REVISED, APRIL 2, 2019
By using the Platform and Services you agree to be bound by this Agreement. If you are using the Platform and Services on behalf of an organization, you are agreeing to this Agreement for that organization and representing that you have the capacity and authority to bind that organization to this Agreement. In that case, “you” and “your” will refer to that organization.
You may use the Platform and Services only in compliance with this Agreement. You may use the Platform and Services only if you have the power to form a contract with the Company and are not barred from doing so under any applicable constitutions, laws, ordinances, principles of common law, codes, regulations, statutes or treaties and all applicable orders, rulings, instructions, requirements, directives or requests of any courts, regulators or other governmental authorities (“Law”).
1. Definitions. Capitalized terms in this Agreement have the meanings assigned to them in Section 14 or elsewhere in these this Agreement, unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of such terms. In this Agreement, unless a clear contrary intention appears (a) ”Section” refers to sections of this Agreement; (b) ”including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term, and (c) any provision for Company’s consent or approval allows Company to grant or withhold its consent or approval in its sole and absolute discretion.
2. Services Provided by Company.
2.1 Services. Subject to the terms of this Agreement, Company may provide certain recipe, ingredient and inventory services to Customer through the Platform.
2.2 Updates. Company reserves the right to change or upgrade any equipment or software that Company uses to provide the Services without notice to Customer. Company may install security patches, updates, upgrades and service packs with respect to the Platform (“Updates”) as Company determine in its sole discretion, and Company reserves the right, but not the obligation, to roll back any Updates. Updates may change system behavior and functionality and as such may negatively affect the Services used by Customer. Company will not be responsible or liable for service disruption or changes in functionality or performance due to Updates. Company will not be responsible or liable for issues that may arise from incompatibilities between Customer’s systems or software and any Update or hardware or software change or configuration, regardless of whether discretionary or requested.
2.3 Access Credentials. Customer is responsible for safeguarding the username, password and other access credentials that Customer uses to access the Platform and Services (“Access Credentials”) and Customer agrees not to disclose Customer’s Access Credentials to any third party. Customer is responsible for any activity using Customer’s Access Credentials, whether or not Customer authorized that activity. Customer will immediately notify Company of any unauthorized use of Customer’s account and of any actual or potential disclosure of Customer’s Access Credentials. Customer acknowledges that if Customer wishes to protect Customer’s transmission of data or files to Company, it is Customer’s responsibility to use a secure encrypted connection to communicate with the Platform and Services. Company makes no representations or warranties as to the security of any such encrypted connection, however, and Customer agrees that Company will have no liability if it fails to protect Customer’s transmission.
3. Customer Obligations. Customer will use the Services for business purposes only. Customer’s receipt of Services hereunder is at all times conditioned on Customer:
(a) providing Company with all information reasonably necessary for Company to provide the Services;
(b) complying with the Specifications at all times and using only the Access Credentials provided by Company;
(c) otherwise performing Customer’s obligations under this Agreement;
(d) reviewing all transactions periodically, notifying Company promptly of suspected fraudulent or unauthorized activity under Customer’s Access Credentials, cooperating with Company to investigate, remediate and prosecute any such security breach and reimbursing Company for remediation costs incurred in connection with any such security breach;
(e) complying with all applicable Law in the use of the Platform and Services; and
(f) cooperating with Company on technical matters as necessary to cause the parties’ respective servers to interoperate successfully such that transaction data are accurately recorded and processed and securely transmitted and stored.
4. Suspension of Services. Company may in its sole discretion immediately suspend any Services and any right to use the Platform at any time in its discretion, including if:
(a) Company believes that Customer has committed a material breach of this Agreement;
(b) Company is obligated or believes itself obligated to suspend any Services to comply with an order, instruction, requirement, directive or request of any governmental body;
(c) Company believes, in its reasonable opinion, that continuing to supply the Services to Customer may cause damage or harm to Company’s relationship with any governmental body, business partner or other third party related to the Services;
(d) applicable Law or a regulatory action or lawsuit prohibits, impairs or makes impractical the provision of the Services;
(e) a third-party supplier on whose services the provision of Services is dependent suspends its provision of those services to Company;
(f) the Services are being used in a manner that Company determines or has been notified may otherwise create liability or may be fraudulent or illegal;
(g) Customer or any third party has accessed the Services in violation of Section 3, or there has otherwise been unauthorized use of Customer’s Access Credentials.
(h) Customer ceases to do business as an ongoing business concern, fails to meet its obligations as they come due or becomes subject to proceedings of bankruptcy, receivership, insolvency, liquidation or assignment for the benefit of creditors.
5. Payment Terms.
5.1 Fees. Some Services may require payment of a Fees. The Fees for use of these Services are set forth at www.parsleycooks.com. Company expressly reserves the right to change or modify its prices and fees at any time, and any changes or modifications will be effective immediately on posting without need for further notice to Customer.
5.2 Payment. Customer agrees to pay any and all Fees at the time Customer orders the Services. Except for Fees payable on a per-transaction basis, all Fees are due in advance of the time period during which Services are provided. All invoices must be paid within 30 days of the invoice date. Any invoice that is outstanding for more than 30 days may result in the suspension or termination of Services. This may result in loss of data. Access to the account will not be restored until payment has been received. Any Fees not paid as and when due will incur late fees equal to 1.5% per month or the highest rate permitted by applicable Law. Customer will pay all costs and expenses incurred by Company in collecting any unpaid Fees, including court costs and fees, attorneys’ fees and the commissions of collection agents.
5.3 Payment Methods. Company accepts various forms of payment, as set forth on the Platform from time to time (each, a “Payment Method”). Customer must provide and verify at least one Payment Method to use the Services. Customer authorizes Company to store, and contract with a third-party to store, Payment Method information for future use as provided in this Agreement. To the extent permitted by applicable Law, Company may use certain third-party vendors and service providers to process payments and manage Customer’s Payment Method information. By providing Payment Method information, Customer represents and warrants that (a) Customer is legally authorized to provide that information to Company, (b) Customer is legally authorized to perform payments using the Payment Method(s); and (c) that action does not violate the terms and conditions applicable to Customer’s use of those Payment Method(s) or applicable Law. When Customer authorizes a payment using a Payment Method, Customer represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method.
5.4 Auto-Renewal. Unless otherwise provided, Customer agrees that until and unless Customer terminates the Services, the approved Payment Method will be billed on an automatically recurring basis to prevent any disruption to Services, using the Payment Method information provided to Company.
5.5 Taxes. Listed Fees for the Services do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to Company’s invoice as a separate charge to be paid by Customer.
5.6 No Refunds; Invoices Final. All Fees are non-refundable, even if the Services are suspended, terminated, or transferred before the end of any term for which Customer has paid. All invoices for Fees will be deemed as accepted and final unless Customer provides Company with a specific written description of any disagreement within 60 days after notice of the applicable invoice.
5.7 Trial Subscriptions. For some Services, Company may offer a free trial subscription. If Customer accepts a free trial subscription, Company will begin to bill Customer for that Service when the free trial subscription expires, unless Customer cancels its subscription before that time. Customer is always responsible for any internet service provider, telephone, wireless and other connection fees that Customer may incur when using Services, even when Company offers a free trial subscription. Trial subscriptions are not transferrable.
5.8 Fees Charged By Third-Party Sites and Vendors. Company may provide links to other websites. Some of these websites may charge separate fees, which are not included in any Fees that Customer may pay to Company. Any separate charges or obligations that Customer incurs in its dealings with third parties are Customer’s responsibility. Customer is responsible for any internet service provider, telephone, wireless and other connection fees that Customer may incur when using Services.
5.9 Credit Reports and Evaluation of Credit. Customer authorizes Company to obtain business and personal credit bureau reports in the name of the Customer at any time. Customer agrees to submit to Company current financial information in the name of the Customer at any time on request. Such information will be used for the purposes of evaluating or re-evaluating Customer’s creditworthiness. Customer also authorizes Company to use such information and to share it with any Affiliate of Company in order to determine whether Customer is qualified for other products or services offered by any Affiliate of Company. Company may report its credit experience with Customer and Customer’s payment history to third parties. Customer agrees that Company may release information about Customer or Customer’s account to any Affiliate of Company.
6. Intellectual Property Rights; Data.
6.1 Platform. Company owns and will retain all right, title and interest in all Intellectual Property Rights embodied or fixed in, or otherwise pertaining to, the Platform. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a limited, non-exclusive, non-transferable license to use the Platform and the Specifications only during the Term and only to enable Company to provide Customer and its Users with the Services. Other than the foregoing grant of rights, Company does not grant, and Customer does not receive or possess, any right or interest in any of Company’s Intellectual Property Rights, or any other type of right or interest, whether an economic, property or moral rights interest in the Platform. Customer acknowledges that Company may from time to time upgrade or otherwise change the Platform or the Specifications in its sole discretion. Company will use commercially reasonable efforts to notify Customer of any such changes that may affect the Services or the way in which Customer connects to the Platform. Customer is responsible for satisfying itself that it can successfully interface with the Platform under the Specifications, and Customer understands that Company may change those Specifications from time to time and that Customer may not be aware when changes have been made or are about to be made. Customer is prohibited from copying or otherwise reproducing or attempting to reproduce the Platform. Customer agrees not to modify, disassemble, decompile, reverse engineer, create derivative works of the Platform.
6.2 Data. Subject to the terms and conditions of this Agreement, Customer hereby grants Company a limited, worldwide, non-exclusive, royalty-free license during the Term to use, copy, store and transform Customer Content and Customer Data, including modifying or editing, combining with other materials, and creating derivative works of the Customer Content and Customer Data with other Content and data, solely in order to provide use of the Platform and Services as provided under this Agreement and subject to its terms. As between Customer and Company, Company agrees that Customer owns all right, title and interest, including all Intellectual Property Rights, in and to the Customer Content and Customer Data, and any changes, modifications or corrections to them. For purposes of this Agreement (a) “Customer Data” means any data of Customer processed or stored using the Platform or Services, and (b) “Customer Content” means any Content provided to Company by or on behalf of Customer as part of the Services. Company also may aggregate Customer Data and Customer Content with that of other customers for the sole purpose of analyzing and improving Company’s services to all customers, so long as Company does not in the process disclose to any third parties Customer Data or Customer Content in a manner that is personally identifiable to Customer.
6.5 Reservation of Rights. Each party does not grant, and hereby expressly reserves onto itself, all rights not granted in this Agreement.
6.6 Injunctive Relief. Customer agrees that any breach by Customer of this Section 6 is likely to cause irreparable injury for which Company would have no adequate remedy at law. Therefore, in the event of such a breach or threatened breach, Company will be entitled to seek injunctive relief, without limiting any other rights or remedies that may be available to it and Customer agrees to waive any requirement for the securing or posting of any bond in connection with any Company efforts to seek injunctive relief in accordance with this Section 6.6.
6.7 Software, Utilities and Tools. Services may require or allow Customer to download Software from Company or its licensors onto Customer’s smartphone, tablet, computer or other device. Company grants to Customer a non-exclusive, limited license to use Software solely for the purpose stated by Company at the time the Software is made available to Customer. If an end user license agreement is provided with the Software, Customer’s use of the Software is subject to the terms of that license agreement. Customer may not sub-license, or charge others to use or access Software. Customer may not translate, reverse-engineer, reverse-compile or decompile, disassemble or make derivative works from Software. Customer may not modify Software or use it in any way not expressly authorized in writing by Company. Customer understands that Company’s introduction of various technologies may not be consistent across all platforms and that the performance of Software and related Services may vary depending on Customer’s computer and other equipment. From time to time, Company may provide Customer with updates or modifications to Software. Customer understand that certain updates and modifications may be required in order to continue use the Software and Services.
7. Contributing UGC to Services.
7.1 Customer Responsibility. Company does not pre-screen all
UGC and does not endorse or approve any UGC that Customer and other customers may contribute to Services. Customer is solely responsible for Customer’s UGC and may be held liable for UGC that Customer posts. Customer bears the entire risk of the completeness, accuracy and/or usefulness of UGC found on Services.
7.2 Intellectual Property Rights. Company respects the intellectual property rights of others. Customer must have the legal right to Upload UGC through the Services. Customer may not Upload any UGC on Services that infringes the Intellectual Property Rights or any other rights of a third party nor may you Upload UGC in violation of Law or this Agreement. You may Upload only UGC that you are permitted to Upload by the owner or by Law. Company may, without prior notice to you and in its discretion, remove UGC that may infringe the Intellectual Property Rights or other rights of a third party.
7.3 Treatment of UGC. Company reserves the right (but has no obligation except as required by Law) to remove, block, edit, move or disable UGC for any reason, including when Company determines that UGC violates these terms. The decision to remove UGC at any time is in Company’s discretion. To the maximum extent permitted by Law, Company does not assume any responsibility or liability for UGC or for removal of, UGC or any failure to or delay in removing, UGC or other content.
7.4 Take Down Procedure. If any person believes that person’s Intellectual Property Rights have been infringed by someone else on the Services, that person may contact Company by e-mailing the following information to firstname.lastname@example.org :
(a) a description of the Intellectual Property Rights and an explanation as to how they have been infringed;
(b) a description of where the infringing material is located;
(c) the complaining person’s address, phone number and email address;
(d) a statement by the complaining person, made under penalty of perjury, that (i) the complaining person has a good-faith belief that the disputed use of material in which that person owns Intellectual Property Rights is not authorized, and (ii) the information provided is accurate, correct, and that the complaining person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(e) a physical or electronic signature of the person authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.
7.5 UGC License Grant. If Customer uses the Services to transmit UGC to other customers, except as expressly communicated by Customer to the recipient in writing at the time of transmittal, then Customer grant those customers the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute the UGC transmitted on or through the relevant Services without further notice, attribution or compensation to Customer.
8. Rules of Conduct.
8.1 Rules. The Services may include discussion forums, bulletin boards, review services or other forums in which Customer or third parties may post reviews or other content, messages, materials or other items on the Services (“Interactive Areas”). If Company provides such Interactive Areas, Customer is solely responsible for Customer’s use of such Interactive Areas and uses them at Customer’s own risk. Customer Content submitted to any public area of the Services will be considered non-confidential. Customer agrees not to Upload any of the following:
(a) any message, data, information, text, music, sound, photos, graphics, code or other Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
(b) Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any Law;
(c) Content that may infringe any Intellectual Property Rights or any other right of any person;
(d) Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
(e) unsolicited promotions, political campaigning, advertising or solicitations;
(f) private information of any third person, including addresses, phone numbers, email addresses and credit card numbers, unless that third person has expressly consented to that use;
(g) viruses, corrupted data or other harmful, disruptive or destructive files;
(h) Content that is unrelated to the topic of the Interactive Area(s) in which the Content is posted;
(i) commercial or other messages to any third person if those messages are not solicited, authorized or welcomed by the third person; or
(j) Content that, in Company’s discretion, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Services, or which may expose Company or its Affiliates or its customers to any harm or liability of any type.
8.2 Company Has No Duty to Monitor. Unless otherwise specified, there is no requirement or expectation that Company will monitor or record any online activity on Services, including communications. However, Company reserves the right to access and/or record any online activity on Services and Customer gives Company Customer’s express consent to access and record Customer’s activities. Company has no liability for Customer’s or any third party’s violation of this Agreement, including this Section 8.
8.3 Reporting Abuse. If Customer encounters another customer who is violating this Section 8, Customer will promptly report this activity to Company using the “Help” or “Report Abuse” functions in the relevant Service, if available, or contact Company customer support at email@example.com.
9. Representations, Warranties and Covenants.
9.1 Authority. Customer represents, warrants and covenants to Company that it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights and licenses granted by it to Company pursuant to this Agreement.
9.2 Approval. Customer warrants to Company that it has and will have at all times during the Term all licenses, approvals, qualifications, permits or certificates required in respect of the delivery of all Customer Content, Customer Content and other information provided pursuant to this Agreement.
9.3 Compliance with Law. Customer represents, warrants and covenants to Company that in connection with all actions under this Agreement, it will comply with all applicable Law, including all Law related to privacy.
9.4 Conflicting Obligations. Customer represents, and warrants to Company that it has no outstanding agreement or obligation which is in conflict with any of the provisions of this Agreement, or which would preclude it from complying with the provisions hereof, and further agrees that during the Term it will not enter into any such conflicting agreement.
9.5 Cooperation. Customer will provide Company with access to, and use of, all information, data, documentation and other materials reasonably necessary for Company to fulfill its obligations under this Agreement.
9.6 Content Warranties. In respect of any reproduction, adaptation or copy of an artistic work, audiovisual work, motion picture, sound recording, musical work, other copyrightable content, file or other data (each, a “Work”), forming part of Customer Content received or delivered in connection with the provisions of the Services, Customer warrants to Company that Customer has the Intellectual Property Rights, permission or proper authority necessary to allow the Work to be used through the Platform in provision of the Services without infringing the Intellectual Property Rights or other rights of any third party; and, if applicable, Customer has paid or will pay any royalty, license fees and all other properly imposed fees associated with the Work to a third party having the relevant Intellectual Property Rights.
10. Indemnification. Customer will defend, indemnify, save, and hold Company and its Affiliates, officers, employees, agents, suppliers or licensors harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, costs of investigation, and the amount of any settlements, asserted against Company and them that may arise or result from (a) Customer’s and its Users’ use of the Services or the Platform, (b) Customer’s breach of any representation, warranty or covenant in this Agreement, (c) Customer’s negligence, willful misconduct or violation of applicable Law, (d) any Customer Content, or (e) any disclose of personally identifiable information or other confidential information in violation of third-party rights or applicable Law except if solely attributable to a willful violation of applicable Law by Company.
11. Limitations and Disclaimers.
11.1 Limitation of Liability. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. EXCEPT FOR CUSTOMER’S OBLIGATIONS UNDER SECTIONS 3(d), 5, 10, 13.3 AND 13.10, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE LOWER OF (a) $1,000, AND (b) THE AGGREGATE AMOUNTS PAID OR PAYABLE BY WAY OF FEES FOR THE 6-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
11.2 Disclaimer of Warranties. ASIDE FROM THE WARRANTIES THAT COMPANY EXPRESSLY SETS FORTH IN WRITING IN THIS AGREEMENT, IT PROVIDES THE PLATFORM AND SERVICES “AS-IS” AND “WITH ALL FAULTS.” EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM AND SERVICES AND CUSTOMER’S USE THEREOF. CUSTOMER WAIVES ANY AND ALL WARRANTIES THAT MAY BE IMPLIED BY LAW, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SERVICES OR PLATFORM, OR THAT USE OF THE SERVICES OR PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE SERVICES OR PLATFORM WILL BE CORRECTED, OR THAT THE SERVICES OR PLATFORM’S FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY DOES NOT PROVIDE ANY LEGAL ADVICE AND DOES NOT WARRANT THAT USE OF THE SERVICES WILL COMPLY OR ASSURE CUSTOMER’S COMPLIANCE WITH ANY CUSTOMER OBLIGATIONS UNDER APPLICABLE LAW. CUSTOMER UNDERSTANDS AND AGREES THAT IT IS CUSTOMER’S SOLE RESPONSIBILITY TO DETERMINE HOW TO COMPLY WITH APPLICABLE LAW AND THE BENEFITS, IF ANY, OF THE SERVICES IN DOING SO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER UNDERSTANDS AND AGREES THAT NUTRITIONAL INFORMATION PROVIDED THROUGH THE PLATFORM MAY NOT BE APPROPRIATE OR SUFFICIENT FOR CUSTOMER’S COMPLIANCE WITH LEGAL LABELLING OR NUTRITIONAL INFORMATION DISCLOSURE OBLIGATIONS. CUSTOMER IS RESPONSIBLE FOR AND MUST PROVIDE ALL HARDWARE, SOFTWARE, SERVICES AND OTHER COMPONENTS NECESSARY TO ACCESS AND USE THE SERVICES, OTHER THAN THE PLATFORM. COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES THAT CUSTOMER’S HARDWARE, SOFTWARE AND OTHER SERVICES AND SYSTEMS WILL BE COMPATIBLE WITH THE PLATFORM OR SERVICE. COMPANY WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO CUSTOMER’S COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA, OR OTHER HARM THAT RESULTS FROM CUSTOMER’S ACCESS TO OR USE OF THE SERVICES OR PLATFORM. Some states do not allow the types of disclaimers in this Section 11.2, so they may not apply to you.
11.3 Third-Party Services. Links from the Platform to external websites (including external sites that are framed by the Website) or inclusion of advertisements do not constitute an endorsement by Company of those sites or the content, products, advertising and other materials presented on those sites or of the products and services that are the subject of those advertisements, but are for Customer’s reference and convenience. Customer accesses such sites or the products and services that are the subject of those advertisements at Customer’s risk. It is Customer’s responsibility to evaluate the content and usefulness of the information obtained from other sites. Company does not control those sites, and is not responsible for their content. Company provision of links to third-party sites does not mean that Company endorses any of the material on those sites, or has any association with their operators. Customer further acknowledges that use of any site controlled, owned or operated by third parties is governed by the terms and conditions of use for those sites, and not by this Agreement. Company expressly disclaims any liability derived from the use and/or viewing of links that may appear on the Platform. Customer agrees to hold Company harmless from any liability that may result from the use of links that may appear on the Platform.
12. Term and Termination. The term of this Agreement (the “Term“) will begin on the Effective Date and will continue until it is terminated pursuant to its terms. Either party may terminate this Agreement at any time. Company may terminate this Agreement by notice to Customer. Customer may terminate this Agreement by terminating Customer’s account using the process provided on the Platform for terminating a customer account. The provisions of Sections 1, 2.2, 2.3, 3, 5 (as to any payments due with respect to the period before termination) and 6-14, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination or expiration of this Agreement, will survive and continue in full force and effect after any termination or expiration of this Agreement. Any license(s) granted to Customer under this Agreement will automatically terminate on termination or expiration of this Agreement.
13.1 Assignment. Customer will not assign, transfer or delegate its rights or obligations under this Agreement to any third party without Company’s prior written consent. For the purposes of this Agreement, any sale or transfer by Customer of all or substantially all of its stock or assets or by merger or otherwise by operation of law is considered an assignment, requiring Company’s express written consent. Company may freely assign this Agreement or transfer any of its interest herein, including to any Company Affiliate, to a purchaser of all or substantially all of Company’s assets, and to a successor in interest of Company as part of a corporate reorganization, consolidation or merger. This Agreement and each of the provisions hereof will inure to the benefit of and be binding on each party’s successors, administrators and permitted assigns.
13.2 Severability. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision will be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
13.4 Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement (with the exception of any obligation to make payments to the other party hereunder) to the extent such delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing.
13.5 No Waiver. The waiver, modification, or failure to insist by a party on any of the provisions of this Agreement will not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of such party’s right to performance in the future of any such provision.
13.6 Relationship of the Parties. The relationship of the parties under this Agreement is one of independent contractors, and no agency, partnership, employment, joint venture or similar relationship is created hereby. Except as specifically authorized, neither party will have any authority to assume or create obligations on the other party’s behalf, and neither party will take any action that has the effect of creating the appearance of its having such authority.
13.7 Notices. Any notice required or permitted under this Agreement will be given in writing by personal delivery, by USPS Priority Express Mail, by nationally recognized overnight delivery service (e.g. UPS), or e mail. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the e-mail address. The notice address and e-mail address for Customer will be the address and e-mail address on record with Company as modified by Customer through the Platform from time to time. The notice address for Company will be 2618 3rd st, Santa Monica, and the e-mail address for Company will be firstname.lastname@example.org , as reflected in this Agreement as modified form time to time, pursuant to its terms.
13.8 Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies on any person or entity other than the parties hereto.
13.9 Amendment. Company may revise this Agreement from time to time and the most current version will always be posted on the Website. If a revision, in our sole discretion, is material Company may, but have no obligation to, notify Customer, including by postings to relevant Company blogs, so please check those pages regularly. By continuing to access or use the Platform and Services after revisions become effective, Customer agrees to be bound by the revised terms. If Customer does not agree to the new terms, Customer must cease using the Platform and Services and terminate Customer’s account using the process provided on the Platform for terminating a customer account.
13.10 Governing Law; Arbitration. Any disputes between the parties arising out of or relating to the Agreement (“Disputes”) will be governed by California law regardless of Customer’s location and notwithstanding of any conflicts of law principles. Except for Disputes relating to Intellectual Property Rights, any Disputes will be resolved exclusively by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Los Angeles County, California, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party’s request, and with arbitration costs and reasonable documented attorneys’ costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction. If there is more than one Dispute between the parties, all such Disputes may be heard in a single arbitration under this Section 13.10. Except to the extent required by applicable Law that cannot be waived or modified by this Agreement, Disputes under this Agreement may not be consolidated into a single arbitration proceeding with disputes between the Company and other persons, even if those disputes are governed by an arbitration proceeding similar or identical to this Section 13.10 and even those other persons are similarly situated and their disputes are similar or identical in the nature to a Dispute under this Agreement.
14. Definitions. The following terms will be defined as set forth below for purposes of this Agreement:
“Access Credentials” means the secure method by which Company provides Customer, generally through Customer’s own computer systems, access to control the Platform.
“Affiliate” means, in respect of a party, any company or other business entity controlled by, controlling, or sharing common control. For the purposes of this definition, “control” will mean the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of 50% or more of the voting interest, by contract, or otherwise.
“Content” means software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to and/or from Services, as well as the design and appearance of our applications and websites. Content includes UGC.
“Fees” means the amount payable by Customer to Company for the Services.
“Intellectual Property Rights” means all copyrights fixed in any medium now known or hereafter discovered, including copyrights in computer programs, pictorial works, audiovisual works, literary works, musical works, sound recordings, motion pictures and the like; patents, trademarks, trade names, trade secrets, design rights, design models, database rights and topography rights, all rights to bring an action for passing off, rights of privacy or publicity, and any other similar form of intellectual rights in intangible property or proprietary rights, statutory or otherwise, whether registered or not, and whether applied for or not, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or that relate to intangible property, ideas or expression, as they may exist anywhere in the world.
“Specifications” means the documentation and specifications provided by Company to Customer from time to time (through the Website, the Software or otherwise) with respect to use and integration of the Service and Platform.
“Upload” means to upload to the Platform, transmit, distribute, store, create or otherwise publish through the Service.
“UGC” means Content contributed by customers to Services or created by customers through Services.