Last Update: May 31, 2016
Welcome to ComplyVault. These Terms of Service (the “Agreement”) detail the respective rights, duties, and obligations of Jacobian Engineering Inc. (the “Company” or “we”) and you (the “Client” or “you”) when using or accessing the Company’s websites and the ComplyVault platform and related software development kit, documentation, and services (collectively, the “Service”).
Please read the following terms and conditions carefully. We urge you to print or save a copy of this Agreement for your records and to review it with your legal team and/or advisors prior to acceptance.
By clicking the "I AGREE" option, creating an account, or paying for or using the Service, you (or, if applicable, the entity you are acting for or on behalf of) accept that the terms, obligations, rights and conditions specified in this Agreement will form a legally binding agreement between you and the Company.
If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind the entity to all terms and conditions of this Agreement and, "you" and "your" in this Agreement shall refer to such entity. If you do not have such authority or if you do not agree to all the terms and conditions in this Agreement, you may not select the "I AGREE" button and may not use the Service.
If you do not agree with the terms and conditions below, do not click the "I AGREE" option, do not create an account, or use the Service. If you do not agree with these terms and conditions in full, you are not authorized to use the Service in any manner for any purpose whatsoever.
1. THE SERVICE; ORDERING, PRICING & PAYMENTS.
You may access and use the Service solely in accordance with this Agreement and You agree to comply with all laws, rules, and regulations applicable to your use of the Service, including any other policies incorporated into this Agreement, including without limitation the ComplyVault Privacy Policy available at https://complyvault.com/policies, as updated from time to time.
(i) Ordering. We offer several tiers of Service, each referred to as a separate “plan”. The process of ordering the Service is detailed at https://complyvault.com/#pricing. The parameters of the Service you select are subject to the then applicable ordering terms and pricing. Selecting certain plans will also require the execution of additional policies, such as a Business Associate Agreement, in keeping with the compliance regulations specific to that Service. If applicable, such agreements will be provided for execution upon ordering the plan.
(ii) Your Account. To access the Service, you must create an account associated with a valid e-mail address and contact information, and you are solely responsible for ensuring that any contact and, if applicable, billing information remains accurate and current. Unless authorized by the Company in writing, you may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement or as required by applicable state, federal and local laws, rules and regulations, we are not responsible for unauthorized access to your account. You agree to operate within the bounds of the access level authorized by the administrators of your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 2, Access to Service; Suspension; Termination. An administrator may deactivate your account without your knowledge in his or her sole discretion.
(iii) Free Trials. Free Product Offering. We may from time to time offer free trials of the Service for a fixed duration, commencing on the date that your application for a free trial is accepted by us and ending as specified in the free trial sign-up process. During the free trial period and with any free product offering, the Service are provided purely "AS IS" without any warranties, express or implied, or representations to you on our part and you may not use Service acquired for trial purposes for any production purposes. In addition, the Service Level Agreement is expressly not applicable to your usage during any free access to the Service and no Service Credits will be granted. Before your free trial period expires, we may contact you directly or via one of our appointed resellers and invite you to purchase Service. By subscribing to a free trial or to free access, you expressly acknowledge and consent that we may contact you in connection with the Service using the contact details you have provided. If you do not purchase the Service following your free trial, this Agreement will terminate upon expiration of the free trial period and you must (i) immediately cease to use the Service, (ii) delete any copies of the Service and documentation, and (iii) remove all information, data, and Protected Health Information (as defined below), regardless of the file format or file contents (and includes, without limitation, all photographs, text, images, audio clips, sounds, videos, databases, e-mails, computer programs, as well as any other files) uploaded by or for you in connection with your use of the Service (“Client Content”) and settings from our network. “Protected Health Information” or “PHI” means Individually Identifiable Health Information, as defined in 45 CFT 160.103, that is transmitted in any medium that identifies an individual or creates a reasonable basis to believe the information can be used to identify an individual and relates to (i) the past, present or future physical or mental health or condition of an individual; (ii) the provision of health care to an individual; or (iii) the past, present or future payment for the provision of health care to an individual. Protected Health Information is limited to that information received by the Company from or on behalf of the Client.
(iv) Pricing; Payment; Service Fees. Pricing for the Service is based on the Service plan you have selected and your usage, as more specifically detailed at https://complyvault.com/#pricing. We may adjust the price of any of the Service plans from time to time, provided that any such adjustment shall first be applied to an existing plan subscription upon renewal of such subscription, whether monthly or annual. We calculate and invoice fees and charges in advance monthly. You will pay us the applicable fees and charges for the Service, using one of the payment methods we support as described in the order process. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or features will be effective when updated fees and charges, if any, are posted on the Service. Access to the Service may be suspended for any overdue accounts until your account is current and fees and charges due are paid in full; provided that after 90 days of suspension, the account will expire and all associated Content will be deleted without opportunity for recovery. If served with legal process (i.e. subpoena, governmental order, etc.) arising from your account or your use of the Service, the reasonable costs (e.g., data duplication and transfer, etc.) and any necessary outside attorney's fees required to effectively respond to such legal process may be charged to you. You agree that we may audit your usage and plan remotely, at any time, in order to verify applicable fees. In addition, but not more than once in each calendar year, we (or our independent agent) may reasonably request records from you for the purpose of auditing your compliance with the terms and conditions of this Agreement, including without limitation your payment of all applicable fees. If an audit reveals that you have underpaid fees, we will invoice you for an amount equal to the shortfall between the fees due and those actually paid by you. You agree to pay us for such shortfall within 30 days of the date of invoice.
(v) Taxes. Unless otherwise agreed, you will pay any taxes (whether sales, use, VAT or otherwise) and duties applicable to your use of the Service, or provide us with a valid taxation exemption certificate for your applicable taxing jurisdictions. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates.
2. ACCESS TO THE SERVICE; SUSPENSION AND TERMINATION.
Subject to your compliance with the terms and conditions of this Agreement, the Company grants you a non-exclusive, revocable right to access and use the Service during the Term. In addition to the terms of this Agreement, your use of any third party software that we provided or made available to you is governed solely by the applicable third party's license terms, which will be provided upon request, and, if applicable, are incorporated herein by reference. We reserve the right to temporarily suspend or discontinue, with or without notice, your access to the Service at any time should we reasonably believe that such action is required, or to avoid an imminent threat of harm to the Company, the Service, other Clients, or any third party, subject to the terms of our Acceptable Use provisions in Section 18 below.
Either party may suspend its performance and/or terminate this Agreement, effective immediately upon written notice, at any time. Subject in all cases to the terms of Section 19, Business Continuity, upon any cancellation or expiration of this Agreement, Client's access and any other rights to the Service shall terminate at the end of the paid month and all Content will be deleted with no chance of recovery, unless you have made post-termination provisions with us in writing for continuation or transfer of the Service.
3. OWNERSHIP OF INTELLECTUAL PROPERTY.
The Service is licensed, not sold, solely for use by (i) Client, and (ii) any individual(s) accessing or using the Service either as individual clients or on behalf of entity clients, (“Users”) under the terms of this Agreement. Except as specifically set forth herein, we retain all right, title, and interest, including all intellectual property and moral rights, relating to or embodied in the Service, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Service. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to the Service are the trademarks of the Company. You are prohibited from using any Marks without the Company’s prior written permission, which shall be provided in our sole and exclusive discretion. We reserve all rights and interests not expressly granted in this Agreement, and no direct or indirect ownership interest or license right in or to the Company’s Marks, the Service or any other Company intellectual property is granted to Client or created by implication in this Agreement. Unless you direct otherwise, you agree that we may list you as a client in our marketing, business development and/or public relations materials and announcements.
4. LICENSES TO THE SERVICE.
You expressly grant, and represent and warrant that you have all rights necessary to grant, to the Company, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, and distribute your name, logo, or any other identifying words or marks used by and/or associated with you to identify you (“Your Marks”), in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service, to identify you as a customer or for marketing and publicity purposes.
5. RESTRICTIONS.
You shall not reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Service. Unless expressly set forth herein, You may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, any rights in the Service. You may not resell or act as a service bureau for the Service or any component thereof. You may not remove from the Service, or alter or add, any Marks or copyright notices or other proprietary rights markings.
6. MAINTENANCE AND CLIENT SERVICE.
We will perform regular maintenance. If such maintenance will render the Service unavailable to you, we will inform you of such downtime on the Service at least [48 hours] prior to the planned downtime. In certain circumstances we may need to perform emergency maintenance and will, to the extent reasonably possible, provide advance notice of such emergencies. Any such maintenance, whether regular or emergency, will not in any way qualify as the "unavailability of Service" with respect to any applicable Service Level Agreement.
7. ELECTRONIC COMMUNICATIONS; NOTICES.
The Service is conducted electronically and you agree that the Company may communicate electronically with you and any Users for any matters relating to the Service, including but not limited to information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Service, and legal notices of any kind, including cancellation and termination, unless prohibited by law. Any notices to be provided to you under this Agreement shall be sent by electronic mail to the last email address that we have on file for you, and you hereby consent to receiving any such notice by electronic mail. Notice shall be deemed to have been given by the Company on the date we sent the relevant electronic communication with applicable receipt of delivery.
8. UPDATES; APPLICABLE TERMS AND AUTHORIZATION FOR AUTO UPDATES.
This Agreement shall apply to all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Service (collectively, “Updates”) that we may provide or make available generally to its clients after the date that the Service commences, subject to any additional terms and conditions we provide that are applicable to such Updates. You hereby authorize us to, in accordance with the Company's standard operating procedures, automatically and in good faith transmit, install, and otherwise provide Updates to the Service when you access the Service without further notice or consent.
9. YOUR DATA SECURITY OBLIGATIONS
You are fully responsible for the security of data on your site or otherwise in your possession. You agree to comply with all applicable state and federal laws and rules in connection with your collection, security, and dissemination of any protected health information (PHI) on your site, through your business, or by any other means. You agree that at all times you shall be compliant with HIPAA and HITECH requirements, as applicable. The steps you will need to take to comply with HIPAA and HITECH when using the Service will vary based on your plan. For more information about the available plans and specific implementations of the Service, please refer to our provided documentation. If we believe that it is necessary based on your plan selection, and we request it of you, then you will promptly provide us with documentation evidencing your compliance with HIPAA and HITECH. You also agree that you will use only HIPAA compliant service providers in connection with the storage, or transmission of PHI. Information on the HIPAA rules can be found on the Health and Human Services website. It is your responsibility to comply with these standards.
10. CONTENT: OWNERSHIP AND LIMITED LICENSE.
We do not claim ownership of any Client Content. As between the Company and you, you are the owner or applicable licensor of the Client Content. In connection with our provision of the Service to you, except as otherwise provided in this Agreement, as between you, on the one hand, and the Company, on the other hand, you retain all right, title, and interest in and to the Client Content. You acknowledge that the Service are provided by automated means and that Company personnel will not access, use, or disclose any Client Content, except as necessary to perform the Service, including but not limited to the following: (i) during a Service interruption as necessary to restore applicable Client Content at your request; (ii) upon your request that we serve as host, producer, or facilitator as part of the Service; (iii) upon your request, the Company providing, remote desktop support; or (iv) as reasonably deemed necessary or advisable by the Company, at its sole but reasonable discretion, to conform to applicable legal requirements or to comply with legal process. You hereby grant to the Company a nonexclusive, worldwide, royalty-free, fully-paid, irrevocable, transferable license to host, cache, store, display, record and copy Client Content solely for the purpose of providing the Service, including the aforementioned actions, to you during the Term.
We retain all rights, title, and interest in any and all information, data, and content generated by the Company through operation of the Service, or in any output generated by operation of the Service (the “Company Content”, together with Client Content, the “Content”). As between the Company and you, the Company is the owner or applicable licensor of the Company Content. In connection with our provision of the Service to you, except as otherwise provided in this Agreement, as between you, on the one hand, and the Company, on the other hand, the Company retains all right, title, and interest in and to the Company Content. We hereby grant to you a nonexclusive, worldwide, royalty-free, fully-paid, revocable, nontransferable license to store, display, record and copy the Company Content solely in connection with your use of the Service during the Term.
11. CLIENT CONTENT REPRESENTATIONS AND WARRANTIES.
You represent that You: (i) are the owner or authorized licensee of any and all Client Content; (ii) will not publish, post, upload, record, or otherwise distribute or transmit Client Content using the Service that: (a) infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party; (b) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy, or data security); (c) is profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (d) is harmful to minors or pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, malware, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, delete, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (f) is materially false, misleading, or inaccurate.
12. RETENTION OF CLIENT CONTENT.
As long as your account is active, you shall be responsible for managing and retaining any Client Content. Other than as required by applicable law or legal process or as otherwise agreed, we shall not be responsible for retaining any Client Content after account termination or for archiving purposes. You acknowledge that we may delete all Client Content after the account is terminated, subject to the terms of this Agreement and/or any termination or transition of service agreement the parties may enter.
13. SERVICE AVAILABILITY.
We will use commercially reasonable efforts to provide Clients subscribing to an Enterprise plan with the then applicable Service Level Agreement. In the event the Service does not meet the service commitment in effect at the time of any outage, such Enterprise Clients may be eligible to receive a service credit as described in the then applicable Service Level Agreement.
14. SUBMISSIONS.
You may submit questions or comments to the Company from time to time. We reserve the right to use in whole or part the content any such questions or comments and all such communications, comments, feedback, suggestions, ideas, and other submissions related to the Service submitted to the Company, excluding your Confidential Information (as defined below) (collectively, "Submissions") will become and shall thereafter remain our property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are assigned (and in the future deemed to be assigned) by you to the Company.
15. CONFIDENTIALITY.
You may use Company Confidential Information solely in connection with your use of the Service, as permitted under this Agreement, and will not disclose any Company Confidential Information at any time. Both parties will hold in strict confidence and not use or disclose to any third party any Confidential Information of the other party, other than as permitted by this Agreement. Each party will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, but in no event less than a reasonable degree of care. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service. “Confidential Information” means all nonpublic information disclosed by the Company or by you that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to a party's technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that a party is obligated to keep confidential; and (c) the nature, content and existence of discussions or negotiations between the parties. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by a party without reference to the other party's Confidential Information.
16. COMPLIANCE WITH APPLICABLE LAW.
You agree (i) not to use the Service for any illegal purposes and (ii) to comply with all applicable local, state, national, and international laws and regulations, including without limitation laws relating to recording conversations, privacy, and data protection and public displays or performances, and United States export laws and regulations regarding the transmission of technical data exported from the United States through the Service. You further agree that this Agreement does not require the Company to exercise any right or remedy in order to benefit or protect anyone, although we reserve the right to do so in our sole discretion.
17. DMCA POLICY
We respect the intellectual property rights of others and expects you to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, we will respond expeditiously to claims of copyright infringement committed using the Service if such claims are reported to our Designated Copyright Agent identified in the sample notice below.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Service by completing the following DMCA Notice of Alleged Infringement and delivering it to our Designated Copyright Agent. Upon receipt of Notice as described below, we will take whatever action, in our sole discretion, we deem appropriate, including removal of the challenged content from the Service.
DMCA Notice of Alleged Infringement (“Notice”)
- Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site or the exact location where such material may be found.
- Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature.
- Deliver this Notice, with all items completed, to the Company’s Designated Copyright Agent:
Copyright Agent Jacobian Engineering Inc. 1530 Union Street Alameda, CA 94501 privacy@complyvault.com
18. ACCEPTABLE USE PROVISIONS.
You agree to abide by the Acceptable Use provisions, and not to use, promote aid or direct others to use the Service in conflict with these terms or this Agreement. The Service is not designed or intended for use in any situation where failure or fault of any kind of the Service could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (collectively, "High Risk Use"). You may not use the Service in, or in conjunction with High Risk Use, which is strictly prohibited. We reserve the right, but assume no obligation, to investigate any violation of these terms or any misuse of the Service. You acknowledge that we may report to appropriate law enforcement officials, regulators, or other appropriate third parties any activity we suspect violates any law or regulation. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties, as requested, by providing network and systems information related to alleged violations of this Agreement.
Unlawful Activities. We prohibit the use of the Service in connection with any criminal activity or any violation of any applicable local, state, provincial, federal, national or international laws, treaties, court orders, ordinances, regulations or administrative rules.
Interference. We prohibit use of the Service in any manner that materially interferes with any communications network or the usage of services received by others.
Intellectual Property. We prohibit use of the Service to transmit, re-transmit, or store any content or to engage in any activity that infringes the Company’s or any third party’s intellectual property rights or privacy rights (including but not limited to any rights protected by any copyright, patent, trademark, trade secret, trade dress, right of privacy, moral rights or other intellectual property right). While we reserve the right to restrict any actions alleged to violate such rights, we have no obligation to police any activities.
Offensive Or Threatening Material Or Content. We prohibit the use of the Service to host, post, transmit, or re-transmit any content or material that is threatening, harassing, obscene, pornographic, racist, defamatory, libelous, treasonous, or that promotes the use of violence, that provides instruction, information or assistance in causing or carrying out violence against any organization, group or individual, or that provides guidance, information or assistance with respect to causing damage or security breaches to our network or to the network of any other service provider.
E-Mail Abuse And Unsolicited Bulk Email ("Spam"). We prohibit the use of the Service for to send any form of unsolicited bulk email. Clients and Users may not use the Service to solicit Clients from, or collect replies to, messages sent from another Internet Service Provider where those messages violate these terms or that of another provider.
Security Violations. We prohibit use of the Service to interfere with, to gain unauthorized access to, or otherwise violate the security of our or any third party's server, network, personal computer, network access or control devices, software or data, or other system, or to attempt to do any of the foregoing.
Client Responsibilities. You remain solely and fully responsible for Client Content and for maintaining the basic security of the systems utilized by and on your behalf to access the Service, including implementation of necessary patches and operating systems updates, to prevent use by others in a manner that violates these provisions. Clients are responsible for taking corrective actions on vulnerable or exploited accounts to prevent abuse.
Incident Reporting. Any complaints (other than claims of copyright or trademark infringement) regarding the violation of these provisions by a Client or User should be directed to privacy@complyvault.com. Where possible, include details that would assist us in investigating and resolving the complaint (i.e. expanded headers and a copy of the offending transmission).
19. BUSINESS CONTINUITY.
In the event that we are unable to continue providing the Service to you, we will provide access to the most current data set, as well as all necessary information, including application settings and utilities, in order to facilitate your transition to another service provider or in-house implementation. Upon termination, we will, to the extent possible, provide you, at reasonable cost in accordance with industry pricing, a current copy of your data; provided that you are at such time in good standing in all then current fees and charges and we receive written request from you for a copy of your data no later than 15 days after termination (the "Termination Transition Period"). Each party will reasonably cooperate to effect a timely and orderly transition of services, if applicable, to any designated third party identified by you in writing to us within the Termination Transition Period.
20. INDEMNIFICATION.
You agree to defend, indemnify, and hold the Company harmless from and against any and all claims and liabilities (including, but not limited to, fees, costs and other reasonable expenses of attorneys and expert witnesses, but excluding any loss, liabilities, costs, damages or other expenses attributable solely to the Company’s negligent acts/omissions or willful misconduct) related to or arising from: (i) Your use of the Service (including without limitation, any User or person accessing the Service using your password or access key with or without your permission), (ii) any actual or alleged violation of this Agreement or applicable law, and/or (iii) any actual or alleged infringement or violation (by you or any User or person accessing the Service using your password or access key with or without Your permission) of any intellectual property or privacy or other right of any person or entity. Notwithstanding the foregoing your potential indemnification liability shall exclude, to the extent permitted by applicable state, federal or international laws, any special, incidental, punitive or consequential damages to us other than those arising from or related to your negligent or willful: (x) misappropriation of Client Content or trade secrets; (y) actual or alleged infringement of a third party's intellectual property rights; or (z) breach of the confidentiality obligations provided.
21. THE SERVICE “AS IS”.
The Service is provided “AS IS” and with all faults and without any warranty beyond the sole and limited warranty that the Service will perform substantially as described in applicable User documentation. Except as otherwise provided in this section, we hereby disclaim all warranties, conditions, and duties of any kind (if any), express, implied, or statutory, unless prohibited by law, including without limitation, any warranty of merchantability, title, infringement, or fitness for any particular purpose, of accuracy, of system integration or compatibility, or of workmanlike effort. The foregoing disclaimers include, without limitation, any warranty, duty, or condition that: the Service will be uninterrupted, reliable, available at any particular time, secure, error-free, virus-free, or correspond to any condition; that messages or requests will be delivered; that defects will be corrected; or that the Service, any Content, systems, servers, and information that is in or utilized by the Service will be free of harmful aspects.
22. CONTENT: LIMITATION OF LIABILITY.
You agree that the Company will not be liable for any Content, including but not limited to Content that is sent, received, held, released or otherwise connected in any respect to the Service, Content that is uploaded or downloaded but not received, and Content sent using and/or included in the Service, including without limitation any threatening, defamatory, obscene, offensive, or illegal content; further, you agree that we will not be liable for any access to or alteration of such Content or for any infringement of another's rights, including privacy, intellectual property, or data protection rights arising from such Content or from the conduct of client or third parties other than which may be the result of our willful actions.
23. EXCLUSION OF CERTAIN DAMAGES.
Unless prohibited by law, you agree that the following damages are excluded and that you will not be entitled to any of them: all special, indirect, incidental, punitive, exemplary and consequential damages; damages for loss of profits or goodwill; damages for loss of confidential or other information, for business interruption, for loss of privacy, or for failure to meet any duty including of good faith or of reasonable care, and for any other pecuniary or other loss whatsoever other than the direct damages described in Section 24 below. Further, neither we nor any of our affiliates will be responsible for any compensation, damages or reimbursement arising from or in connection with: your inability to use the Service, including as a result of any (i) termination or suspension of this Agreement resulting from your actions or your use of or access to the Service, (ii) our discontinuation of any or all of the Service, (iii) without limiting any obligations under any applicable Service Level Agreement, any unanticipated or unscheduled downtime of all or a portion of the Service for any reason, including as a result of power outages, system failures or other interruptions; (iv) the cost of procurement of substitute goods or services; (v) any investments, expenditures, or commitments by you in connection with this agreement or your use of or access to the Service, or (vi) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any Client Content or other data. The foregoing damages will be excluded even in the event that we have been advised of the possibility of such damages. You agree that these exclusions and the below limitation on liability will apply even if any remedy fails of its essential purpose.
24. LIMITATION ON LIABILITY.
We shall not be liable for any damages except for direct damages actually incurred by you up to the greater of the amount that you actually paid for the Service during the 12 months preceding the event that give rise to your claim or One Hundred Dollars ($100), regardless of the form of action or claim.
25. SURVIVABILITY.
In addition to any payment obligations arising prior to termination, the following sections will survive any termination of this Agreement: Sections 1, 3, 4, 7, 9-11, 15, and 19-31.
26. GOVERNING LAW; JURISDICTION; DISPUTE RESOLUTION.
This Agreement and all causes of action related to the Service shall be governed by and construed in accordance with the substantive laws of California, without regard for any choice or conflict of laws rule or principle that would result in the application of the domestic substantive law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any dispute relating in any way to the Service or this Agreement will be adjudicated in any state or federal court in Alameda County, California. We may seek injunctive or other relief, at law or equity, in any state, federal, or other court of competent jurisdiction for any actual or alleged infringement or misappropriation of our, our affiliates’, or any third party's intellectual property or other proprietary rights. Unless otherwise prohibited by applicable law, you agree that any claim or cause of action arising out of or related to this Agreement must be commenced by you within one (1) year after the cause of action arose. Should a dispute arise under this Agreement, the parties shall engage in good faith, informal dispute resolution for a minimum period of 30 days to resolve the dispute. Should the parties fail to resolve their dispute informally, then they shall engage in mediation with JAMS, at their joint and equal expense. Should the mediation fail to resolve their dispute, the parties shall thereafter engage in binding arbitration with JAMS. To ensure minimal cost, the arbitration shall be in front of a single arbitrator and shall be conducted in accordance with JAMS’ Optional Expedited Arbitration Procedures. The binding arbitration shall be at the parties’ joint and equal expense, with attorneys’ fees and costs to the prevailing party upon conclusion.
27. WAIVER; SEVERABILITY.
Our failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of this Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under this Agreement, and any such attempt will be void. We may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Service.
28. FORCE MAJEURE.
We will not be liable for non-performance or delay in performance caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, acts of terrorism, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, any act of God, or any other event of a similar nature.
29. EXPORT RESTRICTIONS.
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Service. Without limiting the foregoing, you acknowledge that the Service is or may be an encryption item subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Service in any form in violation of the export laws of the United States or any foreign jurisdiction. You will defend, indemnify, and hold the Company harmless from and against any violation of such laws or regulations.
30. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between you and the Company with respect to the subject matter of this Agreement, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. This Agreement does not create any third party beneficiary rights. Our performance of this Agreement is subject to existing laws and legal process, and you agree that we may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of this Agreement or that policy. A printed or electronic version of this Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
31. MODIFICATIONS TO THIS AGREEMENT.
We may amend this Agreement (including the Privacy Policy) from time to time by posting an amended version on the Service or sending you written notice in accordance with this Agreement's notice provisions. Such modifications will be deemed accepted and become effective after such notice. Your continued use of Service following any such notice will confirm your consent to any modifications. This Agreement may not be amended by you in any other way except through a written agreement executed by authorized representatives of each party. Notwithstanding the foregoing, we may amend the Privacy Policy at any time by posting a new version on the Service. If a revision meaningfully reduces your rights, we will notify you (by, for example, sending a message to the email address associated with your account, or posting on the Service).
32. CONTACT US.
Should you have any questions about the Service or the terms provided in this Agreement, feel free to contact us at privacy@complyvault.com.