Terms and Conditions
TERMS OF SERVICE
Welcome to MindMetriks. Unless you have licensed the use of our software in a separate agreement signed by us, these Terms of Service govern your use of this website and the software and services made available here. To access the Service, users must at all times agree to and abide by these Terms of Service. The Service allows you to submit, store, and access certain business data and other information related to you, your customers, or your business.
This Terms of Service for the Service is a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age or a single company, organization, or entity (“Customer“) and dotin regarding your use of the Service.
By registering for and/or accessing, browsing, using or subscribing to the Service, or by clicking “I Agree,” or otherwise affirmatively manifesting your intent to be bound by these Terms of Service, you signify that you have read, understood, and agree to be bound by the following terms.
In consideration for the mutual promises and obligations set forth below, the parties agree:
1. DEFINITIONS“APIs” means the dotin APIs: http://api-doc.dotin.us/ and other APIs configured by dotin under an Order or SOW.
“Customer Data” means Confidential Information provided by Customer that may be used to operate the Service or may be stored on the Service.
“Download” means each image or file or data download on the Service for Customer.
“Extract” means using the Service to access publicly available information and/or Customer Data for Customer’s purposes.
“Documentation” means the published and released documentation, updates, electronic files, and manuals for the Service.
“Intellectual Property Rights” means all rights in trade secrets, patents, copyrights, trademarks, service marks, trade names, know-how or other intellectual property or proprietary rights, current or future, under the laws of any jurisdiction, with all applications therefore and registration thereto.
“Order” means an order for Service(s) placed by Customer through the dotin website for IPORTIO’s standard offering or an order that references these terms of service.
“Queries/URL” means the number of URLs used to obtain the Download and the number of times each URL is accessed to obtain the Download as stated in the plan identified in the Order or SOW.
“Report” means a report based on Downloads created from the Services.
“Service(s)” means the dotin software as a service including rights to use APIs, Professional Services, and any other product, license or services listed in an Order or SOW.
“Statement of Work or SOW” written order for Professional Service(s) signed by each party.
“Subscription Fees” means the fees Customer pays for the Services.
“Subscription Period” means the time period Customer may use the Services as stated in the Order or SOW.
“Subscription Plan Level” means the level of Services Customer subscribes to in an Order or SOW.
“Professional Services” means training, implementation or configuration services when specified in an SOW. The SOW shall set forth any fees and additional terms applicable for such professional services.
“Third Party Sites” means websites owned or operated by third parties.
“Update” means any new release, bug fix, workaround, modification, patch, patch bundle or hot fix to the Service. Updates shall not include any option or product which dotin licenses separately or offers to other customers for an additional fee, or any upgrade in features, functionality or performance of the Service which dotin licenses separately or offers for an additional fee.
2. SUBSCRIPTION RIGHTS2.1. Service License Grant to Use dotin. dotin grants, during the Subscription Period, Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Service according to the features, and volumes determined by the Subscription Plan Level
2.2. No Implied or Source Code Licenses. There are no implied licenses. There is no license to source code for dotin’s proprietary Services.
2.3. Limitations and Restrictions. Customer will not cause the Service to:
2.5. Security and Privacy. dotin utilizes commercially reasonable security controls and privacy practices to protect Customer Data. If Customer Data is disclosed to or accessed by an unauthorized party, dotin shall promptly notify Customer and use reasonable efforts to cooperate with Customer’s investigation of the incident.
2.6. No Responsibility for Backups. dotin will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable.
2.7. Customer System Requirements.Unless as otherwise specified in an Order, Customer is solely responsible for providing its own infrastructure including all necessary hardware and software to access and use the Service.
2.8. Ownership. Rights in the Service and Documentation are solely as set forth in this Section 2 and include no rights of ownership. Customer agrees that, as between Customer and dotin, dotin owns all rights, title and interest (including and without limitation all Intellectual Property Rights) in the Service, including APIs, and Documentation, and all modifications or improvements thereto, whether or not created by dotin. dotin owns all rights to error reports, corrections, and information related to the Service learned through any testing. Customer owns all Customer Data provided to dotin.
3. ACCOUNT ACTIVITY RESPONSIBILITY3.1. Customer Accounts. Customer may register for the Service and create an account to access the Service (“Customer Account”). Customer may not establish more than one Customer Account for the same entity without dotin’s written consent. dotin may restrict or terminate access to a Customer Account should it reasonably believe that the account is not being used in compliance with the terms of this Agreement.
3.2. System Access. Customer authorizes dotin to act as Customer’s agent. The scope of the agency is to: (a) store Customer’s Customer Data relating to such system, services or Third Party Sites; (b) access such system, services or Third Party Sites using Customer Data Customer provides us; (c) use any materials Customer provide us to provide Customer the Service; (d) Extract from such system, services or Third Party Sites data reasonably necessary for us to provide the Service to Customer ; and (e) otherwise take any action for such system, services or Third Party Sites as is reasonably necessary for us to provide the Service to Customer.
4. ORDERS, SUBSCRIPTION FEES, PAYMENTS4.1. Orders. Customer shall submit an Order to dotin to obtain the Services. When accepted by dotin, the Order is subject to this Agreement. Fees and invoicing are as stated in the Order. All fees are in US dollars. Except as provided in this Agreement, all fees are non-refundable and no Order or SOW may be cancelled.
4.2. dotin Service. All Subscription Fees for the Service are fixed for the Subscription Period stated on the Order or SOW. dotin may modify its fees for any future Orders or renewals.
4.3. Fees for Professional Services. For Professional Services as specified in an Order or SOW, fees for such services performed shall be invoiced as provided in the Order or SOW.
4.4. Expense Reimbursement. Customer agrees to reimburse dotin for actual out-of-pocket expenses pre-approved in writing by Customer, including but not limited to expenses for travel and lodging, reasonably incurred by dotin in performance of its obligations, for which Customer agrees to pay the amount due within thirty (30) calendar days of applicable invoice setting forth the expenses incurred (“Due Date”).
4.5. Payment Terms. Except as provided in an Order or SOW, Customer agrees to pay invoices within 10 days of date of invoice. Any amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate allowed by law.
4.6. Taxes. Customer is solely responsible for the payment of all taxes (other than taxes based on dotin’s income), fees, duties and other governmental charges, and any related penalties and interest, arising from the payment of fees to dotin under this Agreement for the delivery or license of products. Customer will make all payments of fees to dotin free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to dotin will be Customer’s sole responsibility, and Customer will provide official receipts issued by the appropriate taxing authority, or such other evidence as dotin may reasonably request, to establish that such taxes have been paid.
5. WARRANTIES5.1. Mutual Warranties. Each party represents and warrants it has the full corporate power and authority to enter into this Agreement and that its performance under this Agreement will not conflict with any other agreements to which such party is a party.
5.2. By dotin
6. SERVICE SUPPORT AND UPDATESSupport and Updates. dotin will provide support and Update services for the dotin Service to Customer during the Subscription Period.
7. MARKETING AND ADVERTISING7.1. Joint Press Release. dotin may issue a press release announcing the relationship within thirty (30) calendar days of the Effective Date. dotin may list Customer as a customer in its marketing collateral and website.
7.2. Trademarks. Each party is granted the right to display the name, logos, service marks, trademarks of the other party on its Web site, and to describe the parties' business relationship on its Web site.
8. CONFIDENTIAL INFORMATION8.1. Confidential Information. During this Agreement, each party may disclose to the other certain nonpublic or proprietary information or materials relating to a party's products, technology, business or marketing, which it wishes the other party to treat as confidential ("Confidential Information"). Confidential Information includes all such information marked as "Confidential" or "Proprietary" at the time of disclosure, or if disclosed orally, its confidential nature is confirmed in writing within thirty (30) calendar days of disclosure. Customer agrees that notwithstanding any failure to so specify, Service, and Documentation will be deemed Confidential Information of dotin. Notwithstanding the foregoing, Confidential Information does not include, and nothing in this Agreement will prohibit or limit either party's use of, information (including but not limited to ideas, concepts, know-how, techniques, and methodologies) that: (a) is or becomes publicly available through no breach by the receiving party of this Agreement; (b) was previously known to the receiving party prior to disclosure, as evidenced by contemporaneous written records; or (c) was acquired from a third party with no breach of any obligation of confidentiality. Notwithstanding the foregoing, the receiving party shall not violate this Agreement regarding a disclosure in response to a valid order by a court or other governmental body or subpoena or required by applicable law or governmental regulations, provided that the receiving party provides to the disclosing party prior written notice of such disclosure.
8.2. Protection of Confidential Information. Except as provided, the receiving party will not use or disclose any Confidential Information without the disclosing party’s prior written consent, except to the receiving party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information at least as restrictive as the receiving party’s obligations under this Section 7. Besides the foregoing nondisclosure obligations, the receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party’s own confidential and proprietary information and trade secrets, and in no event less than reasonable care. The receiving party will, at its option, destroy or return all Confidential Information upon termination of this Agreement.
8.3. Equitable Remedy. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages if any unauthorized use occurs or disclosure of its Confidential Information. Besides any other remedies that may be available in law, in equity or otherwise, the disclosing party will may seek injunctive relief to prevent such unauthorized use or disclosure.
9. INDEMNIFICATION9.1. By dotin.
10. LIMITATION OF LIABILITYIn no event will either party be liable to the other for the cost of procurement of substitute goods or technology, loss of profits, or for any special, consequential, incidental, punitive or indirect damages on any theory of liability, whether in contract, tort, strict liability or otherwise, even if a party has been advised of the possibility of such damages. dotin’s total liability under this Agreement or for breach thereof, will not exceed the total amounts paid or payable to dotin hereunder during the twelve (12) months prior to the date such claim arises out of an applicable Order. The foregoing limitations will apply notwithstanding the failure of essential purpose of any limited remedy, but will not limit liability for death or bodily injury, or misuse of intellectual property.
11. SUBSCRIPTION PERIOD AND TERMINATION11.1. Term of Agreement. This Agreement is effective as of the Effective Date and will continue for as long as an Order is in effect, unless earlier terminated under Section 11.2. The Subscription Period will be for a period of time specified in an Order. Orders will be automatically renewed and your credit card account (or other payment method account) will be charged as follows without further authorization from you: (a) every month for monthly subscriptions; (b) upon every one (1) year anniversary for annual subscriptions; (c) such other periodic rate you have selected from among the options offered on the Service or agreed in an order at the then current rates, unless terminated with thirty (30) days prior written notice at the end of the renewal periods.
11.2. Termination for Cause. Either party may terminate this Agreement, upon thirty (30) days (or immediately for nonpayment) written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3. Effect of Termination. Upon any termination of this Agreement for any reason, all licenses granted under this Agreement shall terminate immediately. Customer may backup and retain Reports created before termination. Upon termination dotin may delete all Customer Data, Reports, Downloads, and Extracts on the Customer Account. All amounts due under an Order or SOW shall be paid upon termination unless termination is for dotin's uncured breach.
11.4. Survival. Sections 2.2, 2.3, 2.4, 2.6, 2.8, 5.3, 8, 9, 10, 11,12 and any payment obligations, will survive termination of this Agreement.
12. GENERAL12.1. No Partnership. Nothing in this Agreement is to be construed as creating a partnership, or joint venture relationship between dotin and Customer. dotin is an independent contractor, who will perform the Services as Customer’s agent. Neither dotin nor dotin's employees are, or shall be deemed for any purpose to be, employees of Customer. Customer shall not be responsible to dotin, dotin's employees or any governing body for any payroll related taxes related to the performance of the Services.
12.2. Entire Agreement. This Agreement represents the entire agreement between dotin and Customer and will supersede all prior agreements and communications of the parties, oral or written.
12.3. Amendment and Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default.
12.4. Governing Law and Jurisdiction. This Agreement will be governed by and interpreted under the laws of the State of California without regard to the conflicts of laws principles thereof. All disputes arising out of or related to this Agreement will be resolved through binding arbitration through JAMS’ expedited procedures. The arbitration will be held in Santa Clara County. The parties consent to such jurisdiction and venue. The award of the arbitrator may be confirmed in any court of competent jurisdiction. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement. The prevailing party shall recover its arbitration fees, and reasonable attorney’s fees in any arbitration or other action arising under this Agreement.
12.5. Successors and Assigns. his Agreement and the licenses granted may not be assigned by either party, by operation of law or otherwise, without the prior written consent of the non-assigning party. Notwithstanding the foregoing, either party may assign this Agreement to a successor in a merger, acquisition or other consolidation including, without limitation, the sale of all or substantially all of its stock or assets. This Agreement will bind upon, and inure to the benefit of, the permitted successors and assigns of each party. Any purported assignment in violation of this Section will be null and void.
12.6. Notices. All notices, requests, consents and other communications required or permitted will be in writing, and will be delivered to Customer by email registered at the Customer Account and for dotin 1) registered U.S. mail, postage prepaid (effective three (3) business days after mailing) 2) sent by facsimile or electronic mail, with a confirmation copy simultaneously sent by U.S. mail, postage prepaid (effective upon transmission) 3) or overnight delivery with commercial carrier (effective upon delivery), at dotin’s address listed on the contact page at https://dotin.us/contact.
12.7. Severability. If any provision is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will affect no other provisions of this Agreement, and such provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed.
12.8. Headings. The section headings in this Agreement are included for convenience only, and will not limit or otherwise affect the terms of this Agreement.
12.9. Counterparts. This Agreement may be executed in two counterparts, both of which taken together will constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission.
12.10. Force Majeure. Neither party will be responsible for any delay or nonperformance of its obligations under this Agreement (except for payment obligations) to the extent caused by fire, war, riots, strikes, power surges or failure, labor disputes, acts of God, failure of subcontractors or their services or other causes beyond the reasonable control of the nonperforming party.
12.11. Basis of Bargain. Each party agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material, bargained for provisions of this Agreement and that fees and consideration payable reflects these disclaimers and limitations.
Welcome to MindMetriks. Unless you have licensed the use of our software in a separate agreement signed by us, these Terms of Service govern your use of this website and the software and services made available here. To access the Service, users must at all times agree to and abide by these Terms of Service. The Service allows you to submit, store, and access certain business data and other information related to you, your customers, or your business.
This Terms of Service for the Service is a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age or a single company, organization, or entity (“Customer“) and dotin regarding your use of the Service.
By registering for and/or accessing, browsing, using or subscribing to the Service, or by clicking “I Agree,” or otherwise affirmatively manifesting your intent to be bound by these Terms of Service, you signify that you have read, understood, and agree to be bound by the following terms.
In consideration for the mutual promises and obligations set forth below, the parties agree:
1. DEFINITIONS“APIs” means the dotin APIs: http://api-doc.dotin.us/ and other APIs configured by dotin under an Order or SOW.
“Customer Data” means Confidential Information provided by Customer that may be used to operate the Service or may be stored on the Service.
“Download” means each image or file or data download on the Service for Customer.
“Extract” means using the Service to access publicly available information and/or Customer Data for Customer’s purposes.
“Documentation” means the published and released documentation, updates, electronic files, and manuals for the Service.
“Intellectual Property Rights” means all rights in trade secrets, patents, copyrights, trademarks, service marks, trade names, know-how or other intellectual property or proprietary rights, current or future, under the laws of any jurisdiction, with all applications therefore and registration thereto.
“Order” means an order for Service(s) placed by Customer through the dotin website for IPORTIO’s standard offering or an order that references these terms of service.
“Queries/URL” means the number of URLs used to obtain the Download and the number of times each URL is accessed to obtain the Download as stated in the plan identified in the Order or SOW.
“Report” means a report based on Downloads created from the Services.
“Service(s)” means the dotin software as a service including rights to use APIs, Professional Services, and any other product, license or services listed in an Order or SOW.
“Statement of Work or SOW” written order for Professional Service(s) signed by each party.
“Subscription Fees” means the fees Customer pays for the Services.
“Subscription Period” means the time period Customer may use the Services as stated in the Order or SOW.
“Subscription Plan Level” means the level of Services Customer subscribes to in an Order or SOW.
“Professional Services” means training, implementation or configuration services when specified in an SOW. The SOW shall set forth any fees and additional terms applicable for such professional services.
“Third Party Sites” means websites owned or operated by third parties.
“Update” means any new release, bug fix, workaround, modification, patch, patch bundle or hot fix to the Service. Updates shall not include any option or product which dotin licenses separately or offers to other customers for an additional fee, or any upgrade in features, functionality or performance of the Service which dotin licenses separately or offers for an additional fee.
2. SUBSCRIPTION RIGHTS2.1. Service License Grant to Use dotin. dotin grants, during the Subscription Period, Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Service according to the features, and volumes determined by the Subscription Plan Level
2.2. No Implied or Source Code Licenses. There are no implied licenses. There is no license to source code for dotin’s proprietary Services.
2.3. Limitations and Restrictions. Customer will not cause the Service to:
- (1) copy, modify or create any derivative works of the Service (or any portion thereof); (2) disassemble, reverse assemble, decompile, reverse engineer or otherwise attempt to derive the source code, the underlying ideas, algorithms, structure or organization of the Service; (3) assign, transfer, lease, sublicense provide services to third parties using the Service, rent or redistribute the Service; or (4) authorize or permit any other third party to do any of the foregoing;
- Cause the Service in any manner that in dotin’s sole discretion could damage, disable, overburden, or impair the Service;
- Attempt to gain unauthorized access to the Service, or any part, other customer accounts, computer systems or networks connected to the Service, or any part, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service.
- Share dotin-issued passwords with any third party;
- Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any content accessible through the Service or Service, or features that enforce limitations on the Service including, without limitation, creating multiple accounts to circumvent query limits or other restrictions;
- Violate US or International Laws or third party Intellectual Property Rights.
- Target individuals for any purpose.
- Create, obtain, or store personally identifiable information or personal data.
2.5. Security and Privacy. dotin utilizes commercially reasonable security controls and privacy practices to protect Customer Data. If Customer Data is disclosed to or accessed by an unauthorized party, dotin shall promptly notify Customer and use reasonable efforts to cooperate with Customer’s investigation of the incident.
2.6. No Responsibility for Backups. dotin will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable.
2.7. Customer System Requirements.Unless as otherwise specified in an Order, Customer is solely responsible for providing its own infrastructure including all necessary hardware and software to access and use the Service.
2.8. Ownership. Rights in the Service and Documentation are solely as set forth in this Section 2 and include no rights of ownership. Customer agrees that, as between Customer and dotin, dotin owns all rights, title and interest (including and without limitation all Intellectual Property Rights) in the Service, including APIs, and Documentation, and all modifications or improvements thereto, whether or not created by dotin. dotin owns all rights to error reports, corrections, and information related to the Service learned through any testing. Customer owns all Customer Data provided to dotin.
3. ACCOUNT ACTIVITY RESPONSIBILITY3.1. Customer Accounts. Customer may register for the Service and create an account to access the Service (“Customer Account”). Customer may not establish more than one Customer Account for the same entity without dotin’s written consent. dotin may restrict or terminate access to a Customer Account should it reasonably believe that the account is not being used in compliance with the terms of this Agreement.
3.2. System Access. Customer authorizes dotin to act as Customer’s agent. The scope of the agency is to: (a) store Customer’s Customer Data relating to such system, services or Third Party Sites; (b) access such system, services or Third Party Sites using Customer Data Customer provides us; (c) use any materials Customer provide us to provide Customer the Service; (d) Extract from such system, services or Third Party Sites data reasonably necessary for us to provide the Service to Customer ; and (e) otherwise take any action for such system, services or Third Party Sites as is reasonably necessary for us to provide the Service to Customer.
4. ORDERS, SUBSCRIPTION FEES, PAYMENTS4.1. Orders. Customer shall submit an Order to dotin to obtain the Services. When accepted by dotin, the Order is subject to this Agreement. Fees and invoicing are as stated in the Order. All fees are in US dollars. Except as provided in this Agreement, all fees are non-refundable and no Order or SOW may be cancelled.
4.2. dotin Service. All Subscription Fees for the Service are fixed for the Subscription Period stated on the Order or SOW. dotin may modify its fees for any future Orders or renewals.
4.3. Fees for Professional Services. For Professional Services as specified in an Order or SOW, fees for such services performed shall be invoiced as provided in the Order or SOW.
4.4. Expense Reimbursement. Customer agrees to reimburse dotin for actual out-of-pocket expenses pre-approved in writing by Customer, including but not limited to expenses for travel and lodging, reasonably incurred by dotin in performance of its obligations, for which Customer agrees to pay the amount due within thirty (30) calendar days of applicable invoice setting forth the expenses incurred (“Due Date”).
4.5. Payment Terms. Except as provided in an Order or SOW, Customer agrees to pay invoices within 10 days of date of invoice. Any amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate allowed by law.
4.6. Taxes. Customer is solely responsible for the payment of all taxes (other than taxes based on dotin’s income), fees, duties and other governmental charges, and any related penalties and interest, arising from the payment of fees to dotin under this Agreement for the delivery or license of products. Customer will make all payments of fees to dotin free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to dotin will be Customer’s sole responsibility, and Customer will provide official receipts issued by the appropriate taxing authority, or such other evidence as dotin may reasonably request, to establish that such taxes have been paid.
5. WARRANTIES5.1. Mutual Warranties. Each party represents and warrants it has the full corporate power and authority to enter into this Agreement and that its performance under this Agreement will not conflict with any other agreements to which such party is a party.
5.2. By dotin
- dotin Service. dotin warrants that during the Subscription Period the Service will perform substantially under the specifications in the Documentation.
- Professional services. dotin warrants that each of the resources assigned to perform professional services under this agreement shall have the proper skill, training and background to perform in a competent and professional manner.
- Personal Data. Customer warrants that it has obtained all necessary consents and lawful basis for processing of any personal data Customer transmits or otherwise provided to dotin.
6. SERVICE SUPPORT AND UPDATESSupport and Updates. dotin will provide support and Update services for the dotin Service to Customer during the Subscription Period.
7. MARKETING AND ADVERTISING7.1. Joint Press Release. dotin may issue a press release announcing the relationship within thirty (30) calendar days of the Effective Date. dotin may list Customer as a customer in its marketing collateral and website.
7.2. Trademarks. Each party is granted the right to display the name, logos, service marks, trademarks of the other party on its Web site, and to describe the parties' business relationship on its Web site.
8. CONFIDENTIAL INFORMATION8.1. Confidential Information. During this Agreement, each party may disclose to the other certain nonpublic or proprietary information or materials relating to a party's products, technology, business or marketing, which it wishes the other party to treat as confidential ("Confidential Information"). Confidential Information includes all such information marked as "Confidential" or "Proprietary" at the time of disclosure, or if disclosed orally, its confidential nature is confirmed in writing within thirty (30) calendar days of disclosure. Customer agrees that notwithstanding any failure to so specify, Service, and Documentation will be deemed Confidential Information of dotin. Notwithstanding the foregoing, Confidential Information does not include, and nothing in this Agreement will prohibit or limit either party's use of, information (including but not limited to ideas, concepts, know-how, techniques, and methodologies) that: (a) is or becomes publicly available through no breach by the receiving party of this Agreement; (b) was previously known to the receiving party prior to disclosure, as evidenced by contemporaneous written records; or (c) was acquired from a third party with no breach of any obligation of confidentiality. Notwithstanding the foregoing, the receiving party shall not violate this Agreement regarding a disclosure in response to a valid order by a court or other governmental body or subpoena or required by applicable law or governmental regulations, provided that the receiving party provides to the disclosing party prior written notice of such disclosure.
8.2. Protection of Confidential Information. Except as provided, the receiving party will not use or disclose any Confidential Information without the disclosing party’s prior written consent, except to the receiving party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information at least as restrictive as the receiving party’s obligations under this Section 7. Besides the foregoing nondisclosure obligations, the receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party’s own confidential and proprietary information and trade secrets, and in no event less than reasonable care. The receiving party will, at its option, destroy or return all Confidential Information upon termination of this Agreement.
8.3. Equitable Remedy. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages if any unauthorized use occurs or disclosure of its Confidential Information. Besides any other remedies that may be available in law, in equity or otherwise, the disclosing party will may seek injunctive relief to prevent such unauthorized use or disclosure.
9. INDEMNIFICATION9.1. By dotin.
- Indemnity. dotin will indemnify, defend and hold Customer harmless from liabilities, losses and damages finally awarded by a court of competent jurisdiction, based on a third-party claim that dotin’s proprietary software infringes the intellectual property rights of a third party; provided that such indemnity shall not apply if the alleged infringement results from (a) use of the Service in violation of the terms of this Agreement; or (b) unlicensed activities. dotin may control fully the defense and any settlement of such third-party claim if such settlement shall not include a financial obligation on Customer or implicate Customer in any alleged infringement action. Customer shall cooperate fully in the defense of such third-party claim and may appear, at Customer’s own expense, through counsel reasonably acceptable to dotin. Customer shall undertake no action in response to any infringement or alleged infringement of the software. dotin may settle any third-party claim requiring dotin to substitute for the software alternative substantially equivalent non-infringing programs.
- Options. If any part of the Service becomes, or in the opinion of dotin may become, the subject of an injunction, dotin may, at its option: (i) procure for Customer the right to use the Service free of any liability; (ii) replace or modify such Service to make it non-infringing; or (iii) if neither (i) or (ii) is commercially feasible, to terminate this Agreement and refund to Customer the unused fees paid by Customer for the Service.
- Customer Requirements for Indemnification. dotin will not be liable for any costs or expenses incurred by Customer for any claim of infringement unless (i) promptly notifies dotin in writing of any such third-party claim and (ii) Customer provides dotin with reasonable assistance in the defense and settlement; and (iii) Customer receives from dotin prior written authorization to pay such costs. The foregoing states the sole and exclusive liability of dotin for any infringement of Intellectual Property Rights.
10. LIMITATION OF LIABILITYIn no event will either party be liable to the other for the cost of procurement of substitute goods or technology, loss of profits, or for any special, consequential, incidental, punitive or indirect damages on any theory of liability, whether in contract, tort, strict liability or otherwise, even if a party has been advised of the possibility of such damages. dotin’s total liability under this Agreement or for breach thereof, will not exceed the total amounts paid or payable to dotin hereunder during the twelve (12) months prior to the date such claim arises out of an applicable Order. The foregoing limitations will apply notwithstanding the failure of essential purpose of any limited remedy, but will not limit liability for death or bodily injury, or misuse of intellectual property.
11. SUBSCRIPTION PERIOD AND TERMINATION11.1. Term of Agreement. This Agreement is effective as of the Effective Date and will continue for as long as an Order is in effect, unless earlier terminated under Section 11.2. The Subscription Period will be for a period of time specified in an Order. Orders will be automatically renewed and your credit card account (or other payment method account) will be charged as follows without further authorization from you: (a) every month for monthly subscriptions; (b) upon every one (1) year anniversary for annual subscriptions; (c) such other periodic rate you have selected from among the options offered on the Service or agreed in an order at the then current rates, unless terminated with thirty (30) days prior written notice at the end of the renewal periods.
11.2. Termination for Cause. Either party may terminate this Agreement, upon thirty (30) days (or immediately for nonpayment) written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3. Effect of Termination. Upon any termination of this Agreement for any reason, all licenses granted under this Agreement shall terminate immediately. Customer may backup and retain Reports created before termination. Upon termination dotin may delete all Customer Data, Reports, Downloads, and Extracts on the Customer Account. All amounts due under an Order or SOW shall be paid upon termination unless termination is for dotin's uncured breach.
11.4. Survival. Sections 2.2, 2.3, 2.4, 2.6, 2.8, 5.3, 8, 9, 10, 11,12 and any payment obligations, will survive termination of this Agreement.
12. GENERAL12.1. No Partnership. Nothing in this Agreement is to be construed as creating a partnership, or joint venture relationship between dotin and Customer. dotin is an independent contractor, who will perform the Services as Customer’s agent. Neither dotin nor dotin's employees are, or shall be deemed for any purpose to be, employees of Customer. Customer shall not be responsible to dotin, dotin's employees or any governing body for any payroll related taxes related to the performance of the Services.
12.2. Entire Agreement. This Agreement represents the entire agreement between dotin and Customer and will supersede all prior agreements and communications of the parties, oral or written.
12.3. Amendment and Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default.
12.4. Governing Law and Jurisdiction. This Agreement will be governed by and interpreted under the laws of the State of California without regard to the conflicts of laws principles thereof. All disputes arising out of or related to this Agreement will be resolved through binding arbitration through JAMS’ expedited procedures. The arbitration will be held in Santa Clara County. The parties consent to such jurisdiction and venue. The award of the arbitrator may be confirmed in any court of competent jurisdiction. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement. The prevailing party shall recover its arbitration fees, and reasonable attorney’s fees in any arbitration or other action arising under this Agreement.
12.5. Successors and Assigns. his Agreement and the licenses granted may not be assigned by either party, by operation of law or otherwise, without the prior written consent of the non-assigning party. Notwithstanding the foregoing, either party may assign this Agreement to a successor in a merger, acquisition or other consolidation including, without limitation, the sale of all or substantially all of its stock or assets. This Agreement will bind upon, and inure to the benefit of, the permitted successors and assigns of each party. Any purported assignment in violation of this Section will be null and void.
12.6. Notices. All notices, requests, consents and other communications required or permitted will be in writing, and will be delivered to Customer by email registered at the Customer Account and for dotin 1) registered U.S. mail, postage prepaid (effective three (3) business days after mailing) 2) sent by facsimile or electronic mail, with a confirmation copy simultaneously sent by U.S. mail, postage prepaid (effective upon transmission) 3) or overnight delivery with commercial carrier (effective upon delivery), at dotin’s address listed on the contact page at https://dotin.us/contact.
12.7. Severability. If any provision is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will affect no other provisions of this Agreement, and such provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed.
12.8. Headings. The section headings in this Agreement are included for convenience only, and will not limit or otherwise affect the terms of this Agreement.
12.9. Counterparts. This Agreement may be executed in two counterparts, both of which taken together will constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission.
12.10. Force Majeure. Neither party will be responsible for any delay or nonperformance of its obligations under this Agreement (except for payment obligations) to the extent caused by fire, war, riots, strikes, power surges or failure, labor disputes, acts of God, failure of subcontractors or their services or other causes beyond the reasonable control of the nonperforming party.
12.11. Basis of Bargain. Each party agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material, bargained for provisions of this Agreement and that fees and consideration payable reflects these disclaimers and limitations.
