These Terms of Service constitute a legally binding agreement between you ("Customer") and Cascade Labs, Inc. (together with its affiliates, “Cascade”, "Company", “we,” “our” or “us”) governing your use of our products, services, and website (the “Site” and collectively with the foregoing, the “Services”).
This agreement may be used in conjunction with an order form for Services ("Order Form"). The effective date of this agreement shall be the earlier of (i) the effective date set forth on the Order Form and (ii) the date the Customer first began using Company’s Services.
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, OR ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES. These Terms of Service are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Services, whichever is earlier. If you accept or agree to these Terms of Service on behalf of your employer or another legal entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to these Terms of Services; (ii) you have read and understand these Terms of Service; and (iii) you agree to these Terms of Service on behalf of the party that you represent and any permitted users of such party. In such event, “you” and “your” will refer and apply to your employer or such other legal entity.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND CASCADE CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 13). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
1. Our Services
Our Services consist of data modeling, manipulation, analysis and publishing tools built that makes use of user-provided data.
2. Account, Password and Security
You must register with Cascade and create an account to use the Services (an “Account”) and as part of that process you will be requested to provide certain information, including without limitation your name and email address. By using the Services, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and Account number provided by you or given to you by Cascade for accessing the Services. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. Cascade has no control over the use of any user’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you agree to contact Cascade immediately.
The person signing up for the Services will be the contracting party (“Account Owner”) for the purposes of these Terms of Service and will be the person who is authorized to use any corresponding Account we provide to the Account Owner in connection with the Services; provided, however, that if you are signing up for the Services on behalf of your employer, your employer shall be the Account Owner. As the Account Owner, you are solely responsible for complying with these Terms of Service and only you are entitled to all benefits accruing thereto. Your Account is not transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account.
Subject to the terms of this agreement, Company will use commercially reasonable efforts to provide Customer Services. As part of the registration process, Customer will identify the individuals that should have access to the Platform, and Company reserves the right to review and approve such list prior to providing access to the Platform to such individuals (such approved individuals, “Users”); provided that such approval shall not be unreasonably withheld. Customer will provide Users’ email addresses to Company, and Company will invite such Users to access the Platform by email by first setting up an username and password for such User’s account. Company reserves the right to refuse registration of, or cancel usernames or passwords it deems inappropriate.
Subject to the terms hereof, Company will provide Customer and its Users with reasonable technical support services in accordance with Company’s standard practice.
3. User Content
“User Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the Services and other users.
You agree that you are solely responsible for the User Content, User Content sent or transmitted by you or displayed or uploaded by you in using the Services, and for compliance with all laws applicable to the User Content, including, but not limited to, any laws requiring you to obtain the consent of a third party to use the User Content and to provide appropriate notices of third party rights. You represent and warrant that you have the right to upload the User Content to the Services and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Cascade be liable in any way for any (a) User Content that is transmitted or viewed while using the Services,(b) errors or omissions in the User Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to User Content. Although Cascade is not responsible for any User Content, Cascade reserves the right to delete any User Content, at any time without notice to you, if Cascade becomes aware that it violates any provision of this Agreement or any law. You retain copyright and other rights you already hold in User Content.
Cascade acts merely as a passive conduit for your online distribution and publication of your User Content. You acknowledge and agree that Cascade:
· Is not involved in the creation or development of User Content.
· Disclaims any responsibility for User Content.
· Cannot be liable for claims arising out of or relating to User Content.
· Is not obligated to monitor, review, or remove User Content, but reserves the right to limit or remove User Content on the Services at its sole discretion.
You hereby represent and warrant to Cascade that your User Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law ,statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Cascade or purport you to act as a representative or agent of Cascade; and (viii) will not create liability for Cascade or cause Cascade to lose (in whole or in part) the services of its ISPs or other suppliers.
4. Restrictions and Responsibilities
Customer and its Users will not, directly or indirectly: (i) reverse engineer, decipher, decompile, disassemble, copy, translate, modify or otherwise create derivative works based on the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to Services (“Software”); (ii)access or attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or Software for any purpose that is outside of the PermittedPurpose (as defined below), (iii) copy, adjust, modify, translate, or create derivative works based on Services or any Software (except to the extent expressly permitted by Company in writing or authorized within Services); (iv) useServices or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; (v) remove any proprietary notices or labels; (vi) upload any Customer Data (as defined below) or any content, data or information that is unlawful, infringing of other parties’ intellectual property rights, harmful to the Platform, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or otherwise objectionable, (vii) use the Services in any manner that is not authorized by this agreement or any Order Form, (viii) interfere with or disrupt the Software, the Platform, Services, the Company systems used to host Services, other equipment or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services made known to Customer, (ix) provide, or make available, any links, hypertext(Universal Resource Locator (URL) address) or otherwise (other than a "bookmark" from a Web browser) to Services, or any part thereof, (x) provide access to the Platform or Services to any third party or any party that is not an approved User, or (xi) make any use of Services in a manner that violates any applicable local, state, national, international or foreign law.
Subject to the restrictions set forth in the paragraph above, Customer and its Users may access the Platform and Company’s code for the limited purpose (the “Permitted Purpose”) of writing custom code to support Customer’s use of the Services and Software (the “Custom Code”).
Customer represents, covenants, and warrants that Customer will use Services only in compliance with Company’s standard published policies then in effect (“Policy”) and all applicable laws and regulations. AlthoughCompany has no obligation to monitor Customer’s use of Services, Company may do so and may prohibit any use of Services it believes may be (or alleged to be)in violation of the foregoing.
Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, accessor otherwise useServices, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).Customer will also be responsible for maintaining the security of Equipment,Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or Equipment with or without Customer’s knowledge or consent.
Customer will notify Company of any breaches or violations of this agreement and will fully cooperate with Company’s efforts to mitigate any harm that may result from such violations.
5. Confidentiality, Proprietary Rights
Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of Disclosing Party).Proprietary Information of Company includes non-public information regarding features, functionality and performance of Service. Proprietary Information ofCustomer includes non-public data, materials, and information, including code, provided by Customer to Company to enable the provision of Services (“Customer Data”). Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii)not to use (except in performance of Services or as otherwise permitted herein)or divulge to any third person any such Proprietary Information. DisclosingParty agrees that the foregoing will not apply with respect to any information that Receiving Party can document (a) was in its possession or known by it prior to receipt from Disclosing Party, or (b) was rightfully disclosed to it without restriction by a third party, or (c) was independently developed without use of any Proprietary Information of Disclosing Party or (d) is required to be disclosed by law.
Customer will own all right, title and interest in and to (i)Customer Data, as well as (ii) the following data based on or derived fromCustomer Data and provided to Customer as part of Services: data uploaded or imported datasets, analytical processes and published datasets. Company will own and retain all right, title and interest in and to (a) Services, Platform and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) the Custom Code, provided thatCompany hereby grants Customer an exclusive, royalty-free, sublicensable, worldwide license to access and use the Custom Code in connection with Services during the term of this agreement, and (d) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company will have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of Services, the Platform and related systems and technologies (including, without limitation, information concerningCustomer Data, data derived therefrom and individual User’s creation of CustomCode and access to and use of the Company’s code), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance Services and for other development, diagnostic and corrective purposes in connection with Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
6. Payment of Fees
Customer will pay to Company then applicable fees described in the Order Form for Services and Implementation Services in accordance with the terms therein (“Fees”). If Customer’s use of Services exceeds Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of Initial Service Term or then-current renewal term, upon thirty (30)days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contactCompany no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer will be responsible for all taxes associated with Services other than U.S.taxes based on Company’s net income.
7. Term and Termination
Subject to earlier termination as provided below, this agreement is for Initial Service Term as specified in Order Form and will be automatically renewed for additional periods of the same duration as Initial Service Term (collectively, “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this agreement. Customer will pay in full for Services up to and including the last day on which Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. Company shall delete stored Customer Data no later than thirty (30) days thereafter. All sections of this agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8. Representations and Warranties
You represent and warrant that: (i) you are 18 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and(ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You agree not to engage in any of the following prohibited activities, among others: (i)copying, distributing, or disclosing any part of the Services in any medium other than as allowed by the Services and these Terms of Service; (ii) using any automated system (other than any functionalities of the Services),including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited email or attempting to phish, pharm, pretext, spider, crawl, or scrape; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services;(v) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (vi) conducting any unlawful purposes or soliciting others to perform or participate in any unlawful acts; (vii)uploading invalid data, viruses, worms, or other software agents through the Services;(viii) infringing upon or violate our intellectual property rights or the intellectual property rights of others; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) harassing, insulting, harming, abusing, defaming, abusing, harassing, stalking, threatening, intimidating or otherwise violating the legal rights (such as of privacy and publicity) of any other users or visitors of the Services or staff member of Cascade;(xi) interfering with or any activity that threatens the performance, security or proper functioning of the Services; (xii) uploading or transmitting viruses or any other type of malicious code; (xiii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Services; (xiv) bypassing the security features or measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (xv) attempting to access unauthorized Accounts or to collect or track the personal information of others; (xvi) using the Services for any purpose or in any manner that infringes the rights of any third party; (xvii) extract data from inside our firewall to outside of the firewall; or (xviii) encouraging or enabling any other individual to do any of the foregoing.
You hereby warrant and represent that, other than as fully and promptly disclosed to Cascade as set forth below, you do not have any motivation, status, or interest which Cascade may reasonably wish to know about in connection with the Services, including without limitation, if you are using or will or intend to use the Services for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Cascade in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Services.
You may not access or use the Services in order to compete directly or indirectly with Cascade, or for monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes.
9. Use of Name
Company would like to use Customer’s name on its website and marketing materials in a listing of companies that have used Company’s services. By signing below or the applicableOrder Form, Customer is consenting to such use, consistent with Customer’s trademark guidelines in effect from time to time. However, Company will remove Customer’s name from any listing or marketing materials immediately upon the Customer’s written request.
10. Links to Third-Party Websites
The Services may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Cascade or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Services as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Cascade does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Cascade is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Cascade has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Services at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Cascade expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Services. You hereby agree to hold Cascade harmless from any liability that may result from the use of links that may appear on the Services.
As part of the functionality of the Services, you may link your Account with online accounts you may have with third-party service providers, such as Google and Microsoft (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Services; or (ii) allowing Cascade to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Cascade and/or grant Cascade access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Cascade to pay any fees or making Cascade subject to any usage limitations imposed by such third-party service providers. By granting Cascade access to any Third-Party Accounts, you understand that (1)Cascade may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the Services via your Account, including without limitation any friend lists, and (2) Cascade may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your Account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable or Cascade’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Services. You will have the ability to disable the connection between your Account on the Services and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY PROVIDERS. Cascade makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Cascade is not responsible for any SNS Content.
11. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that users see or read through the Services is owned by Cascade, excluding User Content, which users hereby grant Cascade a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Cascade owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. You may not copy, download, use, redesign, reconfigure, or retransmit anything from the Services without Cascade’s express prior written consent and, if applicable, the holder of the rights to the User Content.
Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Cascade and, if applicable, the holder of the rights to the User Content.
The service marks and trademarks of Cascade, including without limitation Cascade and Cascade logos, are service marks owned by Cascade. Any other trademarks, service marks, logos and/or trade names appearing via the Services are the property of their respective owners. You may not copy or use any of these marks, logos or tradenames without the express prior written consent of the owner.
Additionally, you may choose to or we may invite you to submit comments, ideas, or feedback about the Services, including without limitation about how to improve our services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Cascade under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on anon-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Cascade does not waive any rights to use similar or related Feedback previously known to Cascade, developed by its employees, or obtained from sources other than you. You acknowledge that all email and other correspondence that you submit to us shall become our sole and exclusive property.
12. Copyright Complaints and Copyright Agent
Cascade respects the intellectual property of others, and expects users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Services infringe upon your copyright or other intellectual property right, please send the following information to Cascade’s Copyright Agent at firstname.lastname@example.org or 101A ClayStreet, #126, San Francisco, California 94111:
● A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Services where the material you claim is infringed is located. Include enough information to allow Cascade to locate the material, and explain why you think an infringement has taken place;
● A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
● Your address, telephone number, and e-mail 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;
● A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
● An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
13. Disclaimer of Warranties
Company will use reasonable efforts consistent with prevailing industry standards to maintain Services in a manner which minimizes errors and interruptions in Services and will perform Implementation Services in a professional and workmanlike manner.Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, butCompany will use reasonable efforts to provide advance notice in writing or bye-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES. EXCEPT AS EXPRESSLY SET FORTH INTHIS SECTION, SERVICES, THE PLATFORM, ANY RELATED CODE,AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ANDNON-INFRINGEMENT. CASCADE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICES OR THE CONTENT OF ANY SITES LINKED TO THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES,OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
UNDER NO CIRCUMSTANCES WILL CASCADE AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA,LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY Cascade, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OFTHE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TOYOU IN THEIR ENTIRETY.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT CASCADE AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO CASCADE DURING THE SIX MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Customer shall indemnify and hold Company and its directors, officers, and agents harmless from claims arising from or related to (a) any use of Services or Platform by Customer or its Users (i) in breach of this Agreement, (ii) in contravention of any requirements, procedures, policies or regulations of Company applicable to the Services and made known to Customer or (iii) in violation of any applicable law or regulation or in violation of the legal rights of others or(b) Customer’s misappropriation of Company’s code in violation of this agreement. The foregoing obligations shall apply regardless of whether the damage is caused by the conduct of Customer or itsUsers or by the conduct of a third-party using Customer’s access credentials. The foregoing is, however, conditional upon Company (x) notifying Customer thereof in writing and in detail without undue delay, (y) authorizing Customer to conduct any judicial and extrajudicial proceedings with the third party on its own, and (z)providing Customer, at the expense of Customer, with any reasonable assistance so that Customer may defend against the claim.
15. Limitation of Liability
EXCEPT WITH RESPECT TOTHE OBLIGATIONS SET FORTH IN SECTION 8 AND NOTWITHSTANDING ANYTHING TO CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS(INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS),OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS,SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY,INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this agreement will otherwise remain in full force and effect and enforceable. This agreement is not assignable, transferable or sublicensable by Customer except withCompany’s prior written consent. Company may transfer and assign any of its rights and obligations under this agreement without consent. This agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this agreement andCustomer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This agreement will be governed by the laws of the State ofCalifornia without regard to its conflict of laws provisions.
17. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND Cascade CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION,REQUIRE YOU AND Cascade TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Services, you will contact us at email@example.com you and Cascade will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a “Dispute” as defined below. Except for the right to seek injunctive or other equitable relief described under the “Binding Arbitration” section below, should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys' fees, even if you may have been entitled to them otherwise.
Binding Arbitration. You and Cascade agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Services(collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Cascade both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Cascade in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Class Action Waiver. You and Cascade agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and Cascade both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Cascade agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at1-800-778-7879).
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless you and Cascade agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Cascade submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
18. Governing Law
Except as provided in Section 13 or expressly provided in writing otherwise, this Agreement and your use of the Services will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement.
19. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
20. General Provisions
Failure by Cascade to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Cascade with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Class Action Waiver” in Section 13, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary, (2) to an acquirer of assets, or (3) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Cascade, its successors and assigns.
21. Changes to this Agreement and the Services
22. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
23. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications(collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
24. Contacting Us
If you have any questions about these Terms of Service or about the Services, please contact us by email at firstname.lastname@example.org or by mail to Cascade Labs, Inc., 101A Clay St.,#126, San Francisco, California 94111.