What We Collect and How We Use It
We collect a limited data set of information about you. Below, you will find a table of products and services and relevant privacy information:
Communication from you to us.
Purpose and Legal Basis for Processing
For identifiers, financial data, and information provided by you to our websites, we use that information as the basis to enter into a contract with you and provide services (pursuant to a contract) with you.For Tracking data, we gather that information to determine how users navigate and use our websites.
You have agreed to provide this information to us so that we may address your questions or concerns.
Automated Processing or Profiling
We do not use automated processing or profiling procedures on the information you provide to us.
Third parties that we use for gathering tracking data may use automated processing to evaluate the best method to market our websites to you.
For financial information, payment card processors may automate their processes for completing transactions from our website.
We do not use automated processing or profiling procedures on the information you provide to us.
Categories of Recipients who Receive this Personal Data
We and our affiliates, including any parent company or its affiliates, receive this information.
Online marketing analytics companies receive tracking data.
Payment card processors receive information to complete purchases from our website.Cloud service providers such as Amazon store the identifiers and information you input into our website.
We and our affiliates, including any parent company or its affiliates, receive this information.
Whether the Personal Data is Transferred Outside of the European Economic Area
As our services and Products are intended for use with the U.S. patent system, we expect you are outside the European Economic Area.
As our services and Products are intended for use with the U.S. patent system, we expect you are outside the European Economic Area.
We retain this information for a reasonable time after you end your commercial relationship with us.
We retain this information for a reasonable time after we have addressed the basis for your contacting us.
We do not knowingly attempt to solicit or receive information from children.
When and How We Share Information with Others
We do not sell your information to third parties. We share your information with third parties (such as cloud service providers, payment card processors, and web analysis companies) to provide the service to you, to process payment card information, and to analyze how you use our websites. Alternatively, we share access to information you have provided directly to such third parties.
Transfers of Personal Data
Your information is kept in the United States and we do not transfer it outside of the United States.
Security of Your Information
Our website uses security features and appropriate certificates to secure the information you provide to our websites.
The services we use to support our websites have the appropriate security programs to secure the information provided to them.
Data Protection Officer
If you have any questions about our privacy policies or practices contact our data protection counsel and data protection officer:
50 W Broadway, Suite 1000
Salt Lake City, Utah 84101
The Sites describe us, our history, and our Products. We may change, suspend, modify, or discontinue all or any part of the Sites in our sole discretion with or without notice. We are not liable if for any reason all or any part of a Site is unavailable at any time or for any period. We are not obligated to correct or update any information or content on the Sites. We reserve the right to block or deny access to a Site to anyone at any time for any reason.
We offer different platforms (the “Platforms”) through our Sites, and to use such platforms you must adhere to additional terms and conditions based on the Platform, as listed in the following:
ACCOUNT ACCESS AND SECURITY
You may choose to register and create an account to access certain content and functionality of the Sites, including any of the Platforms. If you choose to create an account, you must provide us an email address and password and may be required to provide additional personal information. To protect your account, you should choose a username and password that is not associated with your personal information.
You are responsible for maintaining the confidentiality of your account, password and other information. Any account you create is personal to you and you agree to not provide any other person with access to it. You agree to notify us immediately if you learn of any unauthorized access to or use of your account. You may be required to logout from your account at the end of each session. You should use caution when accessing your account from a public or shared computer so that others are not able to view your information. We may disable any account at any time in our sole discretion.
United States copyright law criminalizes production and dissemination of technology, devices or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of a copyright itself.
You agree that you will not post any User Content that (a) infringes or violates any other party’s intellectual property rights; (b) does not comply with applicable laws and regulations, or (c) contains any expressions of hate, abuse, offensive images or conduct, or any similar content. Without limiting the foregoing, User Content must not:
MONITORING OR REMOVAL OF USER CONTENT
We are not responsible or liable to any third party and assume no liability for any action or inaction regarding posting of User Content by any user or third party. At our discretion we may, but are not obligated to, take steps to monitor User Content; however, we do not review any material before it is posted, and cannot ensure prompt removal of objectionable material after it has been posted. We are not deemed to endorse, verify, or agree with any User Content.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content. YOU WAIVE AND HOLD HARMLESS US AND OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY US OR LAW ENFORCEMENT AUTHORITIES.
WE HAVE NO LIABILITY OR RESPONSIBILITY TO ANYONE FOR PERFORMANCE OR NONPERFORMANCE OF THE ACTIVITIES DESCRIBED IN THIS SECTION.
Additionally, you agree not to:
INTELLECTUAL PROPERTY RIGHTS
You may notify us of a suspected copyright infringement in accordance with the relevant provisions of the Digital Millennium Copyright Act.
All other names, logos, product and service names, designs and slogans on the Sites are the trademarks of their respective owners.
RELIANCE ON INFORMATION POSTED
The Sites may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person providing those materials. We are not responsible for the content or accuracy of any materials provided by any third parties. We do not warrant the accuracy, completeness or usefulness of any information on the Sites.
INFORMATION ABOUT YOU AND YOUR VISITS TO THE SITES
LINKING TO THE SITES AND SOCIAL MEDIA FEATURES
You may link to our Sites, provided you do so in a way that is legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.
LINKS FROM THE SITES
We are based in the State of Utah in the United States. We provide the Sites for use only by persons located in the United States. We make no claims that the Sites or any of its content is accessible or appropriate outside of the United States. Access to the Sites may not be legal by certain persons or in certain countries. If you access the Sites from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION ON LIABILITY AND TIME TO FILE CLAIMS
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITES.
IN NO EVENT WILL WE, OUR AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, MANAGERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SITES, ANY WEBSITES LINKED TO THE SITES, ANY CONTENT ON THE SITES OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITES OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
GOVERNING LAW AND JURISDICTION
You agree that the federal and state courts located in the of the State of Utah have exclusive jurisdiction over any legal proceedings relating to, arising out of, or connected in any way to your use of the Sites. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
In any litigation or legal proceeding involving us arising from or in connection with this Agreement, if we are the prevailing party in any such litigation or legal proceeding then we shall be entitled to recover its costs, expenses, and attorneys’ fees in any such litigation or legal proceeding, in addition to any other relief or remedy to which we may be entitled or granted.
You acknowledge that the Products may be subject to regulation by agencies of the U.S. Government, including without limitation the U.S. Department of Commerce, which prohibit export or diversion of certain goods to certain countries. Any and all obligations to provide access to or use of the Products are subject in all respects to such U.S. laws and regulations. You shall not, in any manner whatsoever, either remove, convey, export, re-export or transmit the Products or applicable technical data in contravention of applicable law and, in all cases, without our express prior written consent.
YOU AND WE ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section, DISPUTE RESOLUTION AND BINDING ARBITRATIONS. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section, DISPUTE RESOLUTION AND BINDING ARBITRATIONS.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR WE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
WAIVER AND SEVERABILITY
Any notices under or in connection with this Agreement between the parties hereto shall be in writing and shall be delivered personally, by first class mail (return receipt requested), or by prepaid express courier, and are effective upon receipt by the other party hereto. All such notices shall be addressed to the other party hereto at the main business address for such party, or at such other address, and in the case of Licensee to the email of Licensee, as such party may give notice of in accordance with the foregoing notice requirements. Alternatively, notices may be delivered as follows:
Nothing contained in this Agreement shall be construed as creating any agency, joint venture, partnership, franchise or any other form of joint enterprise between the parties hereto. The relationship between the parties hereto shall at all times be that of independent contractors. Neither party hereto shall have authority to contract for or bind the other party hereto in any manner whatsoever.
You shall not issue any press release, or similar document, or other public announcement respecting us or this Agreement without our express prior written consent.
Your Comments and Concerns
All feedback, comments, requests for technical support and other communications relating to the Website should be directed to: firstname.lastname@example.org.
TERMS OF SALE
BY PLACING AN ORDER FOR PRODUCTS FROM OUR SITES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU ARE PLACING AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM OUR SITES IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH US, OR (C) ARE PROHIBITED FROM ACCESSING OR USING OUR SITES OR ANY OF OUR SITES’ CONTENTS BY APPLICABLE LAW.
These terms and conditions (these "Terms") apply to the purchase and sale of Products through websites (the "Sites"). These Terms are subject to change by us without prior written notice at any time in our sole discretion. Any changes to the Terms will be in effect as of the "Last Updated Date" referenced on the Sites. You should review these Terms prior to purchasing any Products that are available through the Sites. Your continued use of any Site after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.
ORDER, ACCEPTANCE, AND CANCELLATION
You agree that your order is an offer to buy, under these Terms, all Products listed in your order. All orders must be accepted by us or we will not be obligated to sell the Products to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
PRICES AND PAYMENT TERMS
All prices, discounts, and promotions posted on the Sites are subject to change without notice. The price charged for a Product will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such increases. Posted prices include taxes, unless noted otherwise. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
We may offer from time to time promotions on the Sites that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. We accept American Express, Discover, Mastercard, and Visa for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Sites at the time of your order.
SHIPMENTS; DELIVERY; TITLE AND RISK OF LOSS
We will arrange for electronic delivery of the Products to you. Please check the individual Product page or order page for specific delivery options. If you wish for a physical copy of your purchase, you will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.
We will provide a refund of your purchase price, less the original shipping and handling costs, provided such return is made within 30 days of purchase. Your refund will be credited back to the same payment method used to make the original purchase on the Site. WE OFFER NO REFUNDS ON ANY PRODUCTS DESIGNATED ON THE SITE AS NON-RETURNABLE.
ALL PRODUCTS OFFERED ON THE SITES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
YOU AFFIRM THAT WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER'S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES OR LOST PROFITS ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS YOU HAVE ORDERED THROUGH OUR SITE.
The limitation of liability set forth above shall: (i) only apply to the extent permitted by law and (ii) not apply to (A) liability resulting from our gross negligence or willful misconduct and (B) death or bodily injury resulting from our acts or omissions.
GOODS NOT FOR RESALE OR EXPORT
You represent and warrant that you are buying Products from the Sites for your own personal or household use only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within the US.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
GOVERNING LAW AND JURISDICTION
The Sites are operated from the US. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Utah.
DISPUTE RESOLUTION AND BINDING ARBITRATION
You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by our duly authorized representative.
NO THIRD-PARTY BENEFICIARIES
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
SOFTWARE SERVICES AGREEMENT
LEGAL NOTICE: ANY ENTITY OR PERSON ACCESSING OR USING THESE SOFTWARE SERVICES IS HEREBY NOTIFIED THAT: (a) THE SOFTWARE SERVICES ARE NOT INTENDED TO AND DO NOT PROVIDE ANY LEGAL ADVICE, SERVICES OR OPINIONS, AND SHOULD NOT BE CONSTRUED AS AND SHOULD NOT BE RELIED UPON FOR ANY LEGAL OR COMPLIANCE ADVICE, SERVICES OR OPINIONS IN ANY PARTICULAR CIRCUMSTANCE OR FACT SITUATION; (b) THE SOFTWARE SERVICES MAY NOT REFLECT THE MOST CURRENT LEGAL DEVELOPMENTS OR STATE OF THE LAW; (c) NO ACTION SHOULD BE TAKEN OR NOT TAKEN BASED OR IN RELIANCE ON THE SOFTWARE SERVICES, AND WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACTION TAKEN OR NOT TAKEN BASED OR IN RELIANCE ON THE SOFTWARE SERVICES TO THE FULLEST EXTENT PERMITTED BY LAW; (d) AN ATTORNEY SHOULD BE CONTACTED FOR ANY ADVICE NEEDED ON ANY SPECIFIC LEGAL ISSUES; (e) NOTHING IN OR ASSOCIATED WITH THE SOFTWARE SERVICES OR THIS SOFTWARE SERVICES AGREEMENT IS ANY OFFER TO LEGALLY REPRESENT ANY ENTITY OR PERSON NOR IS INTENDED TO CREATE OR ESTABLISH ANY ATTORNEY-CLIENT RELATIONSHIP; AND (f) AN ATTORNEY-CLIENT RELATIONSHIP MAY ONLY BE ESTABLISHED THROUGH DIRECT ATTORNEY-TO-CLIENT COMMUNICATION THAT IS CONFIRMED BY THE EXECUTION OF AN ENGAGEMENT AGREEMENT BETWEEN AN ATTORNEY AND CLIENT.
THIS SOFTWARE SERVICES AGREEMENT (“AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH WE GRANT TO YOU (“LICENSEE”) THE RIGHT TO ACCESS AND USE THE SOFTWARE SERVICES. AS USED IN THIS AGREEMENT, LICENSEE SHALL MEAN ONLY A SINGLE ENTITY THAT THE INDIVIDUAL ACCEPTING AND AGREEING TO THIS AGREEMENT REPRESENTS AND PROVIDES SERVICES TO, AND IS ACCEPTING AND AGREEING TO THIS AGREEMENT FOR AND ON BEHALF OF, AND DOES NOT INCLUDE ANY OTHER ENTITY, SUBSIDIARY OR AFFILIATE, ALL OF WHICH ARE EXCLUDED FROM THE DEFINITION OF LICENSEE AND THIS AGREEMENT. IF LICENSEE DOES NOT ACCEPT AND AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO GRANT ACCESS TO AND USE OF THE SOFTWARE SERVICES TO LICENSEE, LICENSEE IS NOT GRANTED ANY RIGHT TO ACCESS OR USE THE SOFTWARE SERVICES, AND LICENSEE IS PROHIBITED FROM ACCESSING OR USING THE SOFTWARE SERVICES IN ANY MANNER WHATSOEVER. BY LICENSEE ACCESSING OR USING THE SOFTWARE SERVICES IN ANY MANNER WHATSOEVER, LICENSEE SHALL BE DEEMED TO HAVE ACCEPTED AND AGREED TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT ACCEPT AND AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND LICENSEE HAS PAID THE APPLICABLE FEE TO ACCESS AND USE THE SOFTWARE SERVICES TO US PRIOR TO LICENSEE HAVING HAD THE OPPORTUNITY TO REVIEW, ACCEPT AND AGREE TO THIS AGREEMENT, THEN LICENSEE SHOULD CONTACT US FOR A REFUND OF SUCH FEE.
IN CONSIDERATION OF THE PREMISES AND MUTUAL COVENANTS SET FORTH IN THIS AGREEMENT, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, WE AND LICENSEE AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
Access. Subject to the terms and conditions of this Agreement and only during the Term (as defined below) of this Agreement, we will provide Licensee with access to and use of, on a non-exclusive, non-transferable, non-sublicensable, limited, software-as-a-service (SaaS) basis through our designated web portal, the proprietary software services available on our Sites along with certain designated documentation for such software services (hereinafter collectively referred to as the “Software Services”), strictly for Licensee’s personal or internal business purposes under the terms and conditions of this Agreement.
Restrictions. Licensee shall not directly or indirectly resell, relicense, export, re-export, distribute, transfer or otherwise make available, the Software Services to any third party or person in any manner whatsoever. Licensee acknowledges and agrees that its access to and use of the Software Services shall be strictly through our designated web portal and Licensee shall have no right or license hereunder to download or install the Software Services or to possess physical copies the Software Services. Licensee acknowledges and agrees that the Software Services shall be used strictly for Licensee’s personal or internal business purposes, as the case may be, and shall not be accessed or used by Licensee for or on behalf of or made available by Licensee in any way to any Licensee customer, client, supplier, or any other third party or person. Licensee acknowledges and agrees that we and our licensors have no obligation or responsibility whatsoever to provide any support, maintenance, technical assistance or any other services for or in connection with the Software Services or under this Agreement.
Ownership. All right, title and interest in and to the Software Services, including without limitation all Intellectual Property (as defined below) rights in relation thereto, shall at all times remain with us or our licensors. We or our licensors reserve all rights not expressly granted. As used in this Agreement, “Intellectual Property” shall mean: (a) patents, patent applications and statutory invention registrations; (b) trademarks, service marks, trade dress, logos, trade names, corporate names, domain names, and other source identifiers; (c) copyrights and mask works; (d) trade secrets, including confidential and proprietary information and know-how; and (e) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired, arising under applicable law, including, in each case, all applications, issuances and registrations with respect thereto.
Disclaimer. Licensee acknowledges and agrees that: (a) access to and use of the Software Services is granted by us to Licensee strictly for use by Licensee in accordance with the terms and conditions of this Agreement; and (b) nothing in this Agreement grants to Licensee any right or license, expressly or by implication, to manufacture, duplicate or otherwise copy or reproduce the Software Services in any manner whatsoever. Licensee is prohibited from doing any of the following things to the fullest extent permitted by applicable law: (a) license, sublicense, lease, sublease, sell, distribute, transfer, rent, permit concurrent use of or grant other rights in or to the Software Services to any third party or person; (b) provide access to or use of the Software Services to any third party or person in a computer service business, network or time sharing arrangement; (c) transfer this Agreement or the access to or use of the Software Services to any third party or person; or (d) translate, modify, alter, adapt, create derivative works of, reverse engineer, decompile, disassemble, or attempt to discover or discern the source code for, any part of the Software Services.
Confidentiality. As used in this Agreement, “Confidential Information” shall mean the Software Services, and any other business or technical information and/or materials disclosed or provided by us to Licensee under or in connection with this Agreement. Confidential Information is hereby deemed to be proprietary to us or our licensors and shall be held in trust and confidence by Licensee for, and on behalf of, us and shall not be disclosed by Licensee or used by Licensee for any purpose other than as strictly permitted under this Agreement, without our express prior written consent in each instance. Licensee shall not transmit, transfer, maintain, remanufacture or duplicate all or any part of the Confidential Information except in accordance with the terms and conditions of this Agreement. Licensee shall be directly liable for the acts or omissions of its employees and agents with respect to such Confidential Information and for their compliance with the obligations of Licensee herein. Upon any termination or expiration of this Agreement, or otherwise at any time upon our request to Licensee, Licensee shall promptly return to us, or destroy (if so directed by us), all Confidential Information, including without limitation all drawings, specifications, data and other tangible materials containing Confidential Information, together with any and all copies thereof. If so requested by us, Licensee shall certify in writing to us that all Confidential Information has been so returned or destroyed (as applicable).
Feedback. If Licensee provides to us any feedback, suggestion, idea, comment, improvement or any other information regarding or in connection with the Software Services or any other products or services (“Feedback”), Licensee hereby grants to us, under all Licensee Intellectual Property rights, a perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, transferable, sublicensable, unlimited, worldwide license and right to: (a) use, copy, modify, adapt, create derivative works of, translate, distribute, transmit, display, perform, publish, commercialize and otherwise exploit any and all such Feedback, including as part of or in connection with the Software Services and/or any other products or services; and (b) develop, make, have made, use, offer for sale, sell, import, export and dispose of the Software Services and/or any other products or services that incorporate or utilize such Feedback. Any and all Intellectual Property rights that result or arise from our exercise of the foregoing licenses and rights to Feedback, including any research, development, use or commercialization of such Feedback, shall belong exclusively to us, and we shall have no obligation to Licensee whatsoever in relation thereto or in connection therewith.
Warranty Disclaimer. LICENSEE ACKNOWLEDGES AND AGREES THAT ACCESS TO AND USE OF THE SOFTWARE SERVICES IS BEING PROVIDED TO LICENSEE HEREUNDER STRICTLY ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER. WITHOUT LIMITING THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES WHATSOEVER ARISING OUT OF, RELATING TO OR RESULTING FROM THE SOFTWARE SERVICES OR THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND THOSE ARISING FROM A COURSE OF DEALING, USAGE, TRADE CUSTOM OR PRACTICE. THE ABOVE DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL ALSO APPLY TO OUR LICENSORS.
Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES WHATSOEVER ARISING OUT OF, RELATING TO OR RESULTING FROM THE SOFTWARE SERVICES OR THIS AGREEMENT. OUR ENTIRE AGGREGATE LIABILITY FOR ANY DAMAGES OR LOSSES WHATSOEVER ARISING OUT OF, RELATING TO OR RESULTING FROM THE SOFTWARE SERVICES OR THIS AGREEMENT SHALL IN ALL CASES BE LIMITED TO DIRECT DAMAGES ONLY WHICH SHALL NOT EXCEED THE TOTAL FEE AMOUNTS PAID BY LICENSEE TO US UNDER THIS AGREEMENT. THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (a) REGARDLESS HOW THE DAMAGES OR LOSSES WERE CAUSED; (b) REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY); (c) TO ANY LOST PROFITS OR LOST OR DAMAGED DATA; (d) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES OR LOSSES; (e) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (f) TO OUR LICENSORS.
Term. This Agreement is effective as of the earliest date of Licensee accessing or using the Software Services, and shall remain in effect until terminated as provided for herein (“Term”). We may terminate this Agreement immediately upon written notice to Licensee if Licensee is in breach of any of the provisions of this Agreement and such breach remains uncured ten (10) days following written notice of such breach by us to Licensee. Upon any termination or expiration of this Agreement, Licensee shall immediately cease all access to and use of the Software Services. The following Sections of this Agreement shall survive any termination or expiration of this Agreement: Sections 3 through 11 inclusive.
Export Restrictions. Licensee acknowledges that the Software Services may be subject to regulation by agencies of the U.S. Government, including without limitation the U.S. Department of Commerce, which prohibit export or diversion of certain goods to certain countries. Any and all obligations to provide access to or use of the Software Services are subject in all respects to such U.S. laws and regulations as shall from time-to-time govern the license and delivery of goods abroad by persons subject to the jurisdiction of the U.S.. Licensee shall comply with the Export Administration Regulations and other applicable U.S. laws and regulations governing exports in effect from time-to-time, and without limiting the foregoing, Licensee shall not export or re-export, or otherwise provide access to, the Software Services or any part thereof, or any technical data related thereto or the direct product of such technical data, to any country, or to any national or resident of any country, as to which the U.S. Government has placed an embargo against the shipment of goods, or anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. Licensee hereby confirms and agrees that Licensee is not a resident or national of, and this transaction is not in any way connected with, any jurisdictions which are prohibited by applicable law. Licensee agrees and confirms that Licensee and this transaction are in full and complete compliance with the applicable laws of Licensee’s jurisdiction, and that Licensee shall not, in any manner whatsoever, either remove, convey, export, re-export or transmit the Software Services from Licensee’s jurisdiction in contravention of applicable law and, in all cases, without our express prior written consent.
(a) This Agreement and all matters arising from or in connection with this Agreement shall be governed by the laws of the State of Utah, and applicable U.S. federal law, without giving effect to principles of conflicts or choice of law. Licensee agrees that the state and federal courts located in the State of Utah constitute a convenient forum and Licensee submits to the exclusive and personal jurisdiction and venue of such courts located in Salt Lake County, Utah. Notwithstanding the foregoing, we may apply to any court of competent jurisdiction to enforce or protect its Intellectual Property rights and/or Confidential Information, including without limitation to obtain injunctive or other equitable relief, without breach of this Section and without any abridgement of the powers of the courts set forth above. In any litigation or legal proceeding involving us arising from or in connection with this Agreement, if we are the prevailing party in any such litigation or legal proceeding then we shall be entitled to recover its costs, expenses, and attorneys’ fees in any such litigation or legal proceeding, in addition to any other relief or remedy to which we may be entitled or granted.
(b) Nothing contained in this Agreement shall be construed as creating any agency, joint venture, partnership, franchise or any other form of joint enterprise between the parties hereto. The relationship between the parties hereto shall at all times be that of independent contractors. Neither party hereto shall have authority to contract for or bind the other party hereto in any manner whatsoever.
(c) Any notices under or in connection with this Agreement between the parties hereto shall be in writing and shall be delivered personally, by first class mail (return receipt requested), or by prepaid express courier, and are effective upon receipt by the other party hereto. All such notices shall be addressed to the other party hereto at the main business address for such party, or at such other address, and in the case of Licensee to the email of Licensee, as such party may give notice of in accordance with the foregoing notice requirements. Alternatively, notices may be delivered as follows:
We may provide any notice to you by: (i) sending a message to the email address you provide, in which case notice will be effective when we send the email, or (ii) by posting to the Sites, in which case notice will be effective upon posting. It is your responsibility to keep your email address current and to visit the Sites regularly.
To give us notice, you may contact us by email at email@example.com.
(d) Licensee shall not issue any press release, or similar document, or other public announcement respecting us or this Agreement without our express prior written consent.
(e) We shall not be liable or responsible for failure to fulfill any obligations under this Agreement due to causes beyond its reasonable control, including without limitation acts of God, man-made or natural disasters, earthquakes, fire, riots, Internet, telecommunications or power failures, failure or delay of suppliers, flood, strikes, or acts of war.
(f) Licensee shall assign or transfer this Agreement, or any of its licenses, rights or obligations under this Agreement, without the our express prior written consent. We may assign or transfer this Agreement, and any of our licenses, rights or obligations under this Agreement, without notice to or consent of Licensee at any time. Any assignment or transfer of this Agreement, or any of the licenses, rights or obligations under this Agreement, in violation of the foregoing is void. Upon valid assignment or transfer, all rights, interest, and obligations shall transfer to the assignee.
(g) Any provision of this Agreement held to be invalid or unenforceable by a court of competent jurisdiction shall, as to such jurisdiction, be severed from this Agreement and ineffective to the extent of such invalidity or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(h) The delay or failure by either party hereto to exercise or enforce any of its rights under this Agreement shall not constitute or be deemed to be a waiver of such party’s right to enforce those rights or any other rights, nor shall any single or partial exercise of any such right preclude such party from any other or further exercise thereof or the exercise of any other right. No waiver of any provision of this Agreement shall be effective unless and to the extent it is expressly stated in writing signed by the party hereto against whom it is sought to be enforced.
(i) No right or remedy of ours in this Agreement is exclusive of any other right or remedy that may be available to us under this Agreement, at law or in equity, but rather each such right and remedy of ours shall be cumulative of every other right and remedy of ours under this Agreement, at law or in equity.
(j) Except as otherwise expressly provided in this Agreement or unless the context herein otherwise requires, in this Agreement: (i) the terms herein include the plural as well as the singular and vice-versa; (ii) words importing gender include all genders; (iii) any reference to a “Section” refers to a Section of this Agreement; (iv) all references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision hereof; (v) all Section headings are for convenience of reference only and shall not affect the interpretation or construction of this Agreement; (vi) the words “including,” “included” and “includes” shall mean inclusion without limitation; and (vii) and any legal or equitable principles that might require or permit the interpretation or construction of this Agreement or any provision hereof against the party hereto drafting this Agreement shall not apply in any interpretation or construction of this Agreement.
(k) The parties hereto acknowledge and agree that this Agreement is an “executory contract” for purposes of Section 365(n) of Title 11 of the United States Code, and contains licenses and rights to “intellectual property” as provided in Section 365(n) of Title 11 of the United States Code. Notwithstanding any provision contained within this Agreement to the contrary, if Licensee is under any proceeding under Title 11 of the United States Code and the trustee in bankruptcy of Licensee, or Licensee as a debtor in possession, elects to reject this Agreement, then we may, pursuant to Sections 365(n)(1) and (2) (or any successor provision(s)) of Title 11 of the United States Code, retain any and all of its license and rights under this Agreement as provided in Section 365(n) of Title 11 of the United States Code to the fullest extent permitted by applicable law.
(l) This Agreement may not be amended or modified except expressly in writing signed by both parties hereto.
(m) This Agreement (including the Legal Notices first set forth above in this Agreement) contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof and merges all prior agreements and understandings of the parties hereto relating to the subject matter hereof.
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