COMMERCE SYNC TERMS OF SERVICE
Effective Date: April 20, 2017
Please review these Terms of Service ("Terms") carefully, including the binding arbitration clause and class action waiver in section 12.7 below. Your acceptance of these Terms is required in order for you to access and use the Commerce Sync Solution (as defined below). By registering with us, by downloading or installing Commerce Sync software, or by using the Commerce Sync Solution in whole or in part, you are entering into a legally binding agreement with us. If you do not agree to these Terms, you cannot use the Commerce Sync Solution. We reserve the right at our discretion to propose modifications to these Terms periodically. We will notify you of such changes via an email sent to the email address we have on file for you or via other notification mechanisms. Your continued use of and access to the Commerce Sync Solution after notice of such modifications indicates your acceptance of and agreement to the modified Terms.
1.0 DEFINED TERMS
"Access Information": user name, password, and other log-in information for access to the Commerce Sync Solution.
"Commerce Sync Service": the online service provided by us and used in conjunction with the Commerce Sync Software, as such service may be updated or modified by us in our sole discretion on one or more occasions.
"Commerce Sync Software": software applications and tools, documentation, application programming interfaces and other materials, information and data we may make available to you, all as may be updated or modified by us in our sole discretion on one or more occasions.
"Commerce Sync Solution": Commerce Sync Service, Commerce Sync Software, Support Services, and the features, functionality, data, applications, services and Content that we may make available to you via your use of the Commerce Sync Software and/or Commerce Sync Service.
"Content": text, images, graphics, photos, video, audio, and any other content, information or data (including transaction data), created, derived from or accessible via use of the Commerce Sync Solution. The term "your Content" includes Content originating or derived from your use of the Commerce Sync Solution and/or Other Applications.
"Evaluation Trial": provision of the Commerce Sync Solution free of charge for a limited period and/or with limited functionality.
"Order": the online signup page or separate ordering form (as may be amended), digitally or physically accepted by you, setting forth the Evaluation Trial and/or subscriptions you have purchased for access to the Commerce Sync Solution, terms regarding Support Services, if any, and other associated terms.
"Other Applications": online or offline software, products, services, functionality, hardware, networks and Content not developed or provided by us, including any of the foregoing that is owned or licensed by you or other party, or that is processed, made available, or enabled for use and display, via the Commerce Sync Solution. The term Other Applications includes without limitation Clover, Stripe, Square, Quickbooks, and Xero.
"Support Services": services we may agree to perform to enable the training, setup, integration, maintenance and/or support of the Commerce Sync Solution, which may include support, consulting, professional services, and updates of the Commerce Sync Software, if any.
"We", "us", "our" or "Software Aspects": Software Aspects, Inc., organized under the laws of Delaware, United States.
"You" or "your": the individual using the Commerce Sync Solution, or clicking "accept" or "agree" or otherwise demonstrating acceptance of the Terms, and thereby becoming bound by these Terms, and the company or other legal entity represented by such individual, and all affiliates thereto.
2.0 ACCESS TO THE COMMERCE SYNC SOLUTION
2.1 Availability. Subject to your compliance with these Terms, including payment obligations, we will make available a subscription to the Commerce Sync Solution in accordance with the applicable Order(s). You acknowledge that your decision to use the Commerce Sync Solution is not reliant or dependent on the availability of any current or future functionality or features, or on any oral or written public or private comments or representations made by us. You may not use the Commerce Sync Solution if you are barred from doing so under the laws of the United States or other countries including the country in which you are resident or from which you use the Commerce Sync Solution. If you are using the Commerce Sync Solution on behalf of a company, you warrant that you have full power and authority to bind such company to these terms. The Commerce Sync Service is not intended for and should not be used by anyone under the age of eighteen.
2.2 Evaluation Trial. Any Content, adaptations, customizations or other materials generated during the Evaluation Trial will be permanently lost at the end of the Evaluation Trial unless you maintain a subscription to the applicable Commerce Sync Solution. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, THE EVALUATION TRIAL IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. You must cancel the Evaluation Trial by the end of the stated number of days in the Evaluation Trial offer to avoid incurring charges, unless we notify you otherwise. If you do not cancel at the end of the Evaluation Trial period, we may charge you for the subscription.
2.3 Consent to Emails. You agree and consent to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Commerce Sync Solution, including notifications related to Support Services, administrative notices and service announcements or changes.
2.4 Reservation of Rights. We retain all right, title and interest in and to the Commerce Sync Solution and our Content, and all associated intellectual property rights. We grant no licensed rights to our patents. The user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays of or generated by the Commerce Sync Solution are our copyrightable content, our trade dress and our trademarks and servicemarks. You will not use, reproduce, distribute, or deploy the Commerce Sync Solution, except for your own personal use or your own business operations, and solely in accordance with these Terms.
2.5 Your Content. You retain all right, title and interest in and to your Content and all associated intellectual property rights.
3.0 USE OF THE COMMERCE SYNC SOLUTION
3.1 Necessary Systems. Access to and ability to effectively use the Commerce Sync Solution is conditioned on your procurement of all necessary system, hardware, software, operating environment, Other Applications, connectivity, and network access. You acknowledge that use of the Commerce Sync Solution requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Other Applications.
3.2 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to the Commerce Sync Solution for our business purposes, including for product licensing, support and development, without any obligation or payment to you.
3.3 Information. You hereby consent to our collection and use of anonymized data (including meta-data, analytical, diagnostic and technical data, and usage statistics) concerning or arising from your use of the Commerce Sync Solution in order to provide the functionality of and improve the Commerce Sync Solution, for product development and marketing purposes, to protect against spam and malware, and for verifying Terms compliance.
3.4 Unauthorized Use. You will not use the Commerce Sync Solution or participate in any activities via the Commerce Sync Solution in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. Your use of the Commerce Sync Solution must be in full compliance with applicable law. You are solely responsible for the accuracy, quality and legality of the Other Applications. You will not use, or enable or permit the use of the Commerce Sync Solution to store or transmit infringing, libelous, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You will not use or access the Commerce Sync Solution: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.5 Notifications to You. For purposes of service messages and notices about the Commerce Sync Solution to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services.
3.6 Notifications to Us. If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so. To be effective, notices to us must be sent to email@example.com.
4.0 SOFTWARE LICENSE
4.1 License Grant. Subject to your compliance with the obligations of these Terms, we hereby grant to you a non-sublicensable, non-transferable, and non-exclusive license to install and use the Commerce Sync Software on any supported computing device owned by you or in your exclusive possession, for your internal or personal use in support of your business operations.
4.2 Updates. The Commerce Sync Software may update automatically. Updates may be required for your continued use of the Commerce Sync Solution. You agree to accept such updates subject to these Terms unless other terms accompany the updates. If so, those other terms will apply. We are not obligated to make any updates available and do not guarantee that we will support the version of the Commerce Sync Software that you are currently using.
4.3 Unauthorized Use. Except as set forth above, you will not (a) copy the Commerce Sync Software except as required to load on to the device described in section 4.1 above; (b) distribute to or share use of the Commerce Sync Software with any third party; (c) modify, or create derivative works or improvements of, the Commerce Sync Software; or (d) sublicense, rent, lease, or host the Commerce Sync Software. All rights not expressly granted in this section are reserved to us. You will have no right or license to the Commerce Sync Software other than the rights set forth in section 4.1.
4.4 Ownership. We and our licensors retain all right, title and interest in the Commerce Sync Software and associated intellectual property rights, and all copies of the Commerce Sync Software. The structure, sequence, organization and code of the Commerce Sync Software constitute our and our licensors' valuable trade secrets and copyrighted confidential information. You will preserve and not suppress our proprietary notices, markings, and branding associated with or displayed via the use of the Commerce Sync Software.
4.5 Reverse Engineering. You will not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code, interfaces or other information from the Commerce Sync Software, or work around technical protections or limitations associated with the Commerce Sync Software, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the Commerce Sync Software; (c) such activity is confined to those parts of the Commerce Sync Software which are necessary to achieve interoperability; and (d) we have not made such information available to you under reasonable terms and conditions. Any information supplied to or obtained by you under this section as a result of reverse engineering may only be used by you for the purpose described in this section, and will not be disclosed to any third party or used to create any software that is substantially similar to the Commerce Sync Software.
4.6 Open Source. Certain components or libraries included in or bundled with the Commerce Sync Software may be covered by open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this section, solely with respect to those libraries or components that are licensed under such open source licenses.
4.7 Our Marks. You agree that any use of our marks, branding and logos ("Marks"), whether permitted or otherwise, will inure to the sole beneﬁt of Commerce Sync. You will not directly or indirectly: (a) ﬁle or prepare any application for registration of any Marks; (b) assert any right, title, license to, or interest in the Marks; or (c) adopt, use, ﬁle for registration, or register, in whole or in part, any trademark, service mark, trade name, logo, or domain name which may be confusingly similar to or an infringement of the Marks or any of our domain names.
5.0 ACCESS INFORMATION & CONTENT
5.1 Access Information. You are wholly responsible for maintaining the confidentiality of Access Information and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via email sent to firstname.lastname@example.org. We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of Content), from failure to comply with this section or from unauthorized use of Access Information.
5.2 Responsibility for Content. Your Content is your sole responsibility and the responsibility of the user from which such Content originated. We will have no responsibility or liability for the deletion or failure to store any Content or user data. We reserve the right to mark as "inactive" and archive accounts that are inactive for an extended period of time. It is your sole responsibility to back up Your Content and end user data. We may preserve and disclose any Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of us, users and/or the public. We may terminate Commerce Sync Solution access, and disable Commerce Sync Software, in response to a violation or suspected violation of these Terms.
5.3 Use of Content. You will bear all risks associated with the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. We may refuse or delete any Content, including Content of which we become aware that fails to fulfill the purpose of the Commerce Sync Solution, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. We will have no obligation or liability to maintain, store, or license Content, protect and maintain Content owners' intellectual property rights, or to enforce these Terms. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with these Terms, or for any act, omission, or conduct of any Commerce Sync Solution user.
5.4 Account Data. While we will endeavor to back up data, we have no responsibility or liability for the deletion or failure to store any Content. You acknowledge and agree that we are under no obligation to compile and return to you your Content, including if you elect to deactivate your account, except as we may otherwise agree in writing.
5.5 License to Content. You hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use your Content solely for the purposes of providing the Commerce Sync Solution to you.
6.0 OTHER APPLICATIONS
6.1 Responsibility. You are solely responsible for the Other Applications. Under no circumstances will we be liable in any way for Other Applications, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any loss or damage of any kind incurred as a result of the use of the Other Applications. You hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make the Other Applications available for interoperation with the corresponding features of the Commerce Sync Solution and on reasonable terms or otherwise, we may cease providing such features of the Commerce Sync Solution, without entitling you to any refund, credit or other compensation.
6.2 Use of Your Content. We will not be responsible for any disclosure, modification or deletion of your Content resulting from (a) any access or use of such Content by Other Applications or (b) enabling Other Applications to interoperate with the Commerce Sync Solution.
6.3 Other Applications Terms. You may be subject to additional terms and conditions that may apply when you use Other Applications, or affiliate or third party content or services.
7.0 SUPPORT SERVICES
Subject to your compliance with these Terms, we may, in our sole discretion and without obligation, provide (or not provide) the following Support Services:
• We may use commercially reasonable efforts to provide email help desk, query and incident support, in support of your use of the Commerce Sync Solution.
• We may implement for your benefit all upgrades, enhancements, ports, bug fixes, and new releases to the Commerce Sync Solution when and if, in our sole discretion, developed by us.
8.1 Subscriptions. You will pay to us the fees listed, on the dates specified, in the Order (provided that payment to us is not otherwise made via the Other Applications). Current pricing information can be found at commercesync.com or you may contact email@example.com. Charges are imposed monthly at the beginning of the first month commencing after the Evaluation Trial. Unless otherwise specified in the Order, subscription fees are based on either monthly or annual periods that begin on the subscription start date and each monthly or if applicable annual anniversary thereafter. By providing us with a billing account, you represent and warrant that you: (a) are authorized to use the billing account that you provided and that any payment information you provide is true and accurate; and (b) authorize us to charge you using your billing account. We may bill you in advance, at the time of purchase, shortly after purchase, or on a recurring basis for subscriptions. We may bill you at the same time for more than one of your prior billing periods for amounts that have not previously been processed. You will not develop multiple Other Applications to simulate or act as a single Other Application or otherwise access the Commerce Sync Solution in a manner intended to avoid incurring fees. The terms of this section will not apply to users paying us via Other Applications.
8.2 Orders. All payments are non-refundable and are exclusive of bank service fees or currency exchange settlements. Payments will be made via the method designated by us. In the event you are delinquent in the payment of any invoice, we may at our option suspend access to the Commerce Sync Solution until such payments are made in full. Payments to us will be made without deduction, counterclaim or set-off of any kind.
8.3 Billing Errors. If we make an error on a charge to your billing account, you must contact us with the details within 120 days from when the error first appears on your billing statement. If you do not inform us of the issue within that time, you release us from all liability and claims of loss resulting from the error and we will not be required to correct the error or provide a refund.
8.4 Response to Process. If we are required to respond to a subpoena or other formal request from a third party or a governmental agency for records or other information relating to the Commerce Sync Solution or services we have performed or solutions we have provided for you or on your behalf, or to testify by deposition or otherwise, you will reimburse our time and expenses incurred in accordance with our then-current time and expense rates.
8.5 Taxes. You will bear and be responsible for the payment of all taxes, including all sales, use, value-added, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with these Terms or provision of the Commerce Sync Solution (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible under this section, the appropriate amount will be invoiced to and paid by you.
9.0 COMMERCE SYNC SOLUTION INTEGRITY
9.1 Prohibited Acts. You are prohibited from breaching or attempting to breach any security features of the Commerce Sync Solution, including, without limitation: (a) accessing content, data, information or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Commerce Sync Solution, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with use of the Commerce Sync Solution by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; (d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity; (e) forging any TCP/IP packet header or any part of the header information; (f) accessing or tampering with non-public areas of the Commerce Sync Service, our computer systems, or the technical delivery systems of us or our providers; (g) publish, post, upload or otherwise transmit any data, material, information or content that contains any viruses, trojan horses, worms, time bombs, corrupted files or programming routines or mechanisms that are intended to damage, interfere with, monitor, intercept or expropriate any systems, data, information or property; (h) accessing or attempting to access the Commerce Sync Solution by any means (automated or otherwise) other than through the currently available, published or enabled interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; or (i) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing the Commerce Sync Solution.
9.2 Illicit Access. You will not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Commerce Sync Solution, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium the Commerce Sync Solution, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of the Commerce Sync Solution. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the Commerce Sync Solution.
10.0 DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY & INDEMNITY
10.1 Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, we provide the Commerce Sync Solution on an as-is, as-available basis with all faults, and WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE COMMERCE SYNC SOLUTION, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the Commerce Sync Solution will meet your requirements, goals or needs, (b) Commerce Sync Solution access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the Commerce Sync Solution will be corrected. We have no responsibility or liability for the deletion of or failure to store your Content or to ensure that your Content is accurate or complete. It is your sole responsibility to back up and maintain the accuracy and completeness of your Content. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the Commerce Sync Solution.
10.3 Indemnification. You hereby agree to fully indemnify, defend and hold harmless us, our affiliates, and officers, directors, employees and agents of us and our affiliates, from and against any and all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including our reasonable in-house and external lawyers fees and costs) directly or indirectly caused by or incurred by reason of a third party allegation, lawsuit, claim or proceeding, arising out of or related to (a) Other Applications; (b) breach of these Terms; (c) infringement of intellectual property rights; or (d) your business activities. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You will not settle or compromise any such claims without our prior written consent.
10.4 General Release. You further agree that these Terms waive and release any claims that would otherwise be preserved by operation of section 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." You understand that you are releasing us from all claims, whether known or unknown to you, and whether or not you suspect that those claims may exist at this time.
11.1 Term. Access to the Commerce Sync Solution commences upon our acceptance of or as applicable the date set forth in the Order and will continue in effect as specified in the Order. These Terms will remain in effect for as long as any Evaluation Trials or subscriptions are in effect. If automatic renewals are allowed in your jurisdiction, we will inform you by email before automatically renewing your subscription, unless your access to the Commerce Sync Solution is via Other Applications. Once we have informed you that your subscription will be automatically renewed, we may charge you the then current price for the renewal term. We will also provide you with instructions on how you may cancel the subscription. You must cancel the subscription before the renewal date to avoid being billed for the renewal. The terms of this section will not apply to users paying us via Other Applications.
11.2 Termination. In addition to sections 12.1 and 12.2, a subscription will terminate immediately upon your breach of these Terms. We may additionally terminate a subscription in the event your manner of using the Commerce Sync Solution exceeds normal and reasonable usage, including via unauthorized automated (non-human) initiated requests, or otherwise, and such excessive or detrimental use has not been corrected by you within one business day of our written notice to you. We may on written notice terminate rights granted under these Terms in the event the Commerce Sync Solution in whole or in part is in our reasonable judgment subject to the intellectual property rights of any other person or entity. We may additionally terminate a subscription upon written notice to you if you (a) become the subject of a legal proceeding under a law relating to insolvency or bankruptcy; or (b) or your property becomes under the control of a custodian or equivalent under applicable law, or your property is assigned for the benefit of creditors; or (c) generally fail to pay your debts as they become due or acknowledge in writing that you are unable to do so.
11.3 Effect. The rights of either party under this section 11 are in addition to any other rights and remedies permitted by law or under these Terms. Breach of these Terms may result in pursuit of all available remedies for intellectual property rights (including intellectual property rights infringement), the availability of which you hereby acknowledge. Upon termination of rights or access for any reason, all licensed rights granted under these Terms, access to the Commerce Sync Solution, and all Support Services will terminate, and you will immediately cease all use and distribution, and destroy all copies, of the Commerce Sync Software.
12.0 GENERAL PROVISIONS
12.1 Service Discontinuance/Modification. We may from time to time modify or discontinue access to, temporarily or permanently, any part, feature, or functionality of the Commerce Sync Solution. We will not be liable for any such modification, suspension or discontinuance, even if certain features or functions, your settings, and/or any Content you have contributed or have come to rely on, are permanently lost.
12.2 Account Termination. We may terminate your account or access for cause, including without limitation for: (a) violation of these Terms; (b) abuse of Commerce Sync resources or any attempt to gain unauthorized entry to the Commerce Sync Solution; (c) use of the Commerce Sync Solution in a manner inconsistent with its purpose; (d) any Commerce Sync user's request for such termination; or (e) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the Commerce Sync Solution for our own business reasons, including if we elect to cease being in the business of providing it or if the owners of Other Applications make continued operation commercially impracticable or unreasonable. After account termination, you will not attempt to register a new account without our permission.
12.3 Trademarks; Media. You are granted no right, title or license to any third party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers, including Commerce SyncTM. You hereby authorize us to disclose in our websites, marketing collateral, and corporate presentations that you have selected the Commerce Sync Solution.
12.4 US DMCA. If you believe that your work has been copied and is accessible via the Commerce Sync Solution in a way that constitutes copyright infringement in the United States, you may notify us by providing the following in writing:
· identification of the copyrighted work that you claim has been infringed;
· identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
· your name, address, telephone number, and email address;
· a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
· a statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
The above writing must be electronically or physically signed by you as the owner of the content claimed to be infringed or the owner's authorized agent. If we receive such a claim, we may refuse or delete the applicable content, or terminate the applicable user's account in accordance with these Terms. Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 is available at:
Copyright Infringement Agent
c/o Software Aspects, Inc.
Sean Hogle PC
1320 San Anselmo Ave
San Anselmo, CA 94960
We may remove content alleged or in our judgment to be infringing or otherwise illegal, without prior notice and at our sole discretion. In appropriate circumstances, we may also terminate a user's account if the user is determined to be a repeat infringer.
If you believe that a notice of infringement has been improperly submitted against you, you may submit a counter-notice, electronically or physically signed by you, and containing the following:
· identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
· your name, address, and telephone number;
· a statement, made under penalty of perjury, that you have a good faith belief that the removal of the material was a mistake or misidentified; and
· a statement that you consent to the jurisdiction of Federal District Court (i) in the judicial district where your address is located if the address is in the United States, or (ii) for the District of Colorado (Denver County), if your address is located outside the United States, and that you will accept service of process from the complainant submitting the infringement notice or his/her authorized agent.
12.5 Colorado-Based. The Commerce Sync Solution is controlled by us from our offices in Colorado. We make no representation that the Commerce Sync Solution is appropriate for use in other jurisdictions. Your use of or access to the Commerce Sync Solution will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than Colorado.
12.6 Governing Law; Choice of Forum. The Subject Matter (as defined in section 10.2), and any disputes between us and related to or concerning any of the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the laws of Colorado, without regard to conflicts of laws rules, and to the maximum extent permitted by applicable law, the parties hereby waive the right to a jury trial for any such disputes. Subject to section 12.7, the state and federal courts located in Denver County, Colorado will have jurisdiction over any disputes between the parties arising out of or related to the Subject Matter, and both parties hereby consent and submit to the jurisdiction of such courts for such disputes and waive any objections to the exercise of such jurisdiction. If you are a resident of the US, such courts will have exclusive jurisdiction over any such disputes, except that we may bring an action for recovery of injunctive or provisional relief, or an action claiming infringement or misappropriation of intellectual property rights, or both, in any court of competent jurisdiction under the laws applicable thereto. If you are not a resident of the US, such jurisdiction will be non-exclusive.
(a) Any disputes between or claims brought by you or us arising out of or related to the Subject Matter (as defined in section 10.2), including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the enforceability of this section 12.7 and the arbitrability of any disputes (subject to sections 12.7(d) and 12.7(e) below) will be referred to and finally settled by (1) informal means as set forth in section 12.7(b), and if such means are unsuccessful at resolving the dispute(s), (2) binding arbitration as specified in this section 12.7. If you are a US resident, such arbitration will be conducted before a single arbitrator conducted by the American Arbitration Association (AAA), in accordance with (except as inconsistent with this section 12.7) the AAA Consumer Arbitration Rules in effect at the time of arbitration (current version available here). If you are not a resident of the US, arbitration will be conducted before a single arbitrator of the International Court of Arbitration in accordance with (except as inconsistent with this section 12.7) the Rules of Arbitration of the International Chamber of Commerce, Expedited Procedures (current version available here). All arbitral proceedings, hearings and submissions will be in the English language. The parties agree that this section 12.7 states the exclusive means of resolving disputes between the parties regarding the Subject Matter, and that the parties therefore waive the right to a trial by jury.
(b) Except for actions or claims described in section 12.7(e)(2) or 12.7(e)(3), we will first try to resolve dispute(s) between us informally and neither of us may start a formal arbitration proceeding for at least thirty days after one of us notifies the other of a dispute in writing. Notice of the dispute will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested.
(c) The arbitration will be conducted by telephone, videoconference, and/or based solely on written submissions if (1) the credibility of testifying witnesses is unnecessary to the resolution of the dispute; (2) the parties agree to waive in-person appearances; (3) the applicable arbitration rules permit waiver of or otherwise don't require in-person appearances; (4) the claim does not exceed $10,000; or (5) the arbitrator determines that in-person appearances are unnecessary or unhelpful, or would be burdensome to any of the parties to the arbitration or to their staff. If in-person appearance is required, and you are a US resident, such hearings will be held in any one of the following cities that is closest to your residence: New York City, New York; Chicago, Illinois; or Denver, Colorado. If in-person appearance is required, and you are not a US resident, such hearings will be held in any one of the following cities that is closest to your residence: New York City, New York; Chicago, Illinois; Denver, Colorado; Tokyo, Japan; or London, England. For clarity, nothing in these terms abrogates either party's right to a transcription of all arbitration proceedings at such party's own expense.
(d) The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class, consolidated or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. The validity and effectiveness of this section 12.7(d) is not arbitrable.
(e) Notwithstanding the foregoing, nothing in this section 12.7 will preclude the right and ability of either party to bypass arbitration and file and maintain at any time: (1) an individual action in US small claims court; (2) an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto; and (3) an action claiming infringement or misappropriation of intellectual property rights in any court of competent jurisdiction under the laws applicable thereto. Such actions, either party's right to pursue such actions, and the validity and effectiveness of this section 12.7(e) are not arbitrable.
(f) Subject to sections 12.7(d) and 12.7(e), all claims and disputes between the parties relating to the Subject Matter must be resolved using arbitration in accordance with this section 12.7. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion.
(g) Except to the extent required by law or in order to enforce arbitral awards in court, the parties shall keep confidential, make no public announcements regarding, and shall not disclose the existence of (1) any dispute, (2) the existence or details of the arbitration proceeding, and (3) all related documents, materials, evidence, judgments and awards therein.
(h) The arbitrator will apply the law specified in section 12.6, without regard to conflicts of law rules. If you are a US resident, the parties agree that these Terms evidence a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this section 12.7.
(i) The parties acknowledge that if one or more provisions of this section 12.7 is found to be unenforceable, invalid, preempted or unlawful for any reason, the parties' intention is to (1) maintain the enforceability of such invalid or unenforceable provision in any circumstances other than those this in which the provision is held to be unenforceable, (2) modify such provision to the extent the provision can be rendered enforceable, and (3) sever such invalid or unenforceable provision from the remaining section 12.7 so as to preserve as much of the remaining as possible, so that such provision will not impact the ability to compel arbitration of any remaining claims on an individual basis. To the extent that any claims must proceed on a class, collective, consolidated, or representative basis, such claims will be litigated in the courts specified in section 12.6, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.
12.8 Limitation. You agree that regardless of any statute of limitations to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.
12.9 Assignment. These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
12.10 Injunctive Relief. You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Commerce Sync Solution, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
12.11 Miscellaneous. The Terms constitute the entire agreement between you and us and govern your use of the Commerce Sync Solution, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms will remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. In the event of any conflict or inconsistency between these Terms and any Commerce Sync website page (including any page describing or summarizing your or our rights, obligations, and/or these Terms), these Terms will control. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party. The parties hereto confirm that they have requested that these Terms and all attachments and related documents, if any, be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.