Last Modified: [5/12/2015]
This Agreement commences on the date that you accept it, in one or more of the following ways: (a) checking a box or clicking on a button (or something similar) when the Immediately Application installation process or access page asks you to confirm that you accept this Agreement; or (b) installing the Immediately Application on your mobile device and keeping it installed for one (1) business day or more. Acceptance in either of the foregoing manners (or other similar means) indicates that you agree to the terms and conditions of this Agreement. If you are accepting on behalf of a company, organization, or other entity, then (1) “you” includes you and that entity, and (2) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
“Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
“Documentation” means the manuals and online help we provide for use in connection with the Services, Immediately may update the Documentation from time to time.
“Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Services.
“Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.
“Services(s)” means the specific services provided by us.
“Immediately Application” means the mobile or online, web-based application through which certain Services may be accessed or made available.
“Immediately Technology” means our proprietary software and other technology provided via the Services, including any and all enhancements, modifications, updates, upgrades, and derivative works to the foregoing.
“Statement(s) of Work” or“SOW” means the form describing our professional services, the applicable fees, the billing period, and other related terms and conditions. Such SOWs will be incorporated into this Agreement by reference.
“User” means your employees, representatives, consultants, contractors, or agents who are authorized to use the Services and have been supplied user identifications and passwords by you (or by us at your request).
PROVISION OF SERVICES; ACCESS RIGHT. Subject to your payment of the applicable fees, during the term of this Agreement, we will provide you with access to the Services. The Services include the standard features and functionality applicable to the Services, and any new features that augment or enhance such Services, excluding any new modules that we market and sell or provide as a separate product. Subject to the terms and conditions of this Agreement, you have a non-exclusive, non-sublicenseable, nontransferable right to access and use the Services and display the Immediately Technology during the term of this Agreement, solely for your internal business purposes. You may have employees, agents, consultants and independent contractors access the Services solely in performing services on your behalf in accordance with the provisions of this Agreement, provided that you bind them to all applicable provisions of this Agreement and you remain responsible for their performance under this Agreement in all respects. No implied licenses are granted hereunder; we reserve all rights not expressly granted hereunder.
INDIVIDUAL FEATURES AND SERVICES. Our Services may be varied, updated, replaced, removed, supplemented or added to over time by us at any time in our sole discretion. We will notify you of a change to the Services in advance only if the change does not preserve, extend, or enhance the features or functionality of the Services. Nothing in this Section requires us to continue to provide any portion of the Services if it would result in a violation of the rights of any third party or any applicable law.
TECHNICAL SUPPORT; PROFESSIONAL SERVICES. We will provide such resources and utilize such employees and/or consultants as we deem necessary to perform any implementation, training, consultation or other professional services and/or any technical support services relating to the Services, each as described in an SOW between you and Immediately. The manner and methods we use to perform professional and/or technical support are subject to our sole discretion. You agree to provide us with any required materials (of yours) needed for us to perform the professional services, and you grant us a royalty-free, non-exclusive, worldwide license to use such materials for the purpose of enabling us to perform the professional services. You agree to cooperate with us in our efforts to provide the technical support. We will use commercially reasonable efforts to meet the schedules we commit to in writing, and you agree to cooperate in good faith to allow us to complete the professional services in a timely manner. If achievement of any particular milestone is dependent upon performance of tasks by you or by a third party outside of our control, the projected dates for accomplishing such milestones will be adjusted to reflect any changes in such tasks. For purposes of clarification and for the avoidance of doubt, we are not providing any Immediately Technology to you pursuant to this Section; Immediately Technology (and the associated Services) are being provided, if at all, pursuant to the terms of Section 2.2 and the use restrictions in Section 3.2.
THIRD PARTY COMPONENTS. Certain third party components provided in or with the Services (“Third Party Components”) are subject to various “open source” or commercial licenses. Your use of the Third Party Components is subject to and governed by the applicable Third Party Component license(s) and is not subject to the terms and conditions of this Agreement, except that this Section 2.4, the warranty exclusions and disclaimers in Section 9, and the limitation of liability provisions of Section 10 also govern your use of the Third Party Components.
FEEDBACK. If you provide us with any suggestions, comments or other feedback pertaining to the Services, Immediately Application, or Immediately Technology (collectively, “Feedback”), such Feedback is and will be given entirely voluntarily. We will be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback provided to it as we see fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
OWNERSHIP. We are and will remain the sole and exclusive owner of all proprietary rights, including all Intellectual Property Rights, in and to (a) the Services, Immediately Application, and Immediately Technology, including any modifications or improvements thereto; and (b) any inventions, works of authorship or information that is authored, conceived, reduced to practice, invented or otherwise developed in the course of performing any services hereunder. You acknowledge that our name, our logo, and the product names associated with the Services are our trademarks (or those of our suppliers or licensors), and no license to such marks is granted herein. No ownership of any of the foregoing or any intellectual property rights therein is transferred or granted to you except for the limited access rights expressly granted herein.
ACCESS AND USE OF THE SERVICES. You are responsible for the connection to the Immediately Application and Services, including the Internet connection. We are not responsible for any inability to meet our obligations under this Agreement to the extent that such inability results from or relates to your connection to the Immediately Application and Services. You may use the Services and Immediately Technology only in accordance with this Agreement and the Documentation.
USE RESTRICTIONS. You may not, and you will ensure that Users do not: (a) decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access the source code of the Services, Immediately Application, or Immediately Technology, except as permitted by applicable law; (b) copy, rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the Services, Immediately Application, or Immediately Technology; (c) upload any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (d) infringe the intellectual property rights of any third party; (e) interfere with or disrupt the Immediately Technology, systems we use to host the Immediately Application or Services, or other equipment or networks connected to the Immediately Application or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Immediately Application or the Services made known to you; (f) use the Services, Immediately Application, or Immediately Technology in the operation of a service bureau or time-sharing service; (g) circumvent the user authentication or security of the Services, Immediately Application, or Immediately Technology or any host, network, or account related thereto, attempt to gain unauthorized access to a network, computer, software application, or any part thereof, misrepresent the source, identity, or content of information transmitted via the Services, including by forging network packages or e-mail headers, or use or access the Services in a manner intended to avoid the payment of fees; (h) make any use of the Services, Immediately Application, or Immediately Technology that violates any applicable local, state, national, international or foreign law; (i) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the Services, Immediately Application, or Immediately Technology, (j) allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, you for access to the Services, Immediately Application, or Immediately Technology; or (k) upload other otherwise submit any Customer Data or any content that contains social security numbers or other state-issued ID numbers, bank account information, credit or debit card information, personal information collected from children under 13, or health or medical information. In addition, you may not: (1) use the Services, Immediately Application, or Immediately Technology in any manner that we reasonably believe is abusive or contrary to applicable law; (2) remove, obscure, or alter our copyright notices, trademarks, or other proprietary rights notices on any Services, Immediately Application, or Immediately Technology; or (3) during the term of this Agreement, assert or authorize, assist, or encourage any third party to assert, against us or any of our affiliates, any patent infringement or other intellectual property infringement or misappropriation claim regarding any component of the Services, Immediately Application, or Immediately Technology.
ACCOUNTS. You must create an account to access and use the Services. You agree to provide accurate and complete information when signing up for an account. You are solely responsible for all activities that take place on or through your account, including the acts and omissions of your Users. You will, and you will require Users to, take appropriate security precautions including ensuring appropriately complex passwords, keeping passwords confidential, and regularly changing passwords. You will, and you will require Users to, comply with our security guidelines and procedures made known to you through the Services or otherwise. If you learn of a third party having obtained knowledge of a password without authorization, you will inform us of such unauthorized access without undue delay and promptly change the password. Rights of any User to utilize any Services cannot be shared or used by more than one individual. In addition, a User’s access information and privileges may not be transferred from one individual to another unless the original User no longer requires and is no longer permitted access to the applicable Services, as a result of which that individual is no longer a User. We are not responsible for any unauthorized access to your account, including any unauthorized use of the Services, and you agree to notify us promptly of any unauthorized use of your account and cooperate with our investigation of the incident. You may use the Services and register for an account with us only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of this Agreement. You may terminate your account at any time as set forth in Section 7.
RIGHT TO MONITOR AND ENFORCE. Immediately may, but has no obligation to, monitor any content or traffic on the Services, for the purposes of ensuring that the Services are being used in accordance with these Terms. We may, without notice to you: Intercept, block, or remove any content or traffic that we believe violates these Terms, or applicable laws; and report to the appropriate authorities any conduct by you that we believe violates applicable laws, which may include disclosure of your relevant personal data, or usage history on the Services.
ACCOUNT SUSPENSION. We may suspend your account and access to the Services, Immediately Application, or Immediately Technology without liability if: (a) we have reason to believe that the Services, Immediately Application, or Immediately Technology have, are being, or will be used in violation of this Agreement; (b) you fail to make a payment to us when due; (c) we reasonably believe that your Services, Immediately Application, or Immediately Technology are being accessed or used by third parties without your authorization; (d) we are required to do so by law; or (e) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. If your account remains suspended for period of thirty (30) days or more, we may terminate your account without notice to you as set forth in Section 7. If your account is suspended for any reason, you remain responsible for all fees accrued through the date of suspension. In addition, if your account is suspended due to clause (ii), you remain responsible for all contracted fees, notwithstanding such suspension.
Mobile Software from iTunes. The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Immediately, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Immediately as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Immediately as provider of the software. You acknowledge that, in the event of any third-party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Immediately, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Immediately acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third-party beneficiary thereof.
CUSTOMER DATA DEFINED. You are permitted to submit, upload, or transmit files, code, content, or other data on or through the Services directly or indirectly through third-party services (“Customer Data”). You retain ownership and control of your Customer Data. Except as otherwise set forth in this Agreement, we will use and process Customer Data solely for purposes of providing the Services under this Agreement.
CUSTOMER DATA LICENSE GRANT. By submitting Customer Data on or through the Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, all rights and licenses to the Customer Data required for us and our subcontractors and service providers to provide the Services. You acknowledge and agree that we may collect, analyze, and use anonymized or aggregated Customer Data, or data derived from Customer Data, as well as data about your access and use of our Services, for the purposes of operating, analyzing, improving, and marketing our Services, provided that such information will not be made public or disclosed to third-parties (e.g., in marketing materials or in application development) unless it has been aggregated, anonymized, or otherwise de-identified to a degree that it would not reasonably identify any individual customer or end-user.
YOUR RESPONSIBILITIES FOR YOUR CUSTOMER DATA. In connection with your Customer Data, as of the date you accepted this Agreement and throughout the term of this Agreement, you represent, warrant and agree that:
we are entitled to rely on your authorization to use obtain your Customer Data from the third-party services from which you direct us to gather your Customer Data;
you have obtained the Customer Data lawfully, and the Customer Data does not and will not violate any applicable laws or a third party’s proprietary or intellectual property rights;
the Customer Data is free of all viruses, Trojan horses, and other elements which could interrupt or harm the systems or software used by us or our subcontractors to provide the Immediately Application and Services;
you are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to Customer Data that you share with us for the provision of Services under this Agreement;
we may exercise the rights to your Customer Data granted under this Agreement without liability or cost to any third party; and
the Customer Data complies with the terms of this Agreement.
NOTICE OF SECURITY INCIDENT. In the event that Customer Data is disclosed to or accessed by an unauthorized party, we will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident; and if such incident triggers any third party notice requirements under applicable laws, you agree that as the owner of the Customer Data, you will be responsible for the timing, content, cost and method of any such notice and compliance with such laws.
BACKUP OF CUSTOMER DATA. We will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up your Customer Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your Customer Data.
SERVICES USAGE DATA. For the sole purpose of providing and improving our Services, we may collect and use data relating to the usage of the Services, including without limitation monitoring and analyzing usage and traffic patterns of our websites and Services. This usage data is not Customer Data, and is owned exclusively by Immediately.
FEES AND PAYMENT TERMS. Applicable fees for the Services are set forth in our Payment Terms, and you will pay such fees when due as set forth on the Payment Terms. Unless otherwise stated, all fees must be paid in U.S. Dollars. To the extent that any fees are based on your use of the Services, such fees will be determined solely based on our calculations of your Services usage. Any refunds provided by us in our sole and absolute discretion will be applied as a credit only; you will not have any right to withhold or reduce fees under this Agreement or set off any amount against fees owed. You are responsible for all charges incurred under your account, including any fees incurred by anyone with access to your account. Late payments will bear interest at a rate of 1.5% per month, or the highest amount permitted by law, whichever is less, and we may suspend your account if you fail to make a payment when due.
TAXES. You are responsible for paying any governmental taxes imposed on your use of the Services, including, but not limited to, sales, use, or value-added taxes. To the extent we are obligated to collect such taxes, the applicable tax will be added to your billing account.
YOUR PRECAUTIONS. You will take reasonable security precautions including ensuring appropriately complex passwords, keeping your passwords confidential and regularly changing your passwords. You will be solely responsible for all activity which takes place on or through your account.
OUR SAFEGUARDS. We have implemented commercially reasonable and legally compliant technical, administrative, and organizational measures designed to mitigate against accidental loss and from unauthorized access, use, alteration or disclosure of Customer Data. However, you acknowledge and agree that we cannot guarantee that unauthorized third parties will not be able to defeat those measures. You acknowledge that it is not feasible for us to accommodate conflicting data security requirements from multiple customers; accordingly, failure to accommodate your specific data security requests or requirements will not be deemed a breach of this Agreement. For the avoidance of doubt, we do not warrant that your use of the Services is risk-free. We do not provide representations, warranties, or assurances against interception or access and, provided that we comply with the other provisions of this Section, we will not be responsible for any theft, illegal activity or other unauthorized acts resulting in loss of or damage to you or any User, or your or their computer, data or other property in connection with use of the Services.
TERM. This Agreement will commence on the day it is accepted by you, and will continue until terminated.
By Either Party . Either party may terminate this Agreement if the other party breaches any of the provisions of this Agreement, and does not cure such breach within thirty (30) days of receiving written notice of such breach, except that for a breach of Section 2.2 (“Use Restrictions”) or 7 (“Confidentiality”), there will be no cure period.
By Us . We may terminate your account immediately upon written notice if you breach Section 3.2, or if your account has been suspended for a period of thirty (30) days or more as set forth in Section 3.5. We may also suspend or terminate your account upon a determination by us that continued use of the Services may result in harm to the Services (including the Immediately Application, Immediately Technology, and/or systems used to provide the Services) or our other customers, or result in a violation of applicable law, regulation, legal obligation or legal rights of another. In such event, in addition to any other remedies available at law or in equity, we will have the right immediately, in our sole discretion, to remove any potentially offending Customer Data from the Services and/or deactivate your user name(s) and password(s), until such time as the issue is resolved or this Agreement is terminated. In addition, we may terminate this Agreement for convenience by providing you with ninety (90) days advance notice.
Effect of Termination . If this Agreement is terminated for any reason, then (i) subject to clause (iii) below, your access to the Services will terminate, and you will stop using the Services immediately, (ii) all contracted fees will be due and payable, (iii) provided that we have not terminated this Agreement pursuant to Section 7.2(a) or (b), we will allow you to export your Customer Data from the Services for a period of thirty (30) days (alternatively, we may provide the Customer Data to you in an industry-standard format), and thereafter we have the right but not the obligation to delete or destroy such Customer Data in our sole discretion; and (iv) you will destroy or return the Confidential Information, if requested by us, certify such destruction or return. Notwithstanding any termination hereof, the provisions of Sections 2.8, 3.2, 4, 5, 6 , 7.2(c), 8, 9, 10, 12, 13, 14, and 15 will survive any expiration or early termination of this Agreement for any reason.
You will use at least the same degree of care that you use for your own information of similar nature but no less than reasonable care, to protect the Confidential Information from misuse or unauthorized disclosure. You will use the Confidential Information only for purposes of performing under this Agreement, and not disclose the Confidential Information without our prior written consent.
NO WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, IMMEDIATELY APPLICATION, AND IMMEDIATELY TECHNOLOGY, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE AND OUR SUPPLIERS, LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, WITH REGARD TO THE SERVICES, IMMEDIATELY APPLICATION, AND IMMEDIATELY TECHNOLOGY. WE DO NOT REPRESENT OR WARRANT THAT ANY SERVICES OR DATA PROVIDED BY US WILL BE ACCURATE, COMPLETE, ERROR-FREE, OR BACKWARDS-COMPATIBLE WITH PRIOR VERSIONS, OR THAT SUCH SERVICES OR DATA WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS.
NO RESPONSIBILITY FOR DATA LOSS. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED HEREIN, WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE OR MAINTAIN ANY CUSTOMER DATA, OR ANY OTHER DATA OR INFORMATION. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND SECURING YOUR CUSTOMER DATA.
NO RESPONSIBILITY FOR ELECTRONIC COMMUNICATIONS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU UNDERSTAND THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS IS ESSENTIAL TO YOUR USE OF THE SERVICES. YOU CONSENT TO OUR INTERCEPTION AND STORAGE OF ELECTRONIC COMMUNICATIONS AND/OR CUSTOMER DATA, AND UNDERSTAND THAT SUCH INTERCEPTION AND STORAGE WILL INVOLVE TRANSMISSION OVER THE INTERNET AND OVER VARIOUS NETWORKS THAT MAY NOT BE OWNED, OPERATED, OR CONTROLLED BY US. YOU ACKNOWLEDGE THAT CHANGES TO CUSTOMER DATA MAY OCCUR (INCLUDING ENCRYPTION AND COMPRESSION) IN ORDER TO CONFORM AND ADAPT CUSTOMER DATA TO THE TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS AND/OR DEVICES. YOU ACKNOWLEDGE AND UNDERSTAND THAT, WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK FACILITIES, OR OTHER ELECTRONIC MEANS, ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES.
NO RESPONSIBILITY FOR CONTENT OF CUSTOMER DATA. YOU ACKNOWLEDGE AND AGREE THAT WE MAY, IN PERFORMING OUR OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIAL, AND OTHER INFORMATION FURNISHED BY YOU WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND THAT WE WILL BE ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION IN PERFORMING THE SERVICES. IN PERFORMING THE SERVICES, WE MAY BE MAKING RECOMMENDATIONS AND PROVIDING ADVICE, BUT ALL DECISIONS AS TO IMPLEMENTING SUCH ADVICE AND RECOMMENDATIONS WILL BE MADE BY AND WILL BE THE SOLE RESPONSIBILITY OF YOU; WE WILL NOT BE LIABLE TO YOU FOR ANY RESULT OBTAINED OR NOT OBTAINED AS A CONSEQUENCE OF YOUR IMPLEMENTATION OF SUCH ADVICE OR RECOMMENDATIONS.
LIMITATION ON INDIRECT LIABILITY. SUBJECT TO SECTION 9.3 (“EXCLUSIONS”), UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, WILL EITHER YOU OR WE (OR OUR AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE SERVICES, IMMEDIATELY TECHNOLOGY, IMMEDIATELY APPLICATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, , EVEN IF YOU OR WE (OR AN AUTHORIZED REPRESENTATIVE OF OURS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION ON DAMAGES. SUBJECT TO SECTION 9.3 (“EXCLUSIONS”), IN NO EVENT WILL YOUR OR OUR (OR OUR AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSORS’, OR SUPPLIERS’) TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES, IMMEDIATELY APPLICATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID OR PAYABLE BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM.
EXCLUSIONS. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTIONS 9.1 AND 9.2 ABOVE DO NOT APPLY TO A BREACH OF SECTION 1.5, 1.7, 2.2, 2.3, 3.3, 7, OR TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS. IN ADDITION, THE LIMITATIONS SET FORTH IN SECTION 9.2 WILL ALSO NOT APPLY TO DIRECT DAMAGES TO THE EXTENT ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD.
LIMITATIONS ARE A BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED OUR SERVICES, AND ENTERED INTO THIS AGREEMENT, IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US, WITHOUT WHICH THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE DIFFERENT.
The Services are controlled and operated from our facilities in the United States. We make no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. By using the Services, on behalf of yourself and all Users, you are consenting to have Customer Data transferred to and processed in the United States.
You agree to indemnify, defend and hold harmless us and our affiliates, contractors, employees, agents, and third-party partners, licensors and suppliers from and against all claims, liabilities, causes of action, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of third party claims, suits, actions or proceedings relating to: (i) use of or access to the Services and any related data (including Customer Data) by you or any of your agents, employees, contractors; by anyone using your unique username, password or other appropriate security code; or by end users of your products or services ; (ii) breach of any provision of this Agreement; (iii) infringement, violation or misappropriation of any third-party right, including without limitation any right of privacy, right of publicity or Intellectual Property Rights, by the Customer Data; (iv) violation of any law, rule or regulation of the United States or any other country by you or any of your agents, employees, contractors, or by end users of your products or services; or (v) any dispute between you and your Users. We will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same. We will notify you in a reasonably prompt manner of claims, suits, actions, or proceedings for which we are seeking the above indemnification, provided that failure to so notify will not relieve you of your obligations except to the extent your ability to defend the claim, suit, action or proceeding is prejudiced by the delay. You may use counsel of your choosing (subject to our written approval). Any settlement requiring us to admit liability or to pay any money will require our prior written consent; and we may join in the defense and participate in any settlement discussions with our own counsel at our own expense.
GOVERNING LAW. This Agreement is governed by the laws of the State of California without reference to any conflict-of-laws principles that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the laws of the State of California or any other state. If UCITA is adopted and enacted in the State of California or any other state and, as a result of such adoption and enactment or any subsequent amendment thereto, you and/or we are required to take any action to effectuate the result contemplated by this Section, including amending this Agreement, you and we each agree to take such action as may be reasonably required, including amending this Agreement accordingly.
JURISDICTION. You and we irrevocably consent to the personal jurisdiction of the state courts located in Santa Clara County, California and the federal courts in the Northern District of California for any suit or action arising from or related to this Agreement, and waive any right such party may have to object to the venue of such courts.
Since we respect artist and content owner rights, it is Immediately’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify Immediately’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Services;
Information reasonably sufficient to permit Immediately to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
SquareOne Mail, Inc. d/b/a Immediately
2 Mint Plaza #904
San Francisco, CA 94103
Telephone: (415) 890-5038
Fax: +1 415 868-4911
Email: [email protected]
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Immediately and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Immediately’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Immediately has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Immediately may also at its sole discretion limit access to the Services and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
NOTICES. Either party may provide the other with notices required hereunder by confirmed email, first class mail, or personal delivery at the other party’s primary place of business. Notice will be deemed given twenty-four (24) hours after email is sent or three (3) business days after the date of postal mailing.
WAIVER. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by the waiving party.
REMEDIES. Your and our respective rights and remedies hereunder are cumulative. You acknowledge that the Services and Immediately Technology contain our valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to us for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.
SEVERABILITY; INTERPRETATION. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions. Without limiting the generality of the foregoing, the limitation of liability provisions will remain in effect notwithstanding any unenforceability of any warranty or warranty disclaimer provision. Any list of examples following “including” or “e.g.,” is illustrative and not exhaustive, unless qualified by terms such as “only” or “solely.” All references (e.g., to sections, parties, terms, and attachments) are to the sections of, parties to, terms of, and attachments to this Agreement, unless expressly indicated otherwise. All captions are intended solely for your and our respective convenience, and none will affect the meaning of any provision. All references to “written,” “in writing,” or other words of similar import refer to a non-electronic, paper document only, except where electronic mail communication is expressly authorized.
ASSIGNMENT. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent (which may be withheld in our sole discretion), but may be assigned by us without restriction. Any permitted assignment of this Agreement will be binding upon and enforceable by and against your and our respective successors and assigns, provided that any unauthorized attempted assignment will be null and void and constitute a breach of this Agreement.
USE OF SUBCONTRACTORS. We will have sole authority in determining the method of operating and maintaining the Services, including the right to subcontract any or all of its responsibilities and obligations; provided, however, that we will remain responsible for our obligations hereunder.
U.S. GOVERNMENT RIGHTS. The Services are “commercial items,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227. 7202-4 (June 1995), all U.S. Government users acquire only those rights in the Services that are provided in this Agreement.
FORCE MAJEURE. We will not be liable to you or your Users for delays, failures, or inadequate performance that results from conditions outside of our reasonable control, including, without limitation, acts of God, natural disasters, systemic electrical, telecommunications, or other utility failures, earthquakes, threatened or actual acts of terrorism or war, riots, or governmental acts or orders.
INDEPENDENT CONTRACTORS; THIRD PARTY BENEFICIARIES. You and we are independent contractors, and nothing herein will be construed as creating a partnership, agency, or joint venture, and neither you nor we will have the ability to bind the other. There are no third-party beneficiaries to this Agreement.
PUBLICITY. If you are a company, you hereby grant to us the right to use your company’s name, trademarks, and logos solely for purposes of identifying and promoting your company as a client of ours during the term of this Agreement and thereafter. Further, we will have the right to issue a press release regarding the existence of the business relationship between you and us.
ENTIRE AGREEMENT. This Agreement, together with all incorporated documents and any additional agreements you may enter into with us in connection with the Services, constitutes the entire agreement between you and us relating to the subject matter herein, and it supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between you and us regarding its subject matter. In the event of conflict or inconsistency between provisions of the components of this Agreement, this Agreement will prevail over the terms of any additional agreements unless the terms of the other agreement expressly state that they will prevail over the terms of this Agreement. This Agreement can only be modified in a writing signed by you and us, collectively. Signatures sent by electronic means (facsimile or scanned and sent via e-mail) will be deemed original signatures. Any preprinted terms on a purchase order or similar document are deemed rejected.
CALIFORNIA RESIDENTS. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.