOU AS THE RESULT OF ANY THEREOF (INCLUDING ANY OUTPUTS) WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS OR NEEDS, INCLUDING THOSE OF YOUR CLIENTS, ACHIEVE ANY PARTICULAR RESULT, INCLUDING ANY BUG FIX, TECHNICAL WORKAROUND OR ANY OTHER PROCESS OR RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. Please carefully review Section 8 and Section 9 below for important disclaimers and limitations on our liability to which you are agreeing to by using the Services.
- Our Services (and the Platform in particular, if applicable) does not and is not intended to replace the need for you to maintain regular data backups or redundant data archives. WE HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF ANY OF YOUR CUSTOMER CONTENT (INCLUDING ANY CONSTRUCTION PLANS OR RECORDS) INPUT INTO, MAINTAINED BY OR OTHERWISE AVAILABLE ON OR VIA THE SERVICES.
Customer Content Usage
- Data Usage. Notwithstanding anything to the contrary, and to the extent not prohibited by Law, we will have the right to collect and analyze Customer Content and other information relating to the provision, use and performance of various aspects of the Services (including, without limitation, the Platform) and Technology (including, without limitation, Customer Content, and data derived from any thereof), and will be free (during and after the term of the Agreement, including any subscription term) to: (i) use such information and data to improve and enhance the Services (including, without limitation, the Platform) (in whole or in part) and for other development, diagnostic and corrective purposes in connection with the Services (including, without limitation, the Platform), the Technology and/or our other product or service offerings; and (ii) use and disclose such information and data solely in aggregate or other de- identified form in connection with our business without disclosing the identity of any individuals (“Aggregated Data”). No rights or licenses are granted except as expressly set forth herein. You acknowledge and agree that the Services (including, without limitation, the Platform and third-party services that serve the features or components of our Platform) will use Customer Content (including documents) uploaded to the Platform and other relevant data for our business purposes, including to train our AI model and to otherwise improve our service offerings.
- Data Processing. We may transfer and process Customer Content in the United States or any other country in which we or our affiliates or subcontractors maintain facilities. You appoint us to perform any such transfer of Customer Content to any such country to provide the Services in compliance with the terms of this Agreement.
Intellectual Property and Propriety Rights
- We or our licensors will own and retain all right, title and interest in and to the following (collectively, "Our Property"): (i) the Services (including, without limitation, the Platform), the Technology, and all improvements, enhancements or modifications to any of the foregoing; (b) any work product, including any software, applications, inventions or other technology or intellectual property developed, authored and/or reduced to practice in connection with our making the Services (including, without limitation, the Platform) available to you, including as the result of any support provided to you ("Results"); (c) the “CodeComply” name, brand, marks and other similar intellectual property; (d) any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your Authorized Users or representatives relating to the subject matter of the Agreement (collectively, "Feedback"), as well as any improvements, enhancements or other modifications created, prepared, produced, authored, edited, amended, conceived or reduced to practice by us (whether alone or together with you or any other third party or parties) arising out of or relating to such Feedback; (e) any and all performance data, test or evaluation results, or other metrics derived from the Services (including, without limitation, the Platform), including Aggregated Data; and (f) all intellectual property rights related to any of the foregoing. We expressly reserve all other rights in and to the foregoing. During and after the term of the Agreement (including any subscription term), each party will cooperate with the other to do any and all things which are reasonably necessary or desirable to establish, maintain, protect and enforce a party’s exclusive ownership of the property identified in this Section.
- You (or your licensors, as applicable) will own all right, title and interest in and to your Customer Content, as well as in and to any output generated by the Platform and provided to you or your Authorized Users in response to your submission of Customer Content (“Outputs”). Subject to your compliance with the Agreement, we hereby assign to you all of the rights we may have in any Outputs. For the avoidance of doubt, you are solely and absolutely responsible for all Outputs, including for verifying the accuracy, completeness, or appropriateness of the same.
- Upon restriction, suspension or termination of your account, all Customer Content will be deleted from the Services. After deletion of Customer Content, we will have no further responsibility or liability to you or any third party with respect to Customer Content. Assuming there has been no material breach or violation of this Agreement by you, we may allow, in our sole discretion, your continued access to the Services in order to export your Customer Content.
- You will pay us all Subscription Fees specified on, and in accordance with, the Order Form upon receipt of invoice, unless otherwise stated on the Order Form. Payment of a Subscription Fee for the applicable subscription term is due upon commencement of the Services. In addition to any other remedies available to us, we shall be entitled to discontinue provision of the Services until all amounts due are paid in full. All payments to us are non-refundable and non-cancelable, and there are no refunds or credits for unused or partially used subscriptions, even if you cancel your subscription in the middle of the subscription term. Specifically, your loss of construction business or your failure to use the Services will not be a cause for any refund and you will reimburse us for our collection costs incurred in attempting to collect any late payments, including reasonable attorneys’ fees and costs.
- The Subscription Fees stated on the Order Form are exclusive of any federal, state, or other governmental taxes, duties, fees, excises, or tariffs (“Taxes”) now or hereafter imposed on the Services. You will be responsible for, and if necessary, shall reimburse, us for all such Taxes on any amounts payable by you hereunder, except for taxes imposed on our income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section, then we will add such Taxes to the amount invoiced to you
- We may increase our fees at any time and from time to time, provided that the Subscription Fees will be as set forth in the applicable Order Form for the Initial Term. Unless otherwise agreed to in writing by the parties, following the initial term, Subscription Fees will be at our then-current commercial rates, and your continued use of the Services will constitute your acceptance of such fees.
- We may from time to time make all or certain portions of the Platform available at no charge ("Freemium Subscriptions"). If you register for one or more Freemium Subscriptions, you acknowledge and agree that you may have limited access to the Platform and/or features thereof. See Section 13 for additional terms and conditions applicable to Freemium Subscriptions.
Term and Termination
- Term. This Agreement will remain in effect for the initial term specified on the Order Form (“Initial Term”), unless earlier terminated as provided herein. Upon the expiration of the Initial Term, this Agreement will automatically be renewed for the same period (each such period a “Renewal Term”) unless either party provides written notice of non-renewal to the other party at least 30 days’ prior to the expiration of the then- current Term in effect. The Initial Term and any Renewal Terms are collectively referred to as the “Term”
- Termination. You may terminate the Term at any time by following the instructions on your account setting page. If you cancel a paid subscription, you typically will be permitted to use your subscription until the end of your then- current subscription term. Your paid subscription will not be renewed after your then-current Term expires, but your payment method will be charged, and you will be required to pay, any cancellation or other fees associated with your early termination and disclosed to you at the time you signed up for the subscription plan.
We may terminate the Term: (i) by providing you with notice of our intention to not renew at least 30 days’ prior to the end of the then-current Term; (ii) immediately, by providing you with written notice, if you are in material breach of the Agreement that is not capable of cure (as determined by us in our sole discretion) or, if capable of cure, is not cured within fifteen (15) days of receipt of written notice of such breach; (iii) upon written notice, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; and (iv) as otherwise expressly set forth in the Agreement.
Upon expiration or termination of this Agreement or Services authorized in an Order Form, you will immediately discontinue all access and use of the Services. You acknowledge and agree that, if you discontinue use of the Services for convenience, you will not be entitled to a refund of any portion of the Subscription Fee that you already paid and you remain liable to pay us any remaining payments due
- Suspension of Access. We may, directly or indirectly and by any lawful means (including any disabling device), suspend or otherwise deny your or any of your Authorized User’s or representative’s access to or use of all or any part of the Services (including, without limitation, the Platform) without incurring any resulting obligation or liability, if: (i) you fail to pay any amount when due under the Agreement, and such failure continues for five (5) days or more after the relevant due date; (ii) we believe, in our sole and absolute discretion, that you or any of your Authorized Users or representatives: (x) have failed to comply with any term of the Agreement; (y) have accessed or used the Services (including, without limitation, the Platform) beyond the scope of the authorization granted or for a purpose not authorized or intended under the Agreement or in any manner that does not comply with any of our instructions or requirements; or (z) are, have been, or are likely to be involved in any fraudulent, misleading, unlawful or unethical activities, or in any activity that could reflect poorly on us or negatively impair our goodwill (in each case, in our sole and absolute discretion); (iii) the subscription term is terminated or expires; (iv) we deem it necessary or desirable in order to prevent, mitigate or address a material security issue; or (v) we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires us to do so. This paragraph does not limit any of our other rights or remedies whatsoever, including any rights or remedies at law, in equity or under the Agreement.
THE SERVICES, (INCLUDING, WITHOUT LIMITATION, THE PLATFORM, THE TECHNOLOGY AND ALL TOOLS, CONTENT AND OTHER MATERIALS AVAILABLE VIA THE SERVICES, INCLUDING ANY OUTPUT RESULTING FROM YOUR USE THEREOF) ARE PROVIDED ON AN “AS IS” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SAME. Without limiting the generality of the foregoing:
- WE DO NOT WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY CONTENT AVAILABLE ON, THROUGH OR AS A RESULT OF THE SERVICES (INCLUDING THE PLATFORM AND ANY OUTPUTS THEREFROM) AND HEREBY EXPRESSLY DISCLAIM ANY LIABILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT. ALL TOOLS, CONTENT AND OTHER MATERIALS AVAILABLE VIA THE SERVICES, INCLUDING THE PLATFORM AND ANY OUTPUT RESULTING FROM YOUR USE THEREOF, ARE FOR INFORMATIONAL PURPOSES ONLY, AND NONE OF THEM ARE INTENDED TO, NOR SHOULD YOU DEEM THEM TO BE, RECOMMENDATIONS OR ADVICE. WHILE WE HAVE SAFEGUARDS IN PLACE, THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE PLATFORM AND ANY OUTPUTS, MAY OCCASIONALLY GENERATE INCORRECT, INCOMPLETE AND/OR MISLEADING INFORMATION. WE DO NOT RECOMMEND, GUARANTEE, OR REPRESENT THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PLATFORM) OR ANY INFORMATION OR CONTENT MADE AVAILABLE BY THE SERVICES (INCLUDING THE PLATFORM AND ANY OUTPUTS THEREFROM) WILL BE ACCURATE, COMPLETE AND NOT MISLEADING. MOREOVER, WE DO NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED BY THE USE OF ANY OF THE FOREGOING. YOUR USE OF THE SERVICES, INCLUDING THE PLATFORM AND ALL TOOLS, INFORMATION, CONTENT AND MATERIALS MADE AVAILABLE TO YOU BY THE SERVICES (INCLUDING THE PLATFORM AND ANY OUTPUTS) IS AT YOUR SOLE AND EXCLUSIVE RISK.
- WE DO NOT MAKE ANY WARRANTY THAT THE SERVICES, INCLUDING PLATFORM, OR ANY RELATED SERVICES OR ANY CONTENT MADE AVAILABLE TO YOU AS THE RESULT OF ANY THEREOF (INCLUDING ANY OUTPUTS) WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS OR NEEDS, INCLUDING THOSE OF YOUR CLIENTS, ACHIEVE ANY PARTICULAR RESULT, INCLUDING ANY BUG FIX, TECHNICAL WORKAROUND OR ANY OTHER PROCESS OR RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
- You acknowledge that the Services may in whole or in part be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control. If you have an active subscription to the Platform, we will use commercially reasonable efforts to provide advance notice by e-mail of any scheduled service disruption to the Platform and to reinstate the Platform. HOWEVER, WE DO NOT WARRANT THAT ACCESS TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE PLATFORM, WILL BE UNINTERRUPTED OR ERROR FREE.
- ALL THIRD-PARTY SERVICES INCLUDED IN THE SERVICES (INCLUDING THE PLATFORM AND ANY RELATED SERVICES) ARE PROVIDED "AS IS" AND SUBJECT TO ANY APPLICABLE THIRD-PARTY SERVICE PROVIDER TERMS AND CONDITIONS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY SERVICE PROVIDER.
- You acknowledge and agree that information that you receive from our AI Services are generated electronically using artificial intelligence and are not generated by a human and therefore you acknowledge and agree that your use of the AI Services may produce inaccurate results or incorrect information in certain situations. The AI Services are meant to be a tool to assist you with evaluating construction plans’ compliance with applicable regulatory and/or industry codes or standards, but the Services (including the AI Services) do not constitute, and are not a substitute for, the expertise of trained professional humans. Before relying upon any information generated or received from the Services (including the AI Services), you should seek advice from or consult with a qualified professional human to evaluate the accuracy of any such information. You acknowledge that relying upon any information generated through the AI Services without first verifying the accuracy of such information with a qualified human may cause harm, including but not limited to legal, financial, or physical harm.
- Third-party content and applications are provided “as-is,” exclusive of any warranty. We disclaim all liability for any harm or damages caused by any third-party networking or hosting providers. You acknowledge that our Services are solely for the purpose of providing information. We take no responsibility or make any warranties or representations about the completeness, accuracy, or reliability of this information or our Services. Any action you take as a result of the information provided by us is solely at your own risk. We are not responsible for any losses or damages incurred as a result of using the functionality of our Services.
Limitations on our Liability
IN NO EVENT WILL WE OR ANY OF OUR LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS (INCLUDING LOSS OF CONSTRUCTION BUSINESS OR YOUR FAILURE TO USE THE SERVICES), REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE PLATFORM (IN WHOLE OR IN PART); (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA (INCLUDING CONSTRUCTION DATA), OR BREACH OF DATA OR SYSTEM SECURITY; OR (iv) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL OUR AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU TO US UNDER THE AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Neither we nor you may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to the Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. WE AND YOU ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
You will indemnify, defend and hold us harmless from and against any and all claims, losses, damages, judgments, liabilities costs, and expenses (including attorneys’ fees and the costs of enforcing this provision and of pursuing any insurance providers) arising from or relating to: (i) any of your Customer Content, including any use, disclosure or storage of the same by us or on our behalf in accordance with the Agreement; (ii) our compliance with any specifications or directions provided by you or your representatives or Authorized Users or on your or their respective behalf’s; (iii) your failure to comply with any applicable Laws, or your breach of any of your obligations, covenants, representations and warranties set forth in the Agreement; or (iv) your or any of your Authorized Users’ access to or use of the Services (including, without limitation, the Platform).
- If you have an active subscription to the Platform and all or any portion of the Platform is, or in our opinion is likely to be, claimed to infringe misappropriate, or otherwise violate any third-party intellectual property right, or if your use of the Platform is in whole or in part enjoined or threatened to be enjoined, then we may, at our option and sole cost and expense: (i) replace or modify the Platform (in whole or in part) so as to make the Platform (as replaced or modified) non-infringing, while providing substantially similar features and functionality, and in which case such replacements or modifications will constitute a part of the Platform for purposes of the Agreement; (ii) obtain for you a right to continue using the Platform as materially contemplated by the Agreement; or (iii) if neither of the foregoing is commercially practicable in our sole discretion, terminate the term of the Agreement, including any subscription term (or your rights to access and use the infringing component of the Services) and provide you with a refund of any prepaid, unused fees for the Services or the infringing component, as applicable.
- Additionally, if you have an active subscription to the Platform, then we will defend you against any third-party claims brought against you alleging that your or an Authorized User’s use of the Platform in accordance with the Agreement infringes or misappropriates such third party’s patents, copyrights, or trade secrets, and will indemnify you against all damages finally and actually paid as part of a final judgment or settlement thereof. The foregoing obligation does not apply to the extent the alleged infringement arises out of or relates to: (i) your Customer Content or Third-Party Services; (ii) modification of the Platform other than by us; (iii) access or use of the Platform in combination with any hardware, system, software, network, or other materials or service not provided by us; (iv) your failure to timely implement any modifications, upgrades, replacements, or Enhancements made available to you by us or on our behalf; or (v) any act, omission or other matter described in Section 10
- THIS SECTION 11 SETS FORTH YOUR SOLE REMEDY AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PLATFORM), OR ANY TECHNOLOGY OR RELATED SERVICES OR OTHER MATERIALS PROVIDED BY OR MADE AVAILABLE BY US UNDER THE AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY
- Confidential Information. “Confidential Information” means any and all confidential or proprietary information of the Disclosing Party (as defined below) or of a third party and held by the Disclosing Party on a confidential basis, including, without limitation, documents, reports, analyses, data, studies, drawings, samples, suppliers, customers, pricing, pricing techniques, copyright, trademark and patent applications, marketing and sales techniques and plans, projections, technology, methods, procedures, software (including all documentation and code), hardware and system designs, architectures and protocols, trade secrets, know- how, and observations, whether disclosed orally or in writing, whether or not marked as “confidential,” and whether disclosed or made available to the Receiving Party before, on or after the date of the Agreement. Our Confidential Information includes Our Property and the terms, but not the existence of, the Agreement. Your Confidential Information includes non-public data provided by you or your Authorized Users to us or via the Platform. “Disclosing Party” means the party disclosing or making available the Confidential Information. “Receiving Party” means the party receiving or accessing the Confidential Information.
- Exclusions from Confidential Information. The term “Confidential Information” does not include information that, as evidenced by the Receiving Party with written documentation: (i) is or becomes publicly available after disclosure to the Receiving Party without breach of any obligation owed to the Disclosing Party or any third party; (ii) was lawfully received by the Receiving Party from a third party without obligation of confidentiality owed to the Disclosing Party or any third party; (iii) was known to the Receiving Party prior to its receipt from the Disclosing Party without obligation of confidentiality owed to the Disclosing Party or any third party; or (iv) was independently developed by the Receiving Party without use or reference to Confidential Information and without breach of the Agreement.
- Notwithstanding anything to the contrary in the Agreement, you acknowledge that Freemium Subscriptions may be provided for evaluation or other related purposes and, therefore, may contain bugs or errors, and will be subject to additional terms (including those set forth below).
- We may discontinue Freemium Subscriptions (in whole or in part) at any time in our sole discretion and may never make them generally available.
- We may provide customer support in respect of Freemium Subscriptions in our commercially reasonable discretion. Without limiting the generality of the foregoing, we make no promises or guarantees to provide customer support or if provided, any particular level of customer support, with respect to any Freemium Subscriptions.
- Our entire liability to you, and your sole remedy in connection with any Freemium Subscription (including, without limitation, any defects or non-performance of any Freemium Subscription) is for you to terminate your use of the Freemium Subscription. WITHOUT LIMITING THE APPLICATION OF ANY OTHER LIMITATIONS OF LIABILITY APPLICABLE TO YOUR USE OF THE PLATFORM OR ANY RELATED SERVICES PROVIDED BY US HEREUNDER, IN NO EVENT WILL OUR AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH ANY FREEMIUM SUBSCRIPTION, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED $25.00. THE FOREGOING LIMITATION APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE
You acknowledge that we may be irreparably damaged if the Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of the Agreement by you, we will be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, or to a decree for specific performance of the provisions of the Agreement. You agree that (notwithstanding Section 15 below) we may bring any action or proceeding with regard to such injunction restraining such breach or threatened breach in any state or federal court located in Miami-Dade County, Florida. You consent to personal jurisdiction over you by such court and to the exclusive jurisdiction of such court, and waive any objection to the laying of venue of any such action or proceeding in such court.
Disputes: Arbitration Agreement, and Class Action Waiver
*Please read this section carefully. Except as the Agreement otherwise provides, you waive your rights to try any claim in court before a judge or jury and to bring or participate in any class, collective, or other representative action.
- Agreement to Binding Arbitration. Before initiating arbitration, you acknowledge and agree that you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us including, but not limited to, information or representations related to our products or services and upon which you rely. You may seek to resolve any customer concerns through our support services at firstname.lastname@example.org or send the written description by U.S. Mail to 5959 Waterford District Drive, Suite 200, Miami FL, 33126. You agree to negotiate with us in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 30 days after our receipt of your written dispute, you agree to the dispute resolution provisions below.
By agreeing to the Agreement, you agree that you are required to resolve any claim that you may have against us or the Services on an individual basis in arbitration, as set forth in this Section. You and we agree that any disputes between us (including any disputes between you and a third-party agent of us) will be resolved through binding and final arbitration and not in a court. This includes, but is not limited to: (i) any dispute, claims, or controversy arising out of or relating to any part of the Agreement, or the existence, breach, termination, enforcement, interpretation or validity thereof; or (ii) your access to or use of the Services, including the Platform or our other services or products at any time. Such dispute shall be submitted to the American Arbitration Association (“AAA”) for individual arbitration in Miami-Dade County, Florida and shall be before one arbitrator. The arbitration shall be administered by the AAA pursuant to its Consumer Arbitration Rules and Procedures, only as modified by this Arbitration Agreement.
You and we agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the terms of this Agreement are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
By agreeing to individual arbitration, you understand and agree that you are waiving your right to maintain other available resolution processes, such as a court action or administrative proceeding, to settle any disputes or claims. The rules in arbitration are different. There is no judge or jury. Although review is limited, an Arbitrator can award on an individual basis the same damages and relief as would be available in court, and must enforce the same limitations stated in this Agreement as a court would.
- No Class Action. You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. This means that you and we each agree to arbitrate in our individual capacities only, not as a representative of a class, a member of a class, or a Private Attorney General. Likewise, an Arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding
- Rules and Governing Law. The arbitration will be administered by the AAA in accordance with the Consumer Arbitration Rules then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at https://www.adr.org/sites/default/files/Consumer_Rules_Web_1.pdf. The rules of the arbitral forum will govern all aspects of the arbitration, except to the extent those rules conflict with the terms of this Agreement.
Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA") will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of Florida, without regard to its conflict of laws provisions.
- Arbitration Process. You can begin the arbitration by submitting a Demand for Arbitration, which is a statement containing basic information about the dispute: (a) the names, addresses and phone numbers of the parties involved (you and us, in most cases); (b) a description of the dispute; and (c) a short statement of the relief you are seeking. The AAA provides a Demand for Arbitration form on its website, or you may contact the AAA at 800-778-7879. Complete the Demand for Arbitration and make at least four (4) copies. Keep one copy for your records. Send one copy to us by certified mail at Notice of Dispute, Address: [ADDRESS].
Send the final two copies of the Demand for Arbitration to the AAA. Please be sure to include: (1) a copy of this arbitration provision (you may obtain a copy from this Agreement); and (2) the appropriate AAA filing fee. You may obtain the amount of the fee by consulting the AAA’s rules. Those rules may be obtained by visiting the Consumer section on the AAA’s website, or by calling the AAA at 800.778.7879.
Unless you and we agree otherwise in writing, in the event that any provision of this Section is found not to apply to you or to a particular claim or dispute as a result of a decision by the Arbitrator or a court order, any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Miami-Dade County, Florida. You and we will submit to the personal jurisdiction of the courts located within Miami-Dade County, Florida for the purpose of litigating all such claims or disputes.
- Arbitrator’s Decision. The Arbitrator will decide the substance of all claims exclusively in accordance with the laws of the State of Florida, including recognized principles of equity, and will honor all claims of privilege recognized by law. The Arbitrator will not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
Regardless of the manner in which the arbitration is conducted, the Arbitrator shall issue a reasoned written decision sufficient to explain the essential findings of fact and conclusions of law on which the award is based. Judgment on the award may be entered in any court having competent jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction. The Arbitrator’s decision shall be final and binding on all parties.
Judgment on any award rendered by the Arbitrator is final, binding and conclusive on you and us and your and our respective administrators, executors, legal representatives, successors and assigns.
With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law.
- Fees. Payment of all filing, administration and Arbitrator fees will be governed by the AAA’s applicable consumer rules. The parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless they are authorized by law or the Arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the Arbitrator.
- Waiver and Amendment. No delay or omission by us to exercise any right or power under the Agreement will impair any such right or power or be construed as a waiver thereof. A waiver by us in any one instance of any of the covenants, conditions or agreements to be performed by you will not be construed as a waiver with respect to any succeeding instance in which the same provision may apply. We update these Terms from time to time. If you have an active subscription to the Platform, then we will use commercially reasonable efforts to let you know via a pop-up alerting you of the change prior to or while you are accessing your Platform account, or by email, in our discretion, except (a) when we launch a new service or feature, or (b) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. If you do not agree to any modification or other update, then your sole remedy will be to terminate the Agreement (and your use of the Services as a result). Your continued use of the Services (including, without limitation the Platform) following any change to these Terms is and will be deemed to be acceptance of all changes.
- Assignment. Neither party may assign, or otherwise transfer this Agreement, in whole or in part, voluntarily, involuntarily, by operation of law, or otherwise without the other party’s prior written consent; except that: (a) we may assign, or otherwise transfer this Agreement without such consent in connection with any merger, consolidation, reorganization, or any sale of all or substantially all of our assets or any other transaction in which more than fifty percent (50%) of our voting securities are transferred (“Change in Control”).Any attempt to assign, or otherwise transfer this Agreement other than in accordance with this provision will be null and void.
- Compliance with Laws. You will comply with all applicable L a w s , including all applicable export and import laws and regulations in connection with your performance, access, and/or use of the Services under this Agreement. You will comply with all legal duties applicable to you. Specifically, you will provide relevant persons and/or participants with all information you are required by law to provide, and, if necessary, shall obtain the consent of these persons. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You will not permit your Authorized Users to access or use the Services in a U.S.- embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation. You acknowledge and agree that the Services (including, without limitation, the Platform) do not guaranty your compliance with applicable Laws, including, without limitation, Laws relating to privacy of consumer information, and that your compliance with applicable Laws is ultimately your sole and exclusive responsibility. Without limiting the generality of the foregoing, you acknowledge that we do not and will not provide any legal or technical advice, and that any feedback, content, output or materials provided by us or the Services (including, without limitation, the Platform) as part of or in connection with the Services (including, without limitation, the Platform) (including any support thereof) do not constitute legal or other professional advice, and that you are solely responsible for determining the legality, validity and enforceability of all of your Customer Content, your use of the Services (including, without limitation, the Platform), your services, and the accuracy, accessibility, safety and reliability of any language contained within all of your Customer Content and/or your services.
- Attorneys’ Fees. In the event of any claim, action, arbitration or judicial proceeding arising under this Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees and expenses incurred in resolving such claim, action, arbitration or judicial proceeding.
- Notices. All notices, demands, requests or other communications which may be or are required to be given, served, or sent by a party to the other party pursuant to the Agreement will be in writing and will be delivered electronically to the email addresses set forth below. Either party may change its email address for notice by notifying the other parties of such change in accordance with this Section. If to You: to the email address set forth on the Order Form. If to Us: to the email address set forth on the Order Form, marked to the Attention of “Legal Notice,” and in all cases, with copy (but which will not constitute notice) to email@example.com.
- Independent Contractors. The relationship of the parties is that of independent contractors and nothing contained in this Agreement will be construed to make either party an agent, partner, joint venturer, or representative of the other for any purpose. This Agreement is for the sole benefit of the Parties and their respective permitted successors and assigns, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy under or by reason of this Agreement.
- Force Majeure. Except for a party’s obligations to pay fees hereunder, each party will be excused from performance of its obligations for any period and the time of performance will be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under the Agreement, as a result of acts of God, any governmental authority, war, pandemic, epidemic, health crisis, government order or lockdown, civil disturbance, court order, labor dispute or any other cause beyond its reasonable control, including, in our case, Third Party Service malfunctions (such as interruption of Third Party Service services or functions) hurricanes, inclement weather, and failures or fluctuations in electrical power, heat, light, telecommunication equipment or lines or any other equipment or network outside of our reasonable control.
- Entire Agreement and Survival. If any provision of the Agreement is found by any court, arbiter, or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement, which will remain in full force and effect. The Agreement (including the Order Form) represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersede all other negotiations, understandings, and representations (if any) made by and between such parties, whether orally or in writing. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- Interpretation. The headings contained in the Agreement are for convenience of reference only, are not to be considered a part of the Agreement and will not limit or otherwise affect in any way its meaning or interpretation. For purposes of these Terms, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; and the word “or” is not exclusive.
- Counterparts. The Order Form may be executed in counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. Confirmation of execution by electronic transmission signature page or other electronic execution means will be binding, and each party irrevocably waives any objection that it has or may have in the future as to the validity of any such electronic execution.