Maintaingo Terms of Service Agreement
This Maintaingo Terms of Service Agreement (“Agreement”) constitutes a binding legal agreement between You and DeLapp Design, Inc. (“We,” “Us,” or “Our”), which operates the Maintaingo.com web site (the “Site”) and provides the tools, resources, products, online accounts, and services offered in association with the Site (the “Services”). By visiting the Site and/or using or accessing any Service, You accept and agree to the terms of this Agreement and the Maintaingo Privacy Policy, which is incorporated as a part of this Agreement by reference. The terms “You,” “Your,” and “Yourself” shall refer to you as an individual, any company or other legal entity on behalf of which you visit, access, or use the Site or any Service, and all employees and agents of any such entity. You represent that you as an individual have the authority to bind Yourself to this Agreement. This Agreement is maintained independently of any other agreement that may exist between You and Us.
If You do not agree to the terms of this Agreement, You must not visit, access, or otherwise use the Site or any Service. We reserve the right to modify this Agreement from time to time, and Your continued visitation, access, or other use of the Site or any Service represents Your agreement to any such modifications.
This Agreement was last updated on August 4, 2016.
1. Prohibited Uses
1.1 You agree to use the Site and Services only for purposes permitted under this Agreement, all applicable laws, regulations, and ordinances, and generally accepted online practices.
1.2 You agree that You will not (a) make any Service available to anyone other than You, (b) sell, resell, rent, or lease the Site, any Service, or any portion thereof, (c) use the Site or any Service to store, transmit, or otherwise use any material that is or was obtained in a manner that is infringing, libelous, tortious, or otherwise unlawful, or that is threatening, abusive, harassing, degrading, intimidating, fraudulent, deceptive, invasive, or inappropriate, as determined in Our sole discretion, (d) use the Site or any Service to directly or indirectly store or transmit viruses, Trojans, bots, worms, malware, or any other malicious code, (e) interfere with or disrupt the integrity or performance of the Site, any Service, or any portion thereof, or of Our or any third-party’s data contained, stored, or transmitted in or through the Site or any Service, (f) attempt to gain access to the Site, any Service, or any related system or network other than through the means We provide, (g) copy, modify, or prepare any derivative work based on the Site, any Service, or any portion thereof, (h) copy, frame, or mirror the Site, any Service, or any portion thereof, and/or (i) visit, access, or use the Site or any Service for the purpose of competing with Us.
1.3 You may not visit, copy, access, or use the Site or Services if You are Our direct competitor, for any purpose, without Our prior written consent.
1.4 We have the right, but not the obligation, to remove any content from the Site that does not comply with this Agreement or is otherwise objectionable in Our sole discretion.
2. Your Responsibilities
2.1 You are responsible for ensuring Your compliance with this Agreement.
2.2 You are responsible for promptly providing all information necessary, appropriate, or requested by Us for the purpose of creating and administering Your account and any Subscription and/or providing the Site and Services to You, and for ensuring that all information, directions, requests, work orders, and content You provide to Us are accurate, up-to-date, lawful, and authorized by You and any other entity whose authorization may be necessary. For example, and without limitation, such information may include credit card or other payment information, identification information, and login and password information for Your web sites, domain names, networks, or associated accounts. As part of the account set-up procedure and from time to time, We may request that You provide one or more email addresses, phone numbers, or other authorized means of communication between You and Us (“Authorized Contacts”). You agree that We are entitled to rely on any instructions, requests, or other information provided to Us through such Authorized Contacts. You shall notify Us immediately if You become aware of any unauthorized or inaccurate instruction, request, or other information provided to Us through any Authorized Contact, or any other unauthorized use of an Authorized Contact.
2.3 As part of the account set-up procedure, and from time to time, We may provide or You may select login and password information that You may use to gain authorized access to the Site and/or the Services. You are responsible for maintaining the confidentiality of all such login and password information associated with Your account and for all actions undertaken using Your login and password information. You agree that We are entitled to rely on any instructions, requests, or other information provided to Us by any entity using Your login and password. You shall notify Us immediately if You become aware of any unauthorized access to or use of Your login and password information.
2.4 You are responsible for all consequences, losses, or damages that We may directly or indirectly incur or suffer due to any unauthorized actions undertaken by You, any entity using Your Authorized Contacts, or Your login and password information.
3. Maintaingo Services
3.1. Unless otherwise agreed in writing, We provide the Services in accordance with subscription plans (“Subscription(s)”) paid on a monthly or annual basis and assigned to Your account. Once You have created an account with Us and purchased a Subscription, Your account will accrue a certain number of minutes per month, which may be applied to time that We spend providing Services in accordance with the terms of Your Subscription. The number of monthly minutes, range of Services offered, monthly or annual pricing, and hourly overage pricing terms associated with the various Subscription options that We offer are described at http://staging4.maintaingo.com/pricing-plans/. Each Subscription must be associated with a single specific web site or domain name. However, if You purchase more than one Subscription, the minutes that accrue to Your account from one Subscription may be applied to Services related to any web site or domain name associated with any of Your other Subscriptions. We are not obligated to provide any Services in relation to any web site or domain name that are outside the scope of those Services included in Your Subscription for such web site or domain name. In any event, all time that We spend providing Services in connection with Your account will be accounted for in one (1) minute increments.
3.2 Minutes that You do not apply to Services in the month that they accrue to Your account will “roll over” and be available for Your use in subsequent months. Minutes will be applied to Services on a “first accrued” basis, so that remaining minutes accrued to Your account in earlier months will be applied prior to more recently accrued minutes. Notwithstanding the foregoing, upon termination of a Subscription, all minutes associated with that Subscription will expire, and will no longer be available for You to apply to Services. Similarly, minutes that are not applied to Services within twelve (12) months of accrual to Your account will expire, and will no longer be available for You to apply to Services. On a case-by-case basis, upon renewal of a terminated Subscription, We may, in Our sole discretion, elect to reactivate minutes that previously expired due to termination of the Subscription. If at any time Your account has no remaining minutes accrued to it, We are not obligated to spend any time providing any Services on Your behalf. However, if We elect to provide Services to You in excess of the number of minutes accrued to Your account, all time that We spend providing Services in excess of the minutes accrued to Your account will be billed at the rate provided for in Your Subscription plan.
3.3 Upon signing up for Your Subscription, We will provide written notice to You through Your account and/or an Authorized Contact confirming the nature of the Services and the pricing associated with such Subscription. You agree that You will contact Us immediately if You believe any details in such confirmation notice are inaccurate, and Your use of the Services after receipt of such confirmation constitutes Your acknowledgment and agreement to the details of Your Subscription as set forth in such written confirmation.
3.4 Conditioned on Your compliance with this Agreement, creation of an account with Us, and purchase of a Subscription, We shall make the Services available to You in accordance with the terms of this Agreement and Your Subscription plan for so long as Your Subscription remains active.
3.5 From time to time We may make available to You through Your account, an Authorized Contact, or otherwise reports describing the Services. If You object to any action described in such reports, You shall promptly contact Us to discuss such action. Failure to do so within ten (10) calendar days of such a report being made available to You shall be deemed approval of all actions described in such report.
3.6. We reserve the right to modify the Site, the Services, Subscription plans, and pricing that We provide at any time. We will maintain an up-to-date description of the Subscription plans that We offer via the http://staging4.maintaingo.com/pricing-plans/ web page or a similar page of the Maintaingo.com web site. We may also endeavor to notify You of any Service, Subscription, or pricing changes through Your account, an Authorized Contact, or otherwise. Your continued visitation, access, or use of the Site or the Services after any modifications have been posted to the http://staging4.maintaingo.com/pricing-plans/ web page or otherwise made available to You shall constitute Your agreement to all such modifications. If You do not consent to any modification, Your sole remedy shall be to terminate Your Subscription(s). You agree that Your Subscriptions and other purchases made in connection with this Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
4. Fees and Payment
4.1. You agree to pay Us all fees, charges, and expenses billed in accordance with this Agreement. In the case of Subscription fees or other recurring fees, You agree to pay Us such fees in advance on the 1st day of each monthly term in the case of recurring monthly fees, and on the first day of the applicable annual term in the case of recurring annual fees. In the case of all other fees, charges, or expenses, You agree to Pay Us in full within thirty (30) days of invoicing. Except as otherwise provided herein, all payment obligations are non-cancelable and fees are non-refundable. Although You may cancel Your Subscription(s) at any time, all fees associated with Your Subscription term must still be paid unless explicitly stated to the contrary herein.
4.2. Notwithstanding the foregoing, in the event (A) You terminate a Subscription that has been pre-paid on an annual basis, (B) such termination is due solely to (i) a material breach of this Agreement by Us, or (ii) a material change in the Services for which You have pre-paid on an annual basis, and (C) you notify Us of Your intent to terminate such Subscription within ten (10) business days of receiving actual or constructive notice of the alleged material breach or material change in Service, We will offer a pro-rata refund of such pre-paid annual Subscription fee to be calculated based on the number of days that have elapsed since beginning of the pre-paid annual Subscription term.
4.3. In the course of creating an account with Us, You must provide Us with valid credit card information, and You agree to continually maintain and update such information. You authorize Us to charge from time to time Your credit card and any other payment method, mechanism, or account You have identified for any charge, fee, or expense You owe to Us in connection with the Site, the Services, or this Agreement.
4.4 If any charges are not received from You by the due date, then at Our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid.
4.5 If any amount owing by You to Us is ten (10) or more calendar days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend provision of Services to You until such amounts are paid in full. We will give You at least seven (7) calendar days’ prior written notice that Your account is overdue before suspending provision of Services to You.
4.6 Unless otherwise stated, Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases under this Agreement. In the event We have a legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Third-Party Products & Services
5.1 From time to time, We and/or third parties may make products or services available to You that are created, operated, and/or provided by third parties (“Third-Party Services”). Any use of Third-Party Services or exchange of data with third parties in relation to Third-Party Services is solely as agreed between You and such third party or parties. We do not warrant or support Third-Party Services, even if We make such Third-Party Services available to You in whole or in part.
5.2. If You install, enable, use, or authorize the installation, enablement, or use of any Third-Party Service in conjunction with the Site or Services, or any web site or domain name associated with Your Subscription or Your account with Us, You acknowledge that We may enable the Third-Party Service to access information provided or stored in connection with the Site, the Service, or any web site or domain name associated with Your Subscription or Your account with Us, as required for interoperation between the Third-Party Service and the Site and/or Services. We shall not be responsible under this Agreement for any disclosure, modification, or deletion of any such information resulting from such access.
6. Confidentiality.
We and You agree to hold each other’s Confidential Information in strict confidence. “Confidential Information” shall include, but is not limited to, contractual agreements and terms, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, and financial information. Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; or (iii) is independently developed by the receiving party as shown by documentary evidence. Except as otherwise stated herein, We and You agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than as necessary or appropriate to carry out the terms and purpose of this Agreement. In the event of use or disclosure of Confidential Information other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding the foregoing, We or You may disclose Confidential Information as required by law. In the event a receiving party believes it is legally obligated to disclose any Confidential Information, it shall promptly notify the disclosing party in writing of the subpoena, request, demand, or basis for such belief, so that the disclosing party may seek an appropriate protective order or take other protective measures.
7. Limited Warranties and Disclaimers
7.1 We warrant that We have validly entered into this Agreement and have the legal power to do so. You warrant that You have validly entered into this Agreement and have the legal power to do so.
7.2 THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY US. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SITE AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR NEEDS OR EXPECTATIONS, THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERRORS, THAT ANY INFORMATION YOU OBTAIN THROUGH THE SITE OR SERVICES WILL BE ACCURATE OR RELIABLE, OR THAT ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SITE OR ANY SERVICES WILL BE REPARED OR CORRECTED. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Limitation of Liability
8.1 You agree and acknowledge that the nature, quality, and ability to use and access the Site and the Services is dependent in whole or in part on the actions of internet service providers, web hosts, and other third parties, and that We are not responsible or liable for any damage, loss, or consequence resulting in whole or in part from actions or inaction of You or any third parties.
8.2 You understand and agree that interruptions in the availability of the Site and the Service may occur. Interruptions may be due to scheduled maintenance, malicious software, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, or other causes. You agree that We will not be held liable for any damage, loss, or consequence resulting in whole or in part from any such interruption.
8.3 You understand and agree that We are not liable for any content posted to the Site by You or third parties, nor are We liable for any decision to remove or not to remove such content, nor for any delay or failure in removing such content. If You post content to the Site that We choose to remove, You hereby consent to such removal, and consent to waive any claim against Us arising in whole or in part from such removal.
8.4 IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS ARISING IN CONNECTION WITH THIS AGREEMENT, THE SITE, OR THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN ANY EVENT, NEITHER YOUR NOR OUR LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL YOUR OR OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4, YOUR LIABILITY FOR COSTS AND ATTORNEY FEES UNDER SECTION 12.2, OR YOUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 14. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, BUT SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Copyrights, Trademarks, and Proprietary Rights.
9.1 We maintain exclusive ownership of all copyright, trademark, and other intellectual property and proprietary rights in the Site, the Services, and Our Confidential Information, and nothing in this Agreement shall be deemed to transfer any such rights to You. You maintain exclusive ownership of Your copyright, trademark, and other intellectual property and proprietary rights in any content, materials, and information You may provide to Us for use in connection with the Site or Services. Notwithstanding the foregoing, You grant us a perpetual, worldwide, irrevocable, non-exclusive,, royalty-free license to reproduce, modify, adapt, translate, publish, and/or distribute any content, information, and materials You make available to Us, solely for the purpose of operating, providing, refining, modifying, and enhancing the Site and Services. With regard to Your business name(s) and any logos, trademarks, or identifying designations, You grant us a perpetual, worldwide, irrevocable, non-exclusive, royalty-free license to use such content on the Site or in other marketing materials solely for the purpose of accurately identifying You as Our client or former client. With regard to any content, information, and materials you provide to Us in connection with publicly-accessible areas or aspects of the Service (e.g., blog comments, reviews, and the like), as well as any suggestions, recommendations, enhancement requests, or other feedback You provide to Us in relation to the Site or the Services, You grant Us a perpetual, irrevocable, worldwide, royalty-free, license to use, reproduce, modify, adapt, translate, publish, publicly display and/or distribute such content and information as We see fit.
9.2 If You are a copyright owner and believe the Site has been used to infringe the copyright in Your work(s), please provide Our copyright agent a written notification including the following points:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyright-protected work(s) that You claim to have been infringed;
A description of the allegedly infringing material and where it is located on the Site, including the URL and any other identifying information where possible;
Your name, address, telephone number, and e-mail address;
A statement that You have a good-faith belief that the disputed use is not authorized by the copyright owner, the copyright owner’s agent, or the law;
A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf.
If You believe that We have removed or disabled access to material that You posted as a result of mistake or misidentification, and would like Us to replace or renew access to the material, please provide Our copyright agent a written counternotification including the following points:
An identification of the material that has been removed or disabled and the location where it appeared before it was removed or disabled, including a URL where possible.
A statement, under penalty of perjury, that You have a good-faith belief that the material was removed or disabled as a result of mistake or misidentification.
Your name, address, telephone number, and email address.
State that You consent to the jurisdiction of Federal District Court for the judicial district in which Your physical address is located (or, if the physical address is outside the United States, for the Western District of Washington).
State that You will accept service of process from the person who provided notification to Us of the alleged infringement, or from an agent of that person.
Your physical or electronic signature.
Our Copyright Agent for notice of claims of copyright infringement on the Site can be reached as follows:
DeLapp Design, Inc.
Attn: Copyright Claims
900 1st Ave S, Suite 205B
Seattle, WA 98134
Email: info@delappdesign.com
Although We value both intellectual property rights and free expression, We cannot guarantee that following the complaint or counternotification procedures identified above will result in any particular action, and We do not undertake any affirmative obligation to engage in any particular action in response to any particular complaint or counternotification.
10. Term and Termination
10.1. This Agreement commences on the date You accept it and continues until all Your Subscriptions for Services have expired or been terminated, Your account has been terminated, and You cease to visit the Site and/or use or access any Service.
10.2 You may terminate Your Account and any of Your Subscriptions at any time by providing written notice to Us. We may terminate or suspend Your Account and any of Your Subscriptions immediately at any time if We suspect that You have breached this Agreement and/or used the Site, any Service, or any portion thereof in a manner that We determine, in Our sole discretion, is otherwise inappropriate. In any event, We may suspend or terminate Your Account and any of Your Subscriptions provided We give You written notice of suspension or termination at least ten (10) calendar days prior to the suspension or termination date. Upon suspension or termination, Your right to visit, access, or use any non-public or password-protected portion or aspect of the Site or Services will immediately cease, and We reserve the right to remove or delete any information that you may have on file with Us, including any account or login information.
10.3 You acknowledge and agree that no refunds shall be given except as expressly set forth in this Agreement. In the event that We terminate any of Your Subscription(s) that have been pre-paid on an annual basis, We will offer a pro-rata refund of such pre-paid annual Subscription fee to be calculated based on the number of days that have elapsed since beginning of the pre-paid annual Subscription term only if (A) such termination is not based on good cause, including without limitation suspected breach or inappropriate use of the Site or Service as described in Section 10.2, and (B) you request such refund in writing within ten (10) business days of receiving notice of termination or Our intent to terminate. In no event shall termination of Your account, Your Subscription(s), or this Agreement relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.4 For thirty (30) calendar days after the effective date of termination of Your Subscription(s), and upon Your request, We will make available to You any usernames and passwords You provided to Us for use with Your websites, domain names, or related third-party services, unless such termination was due to Our determination that You breached this Agreement and/or used the Site, any Service, or any portion thereof in an inappropriate manner. After such 30-day period, We shall have no obligation to maintain or provide any materials, content, or information on Your behalf.
10.5 Sections 1, 2.4, 4, 5, 6, 7, 8, 9, 10, 12, 14, 15.2, 15.3, 15.5, 15.6, 15.7, 15.8, 15.9, and 15.10 shall survive any termination or expiration of this Agreement.
11. Modification of Terms
We reserve the right to modify this Agreement from time to time without notice to You. A current version of this Agreement will be made available via the http://staging4.maintaingo.com/legal web page or a similar page of the Maintaingo.com web site. You acknowledge and agree that it is Your responsibility to review this Agreement periodically to familiarize Yourself with any modifications. We may also endeavor to notify You of any modifications to this Agreement through Your account, an Authorized Contact, or otherwise. Your continued visitation, access, or use of the Site or Services after any modifications have been posted to the http://staging4.maintaingo.com/legal web page or otherwise communicated to You shall constitute Your acceptance and agreement to all such modifications. If You do not consent to any modification, Your sole remedy shall be to terminate Your account, Your Subscriptions, and to cease visiting, accessing, and using the Site and the Services.
12. Governing Law, Jurisdiction, Venue, and Remedies
12.1 This Agreement shall be governed by, construed, interpreted, and enforced in accordance with the laws of the State of Washington, without regard to its choice of law provisions. Any dispute, claim, or action arising out of or related to this Agreement shall be resolved in the state or federal courts in King County, Washington, and You agree to exclusive jurisdiction and venue therein.
12.2 In any dispute, claim, or action arising out of or related to this Agreement, the prevailing party shall be entitled to an award of costs and attorney fees incurred in obtaining relief.
13. Notice
Any notice provided for under this Agreement shall be deemed effective if and when made in writing and delivered as follows:
If to Us: by email and mail delivery to Maintaingo c/o DeLapp Design, Inc., 900 First Ave S, Suite 205B, Seattle, WA 98134; info@maintaingo.com
If to You: by electronic delivery through Your account or delivery through an Authorized Contact.
14. Indemnification
14.1 You agree to defend, indemnify, and hold harmless Us and Our agents, officers, directors, managers, shareholders, employees, and representatives from and against any and all claims, demands, suits, damages, proceedings, liabilities, losses, costs, and expenses, whether, direct, indirect or consequential, including but not limited to attorney fees, costs, and expenses incurred in connection with litigation, arbitration, or other proceedings, arising in whole or in part out of Your breach of this Agreement.
14.2 We agree to defend, indemnify, and hold harmless You and Your agents, officers, directors, managers, shareholders, employees, and representatives from and against any and all claims, demands, suits, damages, liabilities, losses, costs and expenses, whether, direct, indirect or consequential, including but not limited to attorney fees, costs, and expenses incurred in connection with litigation or arbitration, arising in out of Our breach of this Agreement.
15. General Terms
15.1 You represent that You are not named on any U.S. government denied-party list with regard to export restrictions. You shall not use or permit use of the Site or Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
15.2 The relationship between You and Use is one of independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between You and Us.
15.3 There are no third-party beneficiaries to this Agreement.
15.4 No failure or delay in exercising any right under this Agreement shall constitute a waiver of that right. No waiver of any provision of this Agreement shall be effective unless the same shall be delivered in writing, and such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
15.5 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or otherwise invalid or unenforceable, the provision shall be modified by such court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15.6 No provision of this Agreement shall be interpreted against You or against Us based on the identity of the drafter of such provision.
15.7 You may not assign this Agreement or the rights and obligations provided hereunder to any third party without Our prior express written approval. Subject to the foregoing, the provisions of the Agreement shall be binding upon and shall inure to the benefit of Your and Our heirs, administrators, personal representatives, executors, successors, and assigns.
15.8 This Agreement, together with the terms of any Subscription plan purchased by You, as described in writing provided from Us to You, constitutes the entire agreement between Us and You and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective except as set forth under this Agreement.
15.9 The titles and headings of this Agreement are solely for convenience and shall not be used to explain, modify, or aid in the interpretation of the provisions of this Agreement.
15.10 Any delay or failure to perform as required by this Agreement resulting from any causes or conditions that are beyond Your or Our reasonable control shall not be considered a breach of or default under this Agreement. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.