Customers shall agree to substantially the following terms.
CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE PROVIDER IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR, AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING, THE CONTENT, FUNCTIONALITY, BUSINESS, LEGALITY, ACCURACY, COMPLETENESS, QUALITY, RELIABILITY, SECURITY, USEFULNESS OR PRACTICES OF ANY CUSTOMER SITES, FOR ANY INFORMATION COLLECTED IN CONNECTION WITH ANY CUSTOMER SITE OR FOR ANY DEALINGS WITH OR TRANSACTIONS CONDUCTED ON OR IN CONNECTION WITH ANY CUSTOMER SITE. CUSTOMER’S USE AND INTERACTIONS WITH THIRD PARTIES THROUGH CUSTOMER SITE IS AT CUSTOMER’S OWN RISK.
THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Customer acknowledges that, as between Customer and Service Provider, Service Provider or its licensors own all right, title, and interest in and to the Service, any of its trademarks and/or any content on Customer Site not posted by Customer, including all intellectual property rights therein (the “Service Provider IP”). Service Provider IP is protected by copyright, trade secret, and patent laws, and other proprietary rights and laws. All rights not expressly granted in this Agreement in and to the Service Provider IP are expressly reserved by Service Provider.
Customer shall own all right, title, and interest in and to any data that is collected by Service Provider from Customer or its end users in connection with the use of the Service and Customer Site (“Customer Data”). Customer grants to Service Provider a perpetual, non-exclusive, transferable, sublicensable, royalty-free license to use Customer Data in order to host the Customer Site and provide the Service to Customer, and as necessary to monitor and improve the Service. Customer agrees that Service Provider may use Customer Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such Customer Data (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that Service Provider collects or generates Blind Data, such Blind Data will be owned solely by Service Provider and may be used for any lawful business purpose without a duty of accounting to Customer, provided that Blind Data is not personally identifiable and does not identify the source of such Blind Data.
Customer shall not store, copy, modify, rent, lease, loan, sell, distribute, transfer, transmit, display, reverse engineer, reverse assemble, or otherwise attempt to discover any programming code or any source code used in or with the Service. Customer may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Service (which includes its software and documentation) or in any manner commercially exploit the Service, in whole or in part, except as provided herein.
Customer must include a terms of service or similar document that governs the end users’ use of and access to Customer Site (“Customer Terms”), which must include terms that are at least as protective of Service Provider as the terms of this AgreementService Provider shall be a direct and intended third party beneficiary of the Customer Terms. If end users provide Customer with, or if Customer Site collects, any personal or sensitive information including without limitation, user names, passwords or other login information, or location-based information, Customer must make end users aware that such information will be available to Customer, and Customer must provide legally adequate privacy notice for end users.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL SERVICE PROVIDER (INCLUDING ITS SUBSIDIARIES, AFFILIATES, CLIENTS, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, OR (II) TOTAL DAMAGES IN EXCESS OF THE AGGREGATE DOLLAR AMOUNT WHICH CUSTOMER PAID DIRECTLY TO SERVICE PROVIDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
SUCH LIMITATIONS SHALL APPLY TO SERVICE PROVIDER’S TOTAL LIABILITY, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMMUNICATIONS FAILURE, THEFT OF DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. THE FOREGOING LIMITATIONS APPLY EVEN IF A SERVICE PROVIDER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
By posting any Customer Content on Customer Site or providing Customer Content through the Service, Customer hereby grants to Service Provider a non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute the same (in whole or in part) solely to provide Customer with the Service and to host Customer Site.
Customer Content shall not be malicious, defamatory, obscene, pornographic, abusive or threatening, or promote illegal or immoral activities. Customer represents to Service Provider that (a) Customer has the right to share Customer Content via the Service, and (b) the posting and sharing of Customer Content via the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity.
All disputes or claims in connection with this Agreement (whether arising in contract, tort or otherwise) are governed by the laws of the State of Texas and the United States of America, and the parties hereby consent to Bexar County, Texas being the exclusive jurisdiction and venue of courts for all disputes or claims in connection with this Agreement.