January 4, 2021
1. ELIGIBILITY AND USER TYPE
AS BETWEEN COMPANY AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A)INFORM YOU AND ITS OTHER AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF USER CONTENT; (B)OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ITS OTHER AUTHORIZED USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF USER CONTENT AND THE OPERATION OF THESERVICE; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF USER CONTENT UNDER THE CONTRACT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ITS OTHER AUTHORIZED USERS RELATING TO OR BASED ON USER CONTENT, THE SERVICE OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICE WHICH IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.
2. ACCOUNT REGISTRATION AND USE
2.1 Account Registration and Confidentiality. To access the Service and, as applicable, all or portions of the Websites, you must register for an Company account by creating a username and password and as otherwise required therein. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your username and password. We may assume that any communications we receive under your account have been made by you. If you are a billing owner, an administrator, or if you have confirmed in writing that you have the authority to make decisions on behalf of a Customer (“Account Administrator”), you represent and warrant that you are authorized to make decisions on behalf of the Customer and agree that Company is entitled to rely on your instructions.
2.2 Unauthorized Account Use. You are responsible for notifying us at email@example.com if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Company will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Company or a third party due to someone else using your account. In the event that the Account Administrator or Customer loses access to an account or otherwise requests information about an account, Company reserves the right to request from the Account Administrator or Customer any verification it deems necessary before restoring access to or providing information about such account in its sole discretion.
3. PROPRIETARY RIGHTS
3.2 Trademarks. Archipelago, Onarchipelago, Archipelago Analytics, and the Archipelago logo are trademarks of Archipelago. “Archipelago Trademarks” means the foregoing, as well as all other names, marks, brands, logos, designs, trade dress, slogans and other designations Archipelago uses in connection with its products and services. You may not remove or alter any Archipelago Trademarks, or co-brand your own products or material with Archipelago Trademarks, without Archipelago’s prior written consent. You acknowledge Archipelago’s rights in Archipelago Trademarks and agree that any use of Archipelago Trademarks by you shall inure to Archipelago’s sole benefit. You agree not to incorporate any Archipelago Trademarks into your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies. All other brands and names used on this Website may be trademarks, registered trademarks, or service marks of their respective owners.
3.3 You agree to notify Company immediately upon becoming aware of any claim that the Service or the Websites infringes upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Service and the Websites shall, as between you and Company, at all times be and remain the sole and exclusive property of Company. Any unauthorized use of any material contained on or through the Service or the Websites may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
4. USER CONTENT AND FEEDBACK
4.2 Feedback. The Service and the Websites may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to Company and share such Feedback with other users, or the public. By submitting such Feedback, you grant Company and its Affiliates a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other Company marketing materials and where required to do so by law or in good faith to comply with legal process.). Company reserves the right to remove any Feedback posted in public forums for any reason at our sole discretion.
4.3 User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that Company does not control, and is not responsible for, User Content or Feedback, and that by using the Service and/or Websites, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content and Feedback may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless Company and its Affiliates for all claims resulting from User Content and/or Feedback you submit through the Service or the Websites. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
5. LICENSE AND ACCEPTABLE USE
5.2 Acceptable Use. You must at all times comply with the following rules regarding acceptable use of the Service and the Websites, including but not limited to the following rules regarding disruption of the Service, misuse of the Service and Websites, and User Content standards within the Service and Websites.
You may not:
- access, tamper with, or use non-public areas of the Service or the Websites, Company’s computer systems, or the technical delivery systems of Company’s providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
- accessor search the Service or the Websites by any means other than Company’s publicly supported interfaces (for example, “scraping”);
- attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
- interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Service or the Websites.
You may not utilize the Service or the Websites to carry out, promote, or support:
- any unlawful or fraudulent activities;
- the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
- activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;
- the publishing or posting of other people’s private or personal information without their express authorization and permission;
- the sending of unsolicited communications, promotions advertisements, or spam;
- the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
- the promotion or advertisement of products or services other than your own without appropriate authorization.
You may not post any content on the Service or the Websites that:
- violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
- is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking;
- contains any personal information of minors;
- contains any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information without Company’s prior written consent granted as part of a Customer Agreement;
- contains viruses, bots, worms, or similar harmful materials; or
- contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.
In addition to any other remedies that may be available to us, Company reserves the right to take any remedial action it deems necessary, including but not limited to immediately suspending or terminating your access to the Service and the Websites without notice should you fail to abide by the rules in this Section.
7. THIRD-PARTY LINKS AND WEBSITES
The Service and the Websites may provide information and content provided by third parties; links to third-party websites or resources, such as sellers of goods and services; and third-party products and services for sale directly to you. Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
8. DISCLAIMERS; LIMITATION OF LIABILITY
THE SERVICE AND THE WEBSITES AND INFORMATION CONTAINED THEREIN, WHETHER PROVIDED BY COMPANY, ITS AFFILIATES, LICENSORS, SUPPLIERS, ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE OR THE WEBSITES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR THE WEBSITES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICE OR THE WEBSITES, OR ANY LINK PROVIDED ON THE SERVICE OR THE WEBSITES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, COMPANY’S AGGREGATE LIABILITY WILL NOT EXCEED $100. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR THE WEBSITES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE OR THE WEBSITES, AND NEITHER COMPANY NOR ITS AFFILIATES WILL BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR WEBSITES. COMPANY WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above. Accordingly, some of the above limitations may not apply to you. If you are a resident of a state that permits the exclusion of these warranties and liabilities, then the limitations in this Section specifically do apply to you.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Service and/or the Websites (or any part thereof), with or without notice. You agree that Company shall not be liable to you or any third party for any modification, suspension, or discontinuance of the Service and Websites.
11. GENERAL TERMS
11.5 Force Majeure. Under no circumstances shall Company, its Affiliates, licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
11.8 Notices. We may deliver notice to you by e-mail, posting a notice on the Service or the Websites or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following email address: firstname.lastname@example.org.
All rights reserved. Trademarks are the property of their respective owners.