CA Billing LLC Data Analytics Platform Agreement
Prior to your use of the Data Analytics Platform, Software and Services (each as defined below), you must agree to the terms of this Data Analytics Platform Agreement (this “DAPA”), which shall govern your use of the Software and Services in all respects.
References in this DAPA to “we,” “our,” “us,” and “Company” herein means CA Billing, LLC. References herein to “you,” “your,” and “licensee” in this DAPA refers to the individual and, if applicable, the entity such individual represents using the Data Analytics Platform (hereafter “Platform”), Software and/or Services. For purposes of this DAPA, “Software” means that certain Helios analytics software, including (as applicable) data pipelines, data analysis, data warehousing and data visualization software or some portion thereof.
Section 1. Your Acceptance of this DAPA
(a) Please read this DAPA in its entirety. If you do not agree to be bound by this DAPA, you are prohibited from using the Software and the Services. This DAPA sets forth your rights and obligations in connection with your access and use the Software and any Services made available to you through the Software.
(b) You must be and hereby represent and warrant to the Company that you are at least 18 years old and are located in the United States or such other jurisdiction as may be agreed to by Company in in order to use the Software and Services. By accepting this DAPA, you further represent and warrant to the Company that you have all necessary authority to enter into this DAPA on behalf of yourself, or, if applicable, the legal entity you represent. If you cannot make the above representations and warranties, you are prohibited from agreeing to this DAPA and using the Software and/or Services.
(c) This DAPA is a binding legal agreement between you and Company and governs in all respects your use of the Software and any dashboards, content, and other services made available to you by or through the use of the Software (collectively, the “Services”), unless an alternate agreement is provided to you with respect to any of the foregoing. You understand and agree that the Company is providing all or a portion of the Software and Services through third parties (each, a “Company Service Partner”). The Company Service Partners shall be intended third party beneficiaries of this DAPA, with full power and authority to enforce all rights hereunder against you as if such Company Service Partner had entered into this DAPA with you directly.
(d) Your acceptance of this DAPA may be memorialized by (i) clicking on an acceptance button with respect to the DAPA, if one is provided by us, either as part of the registration process or in connection with the access of the Software; (ii) by consenting to be bound via your execution of this Agreement and/or otherwise legally accepted by you; or (iii) by actually using the Software and/or Services, or some portion thereof, in which case your usage shall be deemed an acceptance of this DAPA commencing upon your first use of the Software and/or Services or some portion thereof.
Section 2. Using the Software and Services
(a) You shall only use the Software and Services for the purposes set forth in this DAPA and/or in the Software description and all such use must comply with all applicable laws, rules and regulations, as well as applicable guidelines and practices applicable to such Software and Services, as may be promulgated in all jurisdictions with authority over your use of the Software and Services, including all applicable privacy, data, and software export laws.
(b) You are prohibiting from engaging in any activity that disrupts or otherwise interferes with the proper function of the Software and/or Services, as well as any servers, technology, equipment and or network infrastructure provide and/or accessible in connection with same.
(c) In connection with your use of the Software and Services, you agree that you shall not (i) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code for the Software, except as may permitted by applicable law; (ii) alter, obscure or remove any copyright or other proprietary notices on the Software and/or the Services or any documentation related thereto; and/or (iii) create derivative works from, adapt, translate, alter, or embed into any other service or product with or into the Software and/or Services.
(d) Neither Company nor any Company Service Providers shall have any responsibility or liability to you or any third party as a result of your breach of your obligations hereunder, which breach shall be solely your responsibility.
Section 3. License Granted
The Company hereby grants you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to access and use the Software and the Services, subject at all times to the limitations, prohibitions and restrictions set forth herein. Under no circumstances are you allowed to sell, trade or resell the Software or Services in any way or for any purpose, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements. Under no circumstances may you assign or sublicense your rights to use the Software and/or Services pursuant to this DAPA or otherwise transfer, hypothecate, or grant a security interest in any of your rights granted pursuant to this DAPA. You are prohibited from creating, posting, transmitting, uploading, displaying, or otherwise making use of the Software and/or Services made available to you for any purposes other than as set forth in this DAPA, unless you first receive the express written consent of the proper owner of such Software and Services. For clarity, the foregoing license is granted to you solely to enable you to use Software and Services in a manner consistent with this DAPA.
Section 4. Reserved
Section 5. Updates; Discontinuation and Suspension
(a) Company or Company Service Providers may update, modify and otherwise change the Software and/or the Services without notice to you and you agree to same. Such updates may improve, enhance and/or further develop the Software and/or the Services, including updates for bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Company and/or Company Service Providers to deliver these updates) in connection with your use of the Software and Services. Your continued use of the Software and/or Services following any such updates, modifications, and/or changes constitutes your acceptance of same in all respects.
(b) The Company may permanently or temporarily terminate or suspend the provision of the Software and/or Services or any portion thereof to you or in general for any reason or no reason, in its sole discretion at any time, with or without notice to you. In such an event, you understand and agree that you may be unable to access the Software, the Services, and any content, files and/or information, including your account information, that was previously accessible to you.
Section 6. Your Content
You shall be solely liable for any damages arising out of any violation of any third party rights and/or any other damages that result from content that you use, upload, post, transmit, display or otherwise make available on or through the Software and/or Services (including, without limitation, your data, files, information, and materials). You are responsible for ensuring that any content that you use, upload, transmit, display, post, or otherwise make available on or through the Software and Services is done in full compliance with any applicable third-party proprietary right, including copyright and/or trademark right. You agree not to use, upload, transmit, display, post, or otherwise make available on or through the Software and Services any content that (i) contains any viruses, trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines, (ii) for which you do not have all necessary and proper rights and/or licenses to use; and/or (iii) otherwise violates any applicable state, national or international law.
Section 7. Ownership and Intellectual Property Rights
(a) You acknowledge and agree you have no rights to use any of Company’s and/or the Company Service Partners’ trademarks, service marks, trade names, logos, domain names, and other distinctive brand features. Company and/or the Company Service Partners own all legal right, title and interest in and to the Software and the Services, including any intellectual property rights with respect to same (whether those rights are registered or not, and regardless of the jurisdiction in which such rights may exist). You acknowledge and agree to same. The foregoing statement of ownership is subject to all applicable open source and/or third-party licenses with respect to the Software and the Services that Company is subject to or that are otherwise applicable to Company.
(b) You hereby grant Company and/or the Company Service Partners a worldwide license to use, broadcast, reproduce, recreate, store, distribute, have distributed, edit, publicly and privately display, communicate, publicly and privately perform, transmit, have transmitted, create derivative works based upon, and promote any content that you use, upload, post, transmit, display or otherwise make available on or through the Software and/or the Services, but restricted solely to the purposes of performing its obligations hereunder.
(c) Subject at all times to the license set forth in Section 7(b) above, Company acknowledges and agrees that it obtains no right, title or interest in or to any content used, uploaded, posted, transmitted, displayed or otherwise made available by you on or through the Software and/or the Services, including any intellectual property rights therein. Company shall have no responsibility to protect and/or enforce any such intellectual property rights in your content, for which you remain solely responsible.
Section 8. Termination
We reserve the right to immediately terminate this DAPA if you materially breach any provision hereof. Additionally, Company reserves the right to suspend and/or terminate its legal agreement with you pursuant to this DAPA and all access to the Software and Services at any time and for any reason or no reason without restriction. Until a termination, this DAPA will continue to apply to you and your use of the Software and/or Services. Upon the termination of this DAPA, you shall have no further rights or license to use the Software and/or Services for any reason.
Section 9. DISCLAIMER OF WARRANTIES
THE SOFTWARE AND SERVICES ARE PROVIDED BY THE COMPANY TO YOU SOLELY ON AN “AS IS, AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR THE COMPANY SERVICE PARTNERS REPRESENT OR WARRANT TO YOU THAT (i) YOUR USE OF THE SOFTWARE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (ii); YOUR USE OF THE SOFTWARE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS (iii) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE AND/OR SERVICES WILL BE CORRECTED; AND (iv) ANY CONTENT AND/OR INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SOFTWARE AND/OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY CONTENT SOURCED FROM THIRD PARTIES, INCLUDING COMPANY SERVICE PARTNERS, WILL BE ACCURATE OR RELIABLE. COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND SERVICES, AND/OR ANY CONTENT DELIVERED, SENT, ACCESSIBLE, OR RECEIVED BY OR THROUGH THE SOFTWARE AND THE SERVICES OFFERED BY COMPANY AND/OR ANY COMPANY SERVICE PARTNER, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. COMPANY DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, AVAILABILITY, RELIABILITY OR THE RESULTS OF THE USE OF THE SOFTWARE AND/OR THE SERVICES, OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION ANY COMPANY SERVICE PARTNER SERVICES AND/OR THE INFORMATION AND CONTENT DELIVERED, SENT, OR RECEIVED BY OR THROUGH THE SOFTWARE AND/OR SERVICES IN TERMS OF THE ACCURACY, VALIDITY, QUALITY, RELIABILITY, COMPLETENESS, STABILITY, CURRENTNESS, NON-INFRINGEMENT, OR OTHERWISE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND SERVICES IS ASSUMED AND BORNE BY YOU. SOLELY TO THE EXTENT THE ABOVE LIMITATIONS ARE UNLAWFUL IN YOUR JURISDICTION, THEN OUR LIABILITY TO YOU WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Section 10. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER COMPANY NOR ANY COMPANY SERVICE PARTNER WILL, IN ANY EVENT, BE LIABLE TO ANY PARTY, INCLUDING YOU FOR: (i) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES PROVIDED BY COMPANY OR ANY COMPANY SERVICE PARTNER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; (ii) THE USE OF THE SOFTWARE AND/OR SERVICES, INFORMATION OR CONTENT AVAILABLE FROM OR THROUGH THE SOFTWARE OR SERVICES, ANY DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR FOR THE RESULTS OBTAINED FROM THE USE THEREOF, AND/OR INFORMATION AND/OR THE CONTENT ACCESSIBLE FROM THE USE THEREOF; (iii) ANY CLAIM ATTRIBUTABLE TO ERRORS, DELAYS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF THE SOFTWARE AND/OR SERVICES, INFORMATION OR CONTENT, INCLUDING ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY OF THE FOREGOING; (iv) ANY CHANGES WHICH COMPANY OR ANY COMPANY SERVICE PARTNER MAY MAKE TO THE SOFTWARE AND/OR SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SOFTWARE AND/OR SERVICES (OR ANY PART THEREOF); (v) ANY SOFTWARE FORMING A PART OF THE SOFTWARE, THE SERVICES AND/OR CONTENT INFECTING OR CONTAMINATING A USER’S SYSTEM OR INFORMATION OR CONTENT; (vi) YOUR FAILURE TO PROVIDE COMPANY WITH ACCURATE ACCOUNT INFORMATION OR YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, AS APPLICABLE. THE FOREGOING LIMITATIONS ON THE LIABILITY OF COMPANY AND ANY COMPANY SERVICE PARTNER TO YOU SHALL APPLY WHETHER OR NOT COMPANY OR APPLICABLE COMPANY SERVICE PROVIDER HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. SINCE SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, COMPANY’S AND COMPANY SERVICE PARTNERS’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHICH SHALL NOT IN ANY CIRCUMSTANCES EXCEED (i) IN THE CASE OF THE COMPANY, THE TOTAL FEES PAID BY YOU TO COMPANY IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM, AND (ii) IN THE CASE OF THE COMPANY SERVICE PARTNERS, THE TOTAL FEES PAID BY COMPANY TO SUCH COMPANY SERVICE PROVIDER IN CONNECTION WITH YOUR USE OF THE SOFTWARE AND/OR SERVICES IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
Section 11. Third Party Software and Services
(a) Portions of the Software and the Services may link to or be provided from a third party, including without limitation, a Company Service Partner, including without limitation third party databases, directories, applications, websites, software, programs, services, servers, networks, and systems (collectively, “Third Party Services”). These Third Party Services are provided to you subject to your adherence to the Third Party Services Terms available at Exhibit A attached hereto and you hereby agree to be legally bound by same. In no way does Company manage or control any of the Third Party Services. Company shall have no responsibility with respect to any Third Party Services, including without limitation, the accuracy, availability, truthfulness, or functionality of any such Third Party Services. Company does not endorse or warrant any such Third Party Services or any product or service that may be available through such Third Party Service in any way by virtue of making it available to you.
(b) Some or all of the Software and Services provided by Company pursuant to this DAPA may allow for the sending, delivering or receiving of information between you and other third parties, including Internet end users, which may be processed, transferred, relayed or carried through networks, systems, servers, websites or applications (e.g. telephone and cellular networks, e-mail servers) that are not owned or controlled by Company (“Third Party Networks”). Under no circumstances shall Company in any way be responsible for the performance, functionality, quality, availability, or reliability of any of the Third Party Networks or any of the information processed, transfer, sent, delivered, relayed, carried or received through any such Third Party Networks. Company makes no guarantee or warranty that the information processed, transferred, sent, relayed, carried or delivered through Third Party Networks will reach its intended destination, or that the details of the recipient or sender are correct or accurate.
Section 12. Trademark and Copyright Claims Policy
(a) Respecting the rights of copyright holders is of extreme importance to us. When you use our Software and Services, you are also expected to respect the rights of copyright holders, including with respect to any of the content you use, upload, post, transmit, display or otherwise make available by you on or through the Software and/or the Services.
(b) You can submit a copyright infringement claim notice to us at firstname.lastname@example.org if you believe that any content appearing on our Software and/or Services violates your copyrights, provided that you have a good faith belief that your content has been copied and made accessible through the Software and Services in violation of your copyrights.
(c) Any copyright infringement claims notice must include the following in accordance with applicable law:
- A description of the materials you claim are infringing upon the copyrights of another along with reasonable information for us to find it within our Services;
- 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 the law;
- a demand that such allegedly infringing materials be removed or access disabled;
- a statement under penalty of perjury that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Reasonable contact information so we may contact and follow up with you, such as name, address, phone number and email address; and
- The signature (whether physical or electronic) of the person authorized to act on behalf of the owner of the copyright interest.
You are hereby advised that if the above notice requirements are not met, we may disregard the notice pursuant to 17 U.S.C. 512(c)(3). Pursuant 17 U.S.C. 512(f), you are additionally advised that you may be subject to civil penalties, including monetary damages, including costs and attorneys’ fees, incurred by the alleged infringer (including us or any Third Party Service provider, by any copyright owner or copyright owner’s authorized licensee, or by a service provider who is injured by your misrepresentation, if you knowingly making a material misrepresentation that online material or activity is infringing or that material or activity was removed or disabled by mistake or misidentification.
(d) If we receive a complaint from a third party and determine that your content should be removed in response to a complaint received in accordance with the above process, we may notify you of such determination by us and provide you with information necessary for you to contact the complaining party and contest such determination. You can write to us at email@example.com if you wish to contest such a decisions. Pursuant to 17 U.S.C. 512(g)(3), your notice of contest must include:
- A description of the materials that have 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 within our Services; and
- A statement under penalty of perjury, that you that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- Your consent to adjudicate your claim in the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are located outside of the United States, for any judicial district in which the applicable complaining party may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. 512(c)(1)(C) or an agent of such person;
- Reasonable contact information to follow up with you, such as name, address, phone number and email address; and
- Your signature or the person authorized to act on behalf of your behalf (whether physical or electronic).
Section 13. Amendments and Modifications.
We reserve the right, in our sole discretion, to amend, modify and otherwise change the terms of this DAPA at any time. In the event there are material changes to the DAPA, Company will provide notice to you either by sending you notice either via email or mail, in its sole discretion, or by posting a notice of such changes in a prominent position within the Services accessed by you. Any use of the Software and/or Services by you after the date the DAPA is changed shall constitute your acceptance of the DAPA, as modified for all purposes.
Section 14. Indemnification.
As additional consideration for your use of the Software and/or Services, you agree to fully indemnify and hold harmless Company and Company Service Partners and their respective officers, employees, agents, affiliates, partners, licensors, parents, and subsidiaries, from and against any demand or claim, including reasonable attorneys’ fees, made by any third party due to or arising out of (i) your use of the Software and Services, (ii) any violation by you of this DAPA, (iii) any content you use, submit, post, transmit or otherwise make available through the Software and/or Services, and/or any (iv) violation by you of any rights of another.
Section 15. Privacy and Security
(b) You acknowledge that there are certain inherent risks associated with the use of the Software and Services, including, (1) damage to any data or files stored on your computer or those of your end users, (2) the potential that others will have access to and be able to view your personal data, including your IP address, especially to the extent you make them publicly available, (3) potential damage to your computer systems, and (4) the potential that content you use, upload, post, transmit, display or otherwise make available on or through the Software and/or the Services will be redistributed and/or used without your permission or knowledge. You accept such risks in their entirety.
(c) You further acknowledge that you are aware that (1) data and information on the Software and/or Services may be subject to forgery, tampering, sniffing, spamming, eavesdropping, spoofing, password cracking, harassment, fraud, electronic trespassing, hacking, nuking, system contamination including viruses, worms and Trojan horses causing unauthorized, damaging and/or harmful access to, or retrieval of, information and data on your computer systems; (2) the Software and/or Services will have security and privacy limitations that may not be acceptable to you, including without limitation the limitation of security, privacy and authentication measures and features; (3) the privacy and security features available through the Software and the Services are provided to you solely as a convenience and may not operate according to their description or may not operate at all; (4) information, data or messages may not reach their destination or may reach an erroneous address or recipient; and (5) by activating certain features, you may provide third parties, including Company Service Partners, with certain limited remote access to certain files on your computer systems. Activating these features increases the risk that third parties will be able to tamper with your computer systems.
Section 16. Confidentiality.
You will not use any Confidential Information (as defined below) of the Company or any of the Company Service Partners for your own or any third-party benefit or for any purpose other than performing your obligations under this DAPA. You will use the same degree of care that you use to protect your own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information. “Confidential Information” means any and all information disclosed by Company, directly or indirectly, in writing, orally, electronically, or in any other form, in connection with your use of the Software and the Services made available to you hereby, including the Software and Services themselves. If the disclosure of Confidential Information is required by law, you shall promptly notify the Company in advance of such required disclosure if lawfully able to do so and use its best efforts to minimize the scope of such disclosure.
Section 17. Company Support
Except as otherwise agreed in writing, (i) the Company does not provide any assistance to its users, including you, (ii) your use of the Software and Services is at your sole complete risk, and (iii) Company does not undertake nor is it obligated to provide you with any updates, upgrades, bug fixes, error corrections and/or enhancements to all or any portion of the Software and/or Services.
Section 18. Rights and Remedies
(a) In addition to any other legal remedies that may be available to Company, we may seek and obtain injunctive relief against you in the event of your breach of this DAPA and/or the disclosure or misuse or threatened disclosure or misuse of any of the proprietary and/or Confidential Information of Company contained in or accessible through use of the Software and/or Services, the disclosure of which would give rise to irreparable injury to Company and/or its Company Service Providers, which could not adequately be compensated in damages.
(b) This DAPA is not intended to confer, nor does it confer, any rights or remedies upon any person other than Company and its Company Service Providers, that are intended third party beneficiaries hereof.
Section 19. General Terms.
(a) Construction. If any part of this DAPA is held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties hereto, and the remaining portions shall remain in full force and effect.
(b) Notices. Any and all legally required communications, including notices, disclosures, agreements, or other information required in connection with any of the Software and/or Services may be sent to you electronically, including via (i) e-mail to an e-mail address provided by you, and/or (ii) by pop up notice, system notice, or any other form of notice, on any portion of the Software and/or Services and/or by (iii) posting the notices on a main page or other page of the relevant Service, from Company and/or the Company Service Providers and you consent to the receipt of same (hereafter, “Notices”). Company may provide Notices to you regarding the Software and Services, including without limitation any notices with respect to violations of this DAPA, any updates to the Software Services or the DAPA, or any portions thereof, and promotional information. Regardless of whether you read a Notice when you receive it, the delivery of any Notice from Company is effective when sent by Company.
(c) Survival. Sections 2, 4 through 11, 14 through 16, and 18 through 19 shall survive the termination of this DAPA for any reason and the termination of your use of all or a portion of the Software and/or Services.
(d) Governing Law. This DAPA, including any amendments hereto, shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts-of-law rules. Notwithstanding the foregoing, your use of all or a portion of the Services may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Company or relating in any way to your use of the Company Services resides in the courts of the State of California. You further agree and expressly consent to the exercise of personal jurisdiction in the courts of California in connection with any such dispute, including any claim involving Company, the Company Service Partners, or their respective affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. The UN Convention on Contracts for the International Sale of Goods shall not apply to this DAPA.
(e) Assignment. Company reserves the right, in its sole and absolute discretion, to transfer, assign, sublicense or pledge in any manner whatsoever, any of its rights and obligations under this DAPA to any third party whatsoever, without your consent and without notice to you. You shall not transfer, assign, delegate, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement. Any purported assignment, sale, transfer, delegation or other disposition by you, except as permitted herein, will be null and void.
(f) Recovery of Fees. If you or we bring any legal action, including, without limitation, an action for arbitration or equitable relief, relating to this DAPA or the breach or alleged breach hereof by you, and the Company or applicable Company Service Partner is the prevailing party in any final judgment or arbitration award, or you voluntarily dismiss the action, the Company and/or applicable Company Service Partner will be entitled to reimbursement from you for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
(g) Force Majeure. Company will not be deemed in default of this DAPA to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government (including any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree), acts of war or terrorism, DDOS attacks, pandemic, shortage of materials, power or supplies, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, failure of transportation, power or communications, including Internet access, or of suppliers of goods or services, or any other cause beyond the reasonable control of Company or any Company Service Partner.
(h) Severability. If the application of any provision of this DAPA to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this DAPA will not in any way be affected or impaired thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
(i) Independent Contractors. The relationship of Company and you established by this DAPA is that of independent contractors, and nothing contained in this DAPA will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties.
(j) Export Control. You agree to abide by U.S. and other applicable export control laws and not to export, re-export or otherwise transfer, by electronic transmission or otherwise, any content or software, including the Software and Services, subject to restrictions under such laws to a national destination prohibited under such laws or to any person to whom exports, re-exports or transfers are prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Software and/or Services any content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
(k) Headings. The headings and captions used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
(l) Construction. The construction of this DAPA will not take into consideration the party who drafted or whose representative drafted any portion of it, and no canon of construction will be applied that resolves ambiguities against the drafter of a document.
(m) Entire Agreement. The provisions of this DAPA, including Exhibit A attached hereto which are incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof, and this DAPA supersedes all prior agreements or representations, oral or written, regarding such subject matter.
Exhibit A to DAPA
Third Party Service Terms
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