PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND KLOSER, LLC. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT ACCEPT THESE TERMS, CREATE AN ACCOUNT, OR USE THE SERVICES (AS DEFINED BELOW).
THE SERVICES ARE INTENDED FOR BUSINESS USE OR USE IN CONNECTION WITH AN INDIVIDUAL’S TRADE, CRAFT, OR PROFESSION ONLY.
In these Terms of Service (referred to as these “Terms” or this “Agreement”), the terms “you”, “your”, or “Customer” refer to you. If you are creating an account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to us that you have the authority to bind that organization to these Terms (and, in which case, the terms “you”, “your”, or “Customer” refer to that organization). The exception to this is if that organization has a separate written agreement with us covering the use of the Services, in which case that agreement will govern such use. The terms we”, “us,” “our” or Kloser refer to Kloser LLC., a Texas limited liability company, located at 3600 Inverness Dr, Houston TX 77019. Kloser or Customer may also be referred to individually as “party” and together as “parties” in these Terms. To be eligible to create an account in order to use the Services, you must review and accept these Terms.
When we refer to the “Services” in these Terms, we mean all products and services provided by us or our Affiliates, as applicable, that are (a) used by you, including, without limitation, products and services that are on a trial basis or otherwise free of charge or (b) ordered by you under an Order Form (as defined below). The Services may include products and services that we provide on our sites, applications, which include Mobile Software, through web brower extensions, and other downloadable products.
When we refer to the "Data" in these Terms, we mean information regarding business professionals or companies retained in Kloser's B2B Database, the "Database".
When we refer to an “Affiliate” in these Terms, we mean any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
We may update these Terms from time to time. We will provide you with prior written notice of any material updates at least thirty (30) days in advance of the effective date; provided, however, we may not be able to provide at least thirty (30) days prior written notice of material updates to these Terms that result from changes in laws, regulations, or requirements from telecommunications providers. The updated version of these Terms will be available at https://www.kloser.com/legal/tos.
Notices for material updates to these Terms will be given in accordance with Section 13.5 (Notices). Except as otherwise specified by us, updates will be effective and binding upon the date indicated at the top of these Terms. The updated version of these Terms will supersede all prior versions.
Following such notice, your continued use of the Services on or after the date the updated version of these Terms is effective and binding constitutes your acceptance of such updated Terms. If you do not agree to the updated version of these Terms, you must stop using the Services immediately.
To use the Services, you will be asked to create an account. As part of the account creation process, you’ll be asked to provide your email address, create a password, and verify that you are a human being by providing a telephone number to which we will send you a verification code to enter into an online form. When creating an account, you must provide true, accurate, current, and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current, and complete after you create each account. If you breach these Terms, including, without limitation, your payment obligations in Section 6 (Fees and Payment Terms), you are strictly prohibited from creating new accounts until you remedy such breach in full.
3.1 Our Responsibilities. We will (a) make the Services available to you in accordance with these Terms and any applicable ordering document between the parties that specifies mutually agreed upon rates for certain Services and other commercial terms, including any applicable minimum spend commitments (“Order Form”); (b) provide the Services in accordance with laws applicable to our provision of the Services to our customers generally (i.e. without regard for your particular use of the Services), subject to your use of the Services in accordance with these Terms, the applicable Documentation, and any applicable Order Form(s); (c) make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (d) if applicable, use trained, qualified personnel to provide the Services; and (e) use commercially reasonable efforts to provide you with applicable support for the Services as described in our Support Terms.
3.2 Beta Offerings. From time to time, we may make Services that are identified as alpha, beta, not generally available, limited release, developer preview, or any similar Services offered by us (collectively, “Beta Offerings”) available to you. You may choose to use a Beta Offering in your sole discretion. We may discontinue a Beta Offering at any time, in our sole discretion, or decide not to make a Beta Offering generally available.
3.3 Suspension of Services. We may suspend the Services immediately upon notice to you for cause if, we in good faith, determine: (a) that you or an End User (as defined below) materially breaches (or we, in good faith, believe that you or an End User has materially breached) any provision of these Terms or our Acceptable Use Policy, including our Service and Country Specific Requirements therein; (b) there is an unusual and material spike or increase in your use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) that our provision of the Services is prohibited by applicable law or regulation; (d) there is any use of the Services by you or an End User that in our judgment threatens the security, integrity, or availability of the Services; or (e) that information in your account is untrue, inaccurate, or incomplete. You remain responsible for the Fees (as defined below).
If we suspend the Services pursuant to this Section 3.3 or Section 6.3 (Fees and Payment Terms), we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur in connection with any such suspension.
3.4 Changes to the Services. The features and functions of the Services, including the Kloser APIs and our SLA, may change over time; provided, however, we will not materially decrease the overall functionality of the Services. It is your responsibility to ensure each Customer Application (as defined below) is compatible with the then-current Services. Although we try to avoid making changes to the Services that are not backwards-compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementation. In the event we make a non-backwards compatible change to a Kloser API and such change materially and negatively impacts your use of the Services (“Adverse API Change”), (a) you will notify us of the Adverse API Change and (b) we may agree to work with you, in our sole discretion, to resolve or otherwise address the Adverse API Change, except where we, in our sole discretion, have determined that an Adverse API Change is required for security reasons, by telecommunications providers, or to comply with applicable law or regulation.
You will: (a) be solely responsible for all use of the Services and Documentation under your account; (b) not transfer, resell, lease, license, or otherwise make available the Services or Data to third parties or offer them on a standalone basis; (c) use the Services only in accordance with these Terms, any applicable Order Form(s), and applicable law or regulation; (d) use the Data solely for the your internal business purposes (which is understood to include marketing to prospective and current customers or recruitment purposes, "Acceptable Use"); (e) not use the Data to compile similar databases or services; (f) not violate third parties’ rights to privacy and other rights; (g) not use the Services in any way which can be deemed to be stalking, offensive, abusive, defamatory, fraudulent or deceptive, threatening, advocating harassment or intimidation; (h) not use the Services or the Data in violation of any applicable law or in any way which promotes illegal activities, including, without limitation, privacy and data protection and SPAM laws; (i) not disparage or misrepresent the capabilities or reputation of Kloser; (j) not disclose the source of the Data provided by Kloser; (k) do your best to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use; (l) provide reasonable cooperation regarding information requests from law enforcement or regulators; and (m) comply with the representations and warranties you make in Section 8 (Representations, Warranties, and Disclaimer).
We will not be liable for any loss or damage arising from unauthorized use of your account.
In any use of the Data, you agree to comply with all applicable data protection, security, marketing or privacy-related laws, statutes, directives or regulations, including but not limited to: (a) General Data Protection Regulation (“GDPR”) together with any amending or replacement legislation, any EU Member State or United Kingdom laws and regulations promulgated thereunder, (b) the California Consumer Privacy Act of 2018 and the California Consumer Privacy Act Regulations (“CCPA”) together with any amending or replacement legislation, (c) Brazil’s General Data Protection Law (“LGPD”), (d) Federal CAN-SPAM Act of 2003 and Canada’s Anti-Spam Legislation together with any amending or replacement legislation, and (e) and all other equivalent laws and regulations in any relevant jurisdiction relating to Personal Data and privacy, as each may be amended, extended or re-enacted from time to time. In case of any violation of the restrictions in this Section, Kloser may immediately suspend your access to the Services. In addition to any other damages it may be entitled to under the law, should you or any person using the Services through your account knowingly breach any material term of this Agreement, Kloser shall have a right to injunctive relief, including attorneys’ fees and court costs, as required to cure the breach.
5.1 Your Affiliates. Your Affiliates are not permitted to use the Services under these Terms that you accepted. Each of your Affiliates that wants to use the Services must accept these Terms individually and create its own account.
5.2 Our Affiliates. Our Affiliates may provide the Services, or a portion thereof, to you in accordance with these Terms and any applicable Order Form(s) with such Affiliates. We will (a) be responsible for the Services our Affiliates provide and (b) not be relieved of our obligations under these Terms if our Affiliates provide the Services or a portion thereof. We will enforce these Terms relating to the Services our Affiliates provide. Notwithstanding anything to the contrary in these Terms, our Affiliates may directly bill you (x) for the Services they provide or (y) solely as a billing agent for us or another Affiliate of ours providing the Services, as applicable.
6.1 Fees. You agree to pay fees in accordance with the then-current applicable rates available at https://www.kloser.com/pricing, unless otherwise set forth in the applicable Order Form(s).
6.2 Taxes. All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You will pay all Taxes associated with these Terms, excluding any taxes based on our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.
6.3 Payment Terms. Payment obligations are non-cancelable and fees and Taxes (collectively, "Fees") once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 6.4 (Payment Disputes), you will pay the Fees due under these Terms in accordance with the following applicable payment method:
6.3.1 Credit Card Payment Terms. If you elect to add funds to your account by credit card and use such funds to pay the Fees due, you are responsible for ensuring that such funds cover the Fees due. If your account does not have sufficient funds or your credit card declines a charge for the Fees due, we reserve the right to suspend the Services to all of your accounts until the Fees due are paid in full.
6.3.2 Invoicing Payment Terms. If you elect to receive invoices and we approve you for the same, invoices will be sent to you each month via email to the email address(es) you designate in your account. You will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent you procure the Services without an Order Form, the Fees are payable in United States dollars. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date we provide you with written notice of the same, we may (a) assess, and you will pay, a late fee of the lesser of 1.5% per month or the maximum amount allowable by applicable law and (b) suspend the Services to all of your accounts until the Fees are paid in full.
6.4 Payment Disputes. You will notify us in writing within sixty (60) days of the date we bill you for any Fees that you wish to dispute. You may withhold the disputed Fees until the dispute is resolved. Where you are disputing any Fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless you fail to cooperate diligently with us or we determine your dispute is not reasonable or brought in good faith.
6.5 Automatic Renewal of Subscriptions. If you pay for a subscription by credit or debit card (or other payment method identified on our services as involving an automatically renewing subscription) and you do not cancel your subscription as set forth in section 6.6 below prior to the end of the subscription term, your subscription will be automatically extended at the end of each term for successive renewal periods of the same duration as the subscription term originally selected (for example, unless you cancel, a one month subscription will automatically renew on a monthly basis and a six month subscription will automatically renew on a six month basis). Unless otherwise indicated in any applicable additional terms or communications we send to your registered email address, such renewal will be at the same subscription fee as when you first subscribed, plus any applicable taxes, unless we notify you at least 10 days prior to the end of your current term that the subscription fee will increase. You acknowledge and agree that your payment method will be automatically charged for such subscription fees, plus any applicable taxes, upon each such automatic renewal. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all recurring charges to your credit or debit card (or other payment method, as applicable) based on this automatic renewal feature without further authorization from you and without further notice except as required by law. You further acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if you are notified that there will be an increase in the applicable subscription fees.
6.6 Cancellation of Subscriptions. To change or cancel your subscription at any time, go to the “settings” page of your account, click on “subscription” and follow the instructions. If you cancel your subscription, your subscription benefits will continue until the end of your then current subscription term, but your subscription will not be renewed after that term expires. You will not be entitled to a prorated refund of any portion of the subscription fees paid for the then current subscription term.
7.1 Ownership. As between the parties, we exclusively own and reserve all right, title, and interest in and to the Services, the Data, the Database, our Confidential Information (as defined below), any data that is derived from the use of the Services, and any feedback or suggestions provided by you regarding the Services.
7.3.1 Definition. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, Order Form(s), security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
7.3.2 Use and Disclosure. Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under these Terms and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, and in our case, subcontractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfill its obligations under these Terms. Receiving Party is responsible for its Representatives’ compliance with this Section 7.3. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 7.3. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
7.3.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.
7.3.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 7.3 and that, in the event of an actual or threatened breach of the provisions of this Section 7.3, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
8.1 Data Brokers. You represent and warrant that you or your employer is not a data broker.
8.2 Services. We represent and warrant that the Services perform materially in accordance with the applicable Documentation. Our sole obligation, and your sole and exclusive remedy, in the event of any failure by us to comply with this Section 8.2 will be for us to, at our option, (a) remediate any material non-conformity or (b) refund to you the Fees you actually paid for the time period during which the affected Services do not comply with this Section 8.2.
8.3 Anti-Corruption and International Trade Laws. Each party (a) warrants that it will conduct business in accordance with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States and (b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. You will promptly notify us in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by us. You represent that you have obtained and warrant that you will continue to obtain all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it (and, in your case, also End Users) is not on any government prohibited, denied, unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). You will (a) immediately discontinue your use of the Services if you are placed on any Sanctions List and (b) remove an End User’s access to the Services if such End User becomes placed on any Sanctions List. You represent that you have not and warrant that you will not export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section 8.3. If your account is blocked because it is operating in a country or region prohibited under this Section 8.3, you will receive notice of your account being inoperable when you attempt to log into your account in such prohibited country or region.
8.4 DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS IS,” AND WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. WE ADDITIONALLY DISCLAIM ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS. YOU ACKNOWLEDGE THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE. ACCORDINGLY, YOU AGREE WE ARE NOT LIABLE FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK. BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER, AND WE WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER.
You will defend us, our officers, directors, employees, and Affiliates (collectively, Kloser Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a Kloser Indemnified Party by a third party alleging or arising out of (a) your breach of Section 4 (Your Responsibilities). You will indemnify us from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against a Kloser Indemnified Party.
Under no circumstances whatsoever will Kloser be liable in any way for any actions made with the Data by you, your employees, agents, partners, service providers sub-processors, or any other third party.
10.1 LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2 LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.3 EXCEPTIONS TO THE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 10.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 10.1 AND SECTION 10.2 DO NOT APPLY TO (a) YOUR BREACH OF SECTION 4 (YOUR RESPONSIBILITIES); (b) YOUR BREACH OF SECTION 6 (FEES AND PAYMENT TERMS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (MUTUAL INDEMNIFICATION).
THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 10 IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.
You grant us the right to use your name, logo, and a description of your use case to refer to you on our website, or marketing or promotional materials, subject to your standard trademark usage guidelines that you expressly provide to us.
12.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 12.2 (Termination) (“Term”).
12.2.1 For Convenience. Either party may terminate these Terms and close all of your accounts for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, Customer may not terminate these Terms until such Order Form(s) has expired or been terminated in accordance with its terms.
12.2.2 Material Breach. We may terminate these Terms (including all Order Form(s)) and close all of your accounts in the event you commit any material breach of these Terms and fail to remedy such material breach within fifteen (15) days of the date we provide written notice of such material breach to you. For the avoidance of doubt, your breach of our Acceptable Use Policy, including our Service and Country Specific Requirements therein, will be considered a material breach of these Terms. You may also terminate these Terms (including all Order Form(s)) in the event we commit a material breach of these Terms and fail to remedy such material breach within fifteen (15) days of the date you provide written notice of such material breach to us.
12.2.3 Insolvency. Subject to applicable law, either party may terminate these Terms immediately and close all of your accounts by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
12.3 Survival. Upon termination of these Terms, the terms of this Section 12.3, and the terms of the following Sections will survive (i.e. still apply): Section 3.1(b) (regarding our Security Overview), Section 6 (Fees and Payment Terms), Section 7 (Ownership, Customer Data, and Confidentiality), Section 8.4 (Disclaimer), Section 9 (Mutual Indemnification), Section 10 (Limitation of Liability), and Section 13 (General).
13.1 No Waiver and Order of Precedence. No failure or delay by either party in exercising any right or enforcing any provision under these Terms will constitute a waiver of that right, provision, or any other provision. Any waiver must be in writing and signed by each party to be legally binding. Titles and headings of sections of these Terms are for convenience only and will not affect the construction of any provision of these Terms. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) these Terms, (3) our Acceptable Use Policy, including our Service and Country Specific Requirements therein, (4) any other terms incorporated by reference herein, and (5) the applicable Documentation.
13.2 Assignment. You will not assign, delegate, or otherwise transfer these Terms or any applicable Order Form(s), in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms or any applicable Order Form(s) without our consent will be null and void. We may assign, delegate, or otherwise transfer these Terms or any applicable Order Form(s), in whole or in part, without your consent. Subject to this Section 13.2, these Terms and any applicable Order Form(s) will be binding on each party and each party’s successors and assigns.
13.3 Relationship. Each party is an independent contractor in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its respective employees and agents and its respective labor costs and expenses arising in connection with its respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
13.4 Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
13.5 Notices. Notices to us under these Terms will be provided via email to firstname.lastname@example.org. Notices to you under these Terms will be provided via (a) email to the email address you designate in your account or (b) your account portal.
13.6 Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of these Terms to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause.
13.7 Government Terms. We provide the Services, including any related software and technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense.
13.8 Dispute Resolution. In the event of a dispute, claim, or controversy arising out of or in connection with these Terms or the breach, termination, enforcement, interpretation, or validity thereof (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, then either party may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator chosen by the mutual agreement of the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in (a) Houston, Texas.
13.9 Governing Law and Venue. Unless unenforceable under applicable law, these Terms will be governed by and interpreted in accordance with the laws of State Texas in United States. Except as provided in Section 13.8 (Dispute Resolution), any legal suit, action, or proceeding arising out of or related to these Terms or the Services will be instituted in the applicable courts in state of Texas, and each party consents to the personal jurisdiction of these courts.
13.10 Class Action Waiver. Each party agrees that any Disputes between the parties must be brought against each other on an individual basis only. That means neither party can bring a Dispute as a plaintiff or class member in a class action, consolidated action, or representative action. An arbitrator cannot combine more than one person’s or entity’s Disputes into a single case and cannot preside over any consolidated class or representative proceeding. Each party agrees the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought a Dispute and cannot impact or otherwise be used to decide Disputes with other people or entities, including other Twilio customers. If a court decides that this Section 13.10 is not enforceable or valid, then this Section 13.10 will be null and void. But, the rest of these Terms will still apply.
13.11 Entire Agreement. Except as provided in these Terms and any exhibits or attachments, applicable Order Form(s), or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, or agreements, oral and written. The parties agree that Section 7.3 (Confidentiality) hereby supersedes and prevails over all prior, contemporaneous, and future non-disclosure or confidentiality agreements between the parties in their entirety. No oral or written information or advice given by us, our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document provided by you will be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon will be null and void and have no effect with regard to these Terms between the parties and be non-binding against us even if accepted or signed by us after the date you accept these Terms.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, Cypher Zero Inc. SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE LEGAL THEORY OR FORM OF ACTION.
In the event that someone brings a claim against us related to your actions, content, or information on Cypher Zero Inc.’s application, you agree to indemnify, defend, and hold Cypher Zero Inc. and its agents harmless from and against any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) relating to such claim. Cypher Zero Inc. will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
These Terms shall be governed by the laws of the State of California, without regard to conflict of law provisions.
Let's Try To Sort Things Out First. We want to address your concerns without needing a formal legal case. Before filing a claim against Company, you agree to try to resolve the dispute informally by email@example.com. We'll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 30 days of submission, you or Company may bring a formal proceeding.
We Both Agree To Arbitrate. You and Company agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco (CA), or any other location we agree to.
Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees.
Exceptions to Agreement to Arbitrate. Either you or Company may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed.
Judicial forum for disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County (CA). Both you and Company consent to venue and personal jurisdiction there.
If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. Cypher Zero Inc.’s failure to enforce any provision of these Terms is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
Cypher Zero Inc. reserves the right to change these Terms from time to time. Any time that we plan on making a change to these Terms in any manner that will significantly change your rights, we will notify you to changes made. If you continue to use the Services after that 30 day period, you consent to the new Terms. Cypher Zero Inc. will always have the latest Terms posted on the website.
The section headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.