Terms of Service Agreement
Effective Date: June 3, 2023
PLEASE READ THESE GENERAL TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY. THIS AGREEMENT BETWEEN YOU (“YOU”, “YOUR” OR “YOURSELF”) AND FINMARK FINANCIAL, INC. (COLLECTIVELY, ITS AFFILIATES, SUCCESSORS, ASSIGNS AND OR AGENTS (“FINMARK,” “COMPANY,” “WE,” “US,” OR “OUR”) IS DEFINED BY (1) THESE TERMS OF SERVICE(“TERMS”) AND (2) THE DOCUMENTS AND POLICIES INCORPORATED AND REFERENCED IN THESE TERMS (THE “AGREEMENT”).
THIS AGREEMENT GOVERNS YOUR USE OF OR INTERACTIONS WITH PRODUCTS, SERVICES, OR OTHER OFFERINGS THROUGH FINMARK (COLLECTIVELY, THE “SERVICE”), INCLUDING BUT NOT LIMITED TO OUR FINMARK SERVICE, THE FINMARK WEBSITE AND ANY OTHER WEBSITES OF COMPANY, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”), COMPANY MOBILE APPLICATIONS, ANY SERVICES GOVERNED BY INTERNATIONAL SUPPLEMENTS (“INTERNATIONAL SERVICES”), YOUR FINMARK ACCOUNT AND/OR ANY OTHER FEATURES, FUNCTIONALITIES OFFERS OR PROMOTIONS THROUGH THE COMPANY. ALL DEFINED TERMS HAVE THE MEANING GIVEN THEM IN THESE TERMS, UNLESS OTHERWISE INDICATED, YOU SHOULD READ THIS AGREEMENT CAREFULLY. THE INFORMATION ON THE SERVICE IS CONTROLLED BY THE COMPANY.
WHEN YOU AGREE TO THESE TERMS AND ACCEPT THIS AGREEMENT, YOU DO SO ON BEHALF OF YOURSELF AND ANY PERSON THAT YOU ENTITLE OR AUTHORIZE TO USE YOUR FINMARK ACCOUNT (WITH YOU, EACH A “USER” OF YOUR FINMARK ACCOUNT), AS WELL ON BEHALF OF YOUR CUSTOMER(S), YOUR VENDOR(S), AND EMPLOYEE(S) TO THE EXTENT PROVIDED IN THESE TERMS. YOU ARE RESPONSIBLE FOR OBTAINING ALL CONSENT AND AUTHORIZATIONS NEEDED TO ACCEPT THIS AGREEMENT FOR OTHERS. FOR PURPOSES OF THIS AGREEMENT, EMPLOYEES ARE YOUR EMPLOYEES, CUSTOMERS ARE THIRD PARTIES THAT YOU RECEIVE PAYMENTS FROM AND AND VENDORS ARE THIRD PARTIES THAT YOU MAKE PAYMENTS TO AND WHOSE INFORMATION WILL BE SHARED WITH FINMARK IF YOU CHOOSE TO SYNCHRONIZE YOUR FINMARK ACCOUNT WITH YOUR PAYROLL SOFTWARE OR ACCOUNTING SOFTWARE.
BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR COMPLETING THE REGISTRATION PROCESS AND/OR BROWSING THE WEBSITE YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICEPERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT COMPANY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 7.6 (AUTOMATIC RENEWAL) BELOW.
THROUGH THIS AGREEMENT, YOU CONSENT TO ACCEPT ELECTRONIC COMMUNICATIONS AND OTHER COMPANY COMMUNICATIONS AS DETAILED IN SECTION 1.4 (COMPANY COMMUNICATIONS) OF THIS AGREEMENT.
USING THE SERVICE ON BEHALF OF ANOTHER. If You use the Service on behalf of another, whether a natural person (an “Individual”) or legal non-natural person or entity (an “Organization”), You represent and warrant that You: (1) are duly authorized and empowered by and for that Individual or Organization to agree to these Terms and accept this Agreement on behalf of the Individual or Organization and (2) accept this Agreement on behalf of the Individual or Organization, unless the Individual or Organization has a separate paid contract with Finmark, in which event the terms of that separate paid contract will control. You also represent and warrant that You are duly authorized and empowered to use the Service on behalf of the Individual or Organization.
AGREEMENT TO ARBITRATE. You understand that this Agreement contains an agreement to arbitrate disputes (“Agreement to Arbitrate”), and You agree to the Agreement to Arbitrate as well as the included jury trial and class action waiver.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms or will be presented to You for Your acceptance when You sign up to use the supplemental Service. If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Agreement includes and You are consenting to these Supplemental Terms:
PLEASE NOTE THAT This Agreement (including adding or deleting any terms) as well as the Company’s policies related to the Service) IS subject to change by the Company at any time, in its sole discretion. When changes are made, the Company will post revised Terms of Service at the Website and/or within the Service, and, and will provide notice to You of material changes to this Agreement. We will also update the “Last Updated/Effective Date” date at the top of the Terms of Service Agreement. If We make any material changes, and You have registered with Us to create an Account (as defined in Section 2.1 (Registering Your Account) below), the Company will also send an email to You at the last email address You provided to Us pursuant to the Agreement. The Company may require You to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/ or the Services is permitted. You will be deemed to have accepted and agreed to any revisions or changes to this Agreement at the time of (i) Your electronic acceptance of the revised, changed or new Agreement, or (ii) Your use if the Service after the effective date of the revised, changed or new Agreement. If You do not agree to any change(s) after receiving a notice of such change(s), You shall stop using the Website, the Application and/or the Service. Otherwise, Your continued use of the Website, and/or Services constitutes Your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. USE OF THE SERVICES AND COMPANY PROPERTIES. The Application, the Software, the Widget, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “Company Property” and collectively, the “Company Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, the Company grants You a limited license to reproduce portions of Company Properties for the sole purpose of using the Services for Your personal or internal business purposes. Unless otherwise specified by the Company in a separate license, Your right to use any and all Company Properties is subject to the Agreement.
1.1. Application License. Subject to Your compliance with the Agreement, the Company grants You a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that You own or control and to run such copy of the Application solely for Your own internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), You will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), You may have additional license rights with respect to use of the Application on a shared basis within Your designated family group.
1.2. Updates. You understand that Company Properties are evolving. As a result, the Company may require You to accept updates to Company Properties that You have installed on Your computer or mobile device. You acknowledge and agree that Company may update Company Properties with or without notifying You. You may need to update third-party software from time to time in order to use Company Properties.
1.3. Certain Restrictions. The rights granted to You in the Agreement are subject to the following restrictions: (i) You shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties, including the Website; (ii) You shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of Company; (iii) You shall not use any metatags or other “hidden text” using Company’s name or trademarks; (iv) You shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties; (v) You shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that We grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) except as expressly stated herein, no part of Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (vii) You shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties. Any future release, update or other addition to Company Properties shall be subject to the Agreement. Company, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Company Property terminates the licenses granted by Company pursuant to the Agreement.
1.4. Company Communications. By entering into this Agreement or using the Company Properties, You agree to receive communications from Us, including via email, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Us and our affiliated companies may include but are not limited to: operational communications concerning Your Account or the use of the Company Properties, updates concerning new and existing features on the Company Properties, communications concerning promotions run by Us or our third-party partners, and news concerning the Company and industry developments. Standard text messaging charges applied by Your cell phone carrier will apply to text messages that We send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE COMPANY PROPERTIES OR RELATED SERVICES.
2.1. Registering Your Account. In order to access certain features of Company Properties You may be required to register as a User. For purposes of the Agreement, a “ User” is a user who has registered an account on the Website (“Account”) or has an account with the provider of the Application for the user’s mobile device.
2.2. Account Administrators. Each account registered with Finmark must have at least one User in the “Administrator” role to manage and control access to the Finmark account. The Administrator may invite and authorize other Users to access, establish login credentials for, and use the Finmark account. The Administrator may revoke access and authorization of a User. Information about User(s) and their use of the Service may be provided by Us to the Administrator. If You are an Administrator, You understand and agree that You are responsible for any actions or inactions of a User that are not in compliance with this Agreement.
2.3. Registration Data. In registering an account on the Website, You agree to (i) provide true, accurate, current and complete information about Yourself as prompted by the registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that You are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Company Properties under the laws of the United States, Your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under Your Account. You agree that You shall monitor Your Account to restrict use by minors, and You will accept full responsibility for any unauthorized use of Company Properties by minors. You may not share Your Account or password with anyone, and You agree to (i) notify Company immediately of any unauthorized use of Your password or any other breach of security; and (ii) exit from Your Account at the end of each session. If You provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information You provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate Your Account and refuse any and all current or future use of Company Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than Yourself. You agree that You shall not have more than one Account per platform or SNS at any given time. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Company Properties if You have been previously removed by Company, or if You have been previously banned from any of Company Properties.
2.4. Your Account. Notwithstanding anything to the contrary herein, You acknowledge and agree that You shall have no ownership or other property interest in Your Account, and You further acknowledge and agree that all rights in and to Your Account are and shall forever be owned by and inure to the benefit of the Company.
2.5. Third Party Service Providers. You grant to Finmark and We reserve the right to use third parties to provide or facilitate the Service. If Finmark uses third parties to provide or facilitate the Service, We will remain responsible to You for providing the Service under this Agreement.
2.6. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Company Properties, including but not limited to, a mobile device that is suitable to connect with and use Company Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that You incur when accessing Company Properties.
3. RESPONSIBILITY FOR CONTENT.
3.1. Types of Content. You acknowledge that all Content, including Company Properties, is the sole responsibility of the party from whom such Content originated. This means that You, and not the Company, are entirely responsible for all Content that You upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Company Properties (“Your Content”).
3.2. Storage. Unless expressly agreed to by the Company in writing elsewhere, the Company will use commercially reasonable efforts to store, during Your use of the Company Properties and in accordance with the Terms of Service, Your Content that You Make Available on Company Properties. Other than as stated in the preceding sentence, the Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties. Certain Services may enable You to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If You do not choose, the system may default to its most permissive setting. You agree that Company retains the right to create reasonable limits on Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Company in its sole discretion.
4.1. Company Properties. Except with respect to Your Content and User Content, You agree that Company and its suppliers own all rights, title and interest in Company Properties (including but not limited to, any computer code, methods of operation, moral rights, documentation, and Company software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Company Properties. Additionally, all work produced by Company, including (a) all changes to, and improvements to the Website, (b) derivative works created from the data received by Company (including Your Content), or (c) aggregate data generated by Company that may include Your Content, will be owned solely by Company.
4.2. Trademarks. Finmark and all related graphics, logos, service marks and trade names used on or in connection with any Company Properties or in connection with the Services are the trademarks of Company and may not be used without permission in connection with Your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in Company Properties are the property of their respective owners.
4.3. Your Content. Company does not claim ownership of Your Content. However, when You as a Registered User provide Your Content on or in Company Properties, You represent that You own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.4. License to Your Content. Subject to any applicable account settings that You select, You grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, reproduce, modify, and adapt Your Content (in whole or in part) for the purposes of operating and providing Company Properties to You and to our other Registered Users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to You the right to grant the license stated above. You agree that You, not Company, are responsible for all of Your Content that You Make Available on or in Company Properties.
4.5. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at Your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that You have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties and/or Company’s business.
5. USER CONDUCT. As a condition of use, You agree not to use Company Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Company Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Company’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Company; (vi) interferes with or attempt to interfere with the proper functioning of Company Properties or uses Company Properties in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Company Properties.
6. INVESTIGATIONS. Company may, but is not obligated to, monitor or review Company Properties and Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Company does not generally monitor user activity occurring in connection with Company Properties or Content, if Company becomes aware of any possible violations by You of any provision of the Agreement, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate Your license to use Company Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to You.
7. FEES AND PURCHASE TERMS.
7.1. General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for You to secure access to the Services. All fees set forth within and paid by You under the Agreement shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Company’s Software, and, furthermore, any use of Company’s Software by You in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
7.2. Payment. You agree to pay all fees or charges to Your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by Us) or PayPal account of a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs Your use of the designated credit card or PayPal account, and You must refer to that agreement, not this Agreement, to determine Your rights and liabilities. By providing Company with Your credit card number or PayPal account and associated payment information, You agree that Company is authorized to immediately invoice Your Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on Company Properties or by e-mail delivery to You.
7.3. Service Subscription Fees. Prior to the expiration of any trial Services that You may receive, You will be responsible for payment of the applicable fee for any continued Services (each, a “Service Subscription Fee”) and the creation of Your Account and selection of either Your monthly or annual Services package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between You and Company for the Services until Company accepts Your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
7.4. Taxes. The payments required under Section 7.3 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If Company determines it has a legal obligation to collect a Sales Tax from You in connection with this Agreement, Company shall collect such Sales Tax in addition to the payments required under Section 7.3 (Service Subscription Fees) of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and You have not remitted the applicable Sales Tax to Company, You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and You will indemnify Company for any liability or expense Company may incur in connection with such Sales Taxes. Upon Company’s request, You will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that You have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.5. Withholding Taxes. You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Company will be Your sole responsibility, and You will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as We may reasonably request, to establish that such taxes have been paid.
7.6. Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After Your initial subscription period, and again after any subsequent subscription period, Your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Company’s then-current price for such subscription. If You do not wish Your Account to renew automatically, or If You want to change or terminate Your subscription, please contact Company at email@example.com or log in and go to the “Change/Cancel Membership” page on Your “Account Settings” page. If You cancel Your subscription, You may use Your subscription until the end of Your then-current subscription term; Your subscription will not be renewed after Your then-current term expires. However, You will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, You authorize the Company to charge Your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of Your subscription, if Company does not receive payment from Your Payment Provider, (i) You agree to pay all amounts due on Your Account upon demand and/or (ii) You agree that Company may either terminate or suspend Your subscription and continue to attempt to charge Your Payment Provider until payment is received (upon receipt of payment, Your Account will be activated and for purposes of automatic renewal, Your new subscription commitment period will begin as of the day payment was received).
8. INDEMNIFICATION. You agree to full liability and responsibility for Your use of the Service, and You will defend and indemnify the Company and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) Your violation of any portion of this Agreement, or any applicable law or regulation; (ii) Your violation of any third-party right, including any intellectual property right, or publicity, confidentiality, other property or privacy right; or (iii) any dispute or issue between You and any third party. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (without limiting Your indemnification obligations with respect to that matter), and in that case, You agree to cooperate with Our defense of that claim.
9. DISCLAIMER OF WARRANTIES AND CONDITION: AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. From time to time, the Company may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at the Company’s sole discretion. The provisions of this section apply with full force to such features or tools.
10. THIRD-PARTY SERVICES, WEBSITES, AND PRODUCTS.
10.1. Third-Party Services. Through the Service, You may access third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services offered through such third-party platforms (collectively, “Third-Party Services”).
10.2. No Control Over Third-Party Services. As a part of Company Properties, You may have access to materials that are hosted by another party. You agree that it is impossible for the Company to monitor such materials and that You access these materials at Your own risk. Finmark does not have or maintain any control over Third-Party Services, and is not responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third-Party Services, The Company does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third-Party Services.
10.4. Disclaimer of Liability for Third-Party Services. You are solely responsible for taking the precautions necessary to protect Yourself from fraud when using Third-Party Services, and to protect Your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third-Party Services. Finmark disclaims any and all responsibility or liability for any harm resulting from Your use of Third-Party Services, and You irrevocably waive any claim against Finmark with respect to the content or operation of any Third-Party Services. YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.5. Third-Party Software. The software You download consists of a package of components, including certain third-party software (“Third-Party Software”) provided under separate license terms (the “Third-Party Terms”). Your use of the Third-Party Software in conjunction with the Service in a manner consistent with this Agreement is permitted, however, You may have broader rights under the applicable Third-Party Terms and nothing in this Agreement is intended to impose further restrictions on Your use of the Third-Party Software.
10.7. Third-Party Disputes. FINMARK IS NOT AFFILIATED WITH ANY OTHER FINMARK USER, CARRIER, SERVICE PROVIDER, THIRD-PARTY, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY OTHER USER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, YOUR EMPLOYER, IS SOLELY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE COMPANY (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (INCLUDING BUT NOT LIMITED TO DIRECT AND CONSEQUENTIAL DAMAGES AND OTHER SPECIAL, INDIRECT OR INCIDENTAL DAMAGES)) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. THE COMPANY WILL NOT, AND WILL NOT ATTEMPT, TO REVERSE OR OTHERWISE RECOVER ANY PAYMENT OR TRANSACTION THAT IS SUBJECT TO A BONA FIDE DISPUTE BETWEEN YOU AND ANY THIRD PARTY.
10.8. Limited Third-Party Rights to Enforce this Agreement. You acknowledge and agree that certain distributors of the Service, including but not limited to mobile app store providers, such as Apple, Inc. and Google Inc., are intended beneficiaries of this Agreement and have a limited right to enforce this Agreement directly against You. Other than as set out in this Section or in Section 15, this Agreement is not intended to grant rights to anyone except You and the Company, and in no event shall the Agreement create any third-party beneficiary rights. No additional consents are required to exercise any rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement.
10.9. Mobile Applications. When You download a Finmark mobile application (“mobile app”) from the Apple App Store, the Google Play Store, or other authorized app store provider (collectively and individually, “Mobile Provider”) for use on a mobile device, You acknowledge and agree to that this Agreement is between You and the Company only, not the Mobile Provider, and the Mobile Provider is not responsible for the Service or the content thereof. The Mobile Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. You agree that the Mobile Provider is not responsible for addressing any claims by You or any third party relating to the Service or Your possession and/or use of the Service. The Mobile Provider is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service or Your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service through a mobile app.
11. OPEN SOURCE SOFTWARE. The Service may contain or be provided together with open source software. Each item of open-source software is subject to its own license terms, which can be found at: https://finmark.com/open-source-attribution/. If required by any license for particular open source software, Company makes such open source software, and Company’s modifications to that open source software (if any), available by written request to firstname.lastname@example.org. Copyrights to the open-source software are held by the respective copyright holders indicated therein.
12. LIMITATION OF LIABILITY.
12.1. Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU, YOUR ORGANIZATION OR INDIVIDUAL, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. FINMARK WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW.
12.2. Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY TO YOU, YOUR ORGANIZATION OR INDIVIDUAL, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE EXCEED THE TOTAL FEES PAID BY YOU OR YOUR ORGANIZATION TO FINMARK IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT(S) THAT GAVE RISE TO SUCH LIABILITY, OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. You acknowledge that each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is an essential element of these Terms and is intended to and does allocate the risks reasonably between the parties under this Agreement, and that in the absence of such limitations the pricing and other provisions in these Terms would be substantially different. Each of these provisions is severable and independent of all other provisions of this Agreement. All limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies will remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, LIABILITY OR CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, IN THOSE JURISDICTIONS, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.
12.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
13. TERM AND TERMINATION.
13.1. Term. The Agreement commences on the date when You accept them (as described in the preamble above) and remain in full force and effect while You use Company Properties, unless terminated earlier in accordance with the Agreement.
13.2. Prior Use. Notwithstanding the foregoing, You hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (i) the date You first used Company Properties or (ii) the date You accepted the Agreement, and will remain in full force and effect while You use any Company Properties, unless earlier terminated in accordance with the Agreement.
13.3. Termination of Services by Company. If timely payment cannot be charged to Your Payment Provider for any reason, if You have materially breached any provision of the Agreement, or if Company is required to do so by law (e.g., where the provision of the Website, the Application, the Software or the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to You. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to You or any third party for any termination of Your Account. IF YOU HAVE PAID IN ADVANCE FOR THE MONTH OR THE YEAR, AND TERMINATION OCCURS BEFORE THE END OF THE TERM, DON’T GET A REFUND
13.4. Termination of Services by You. If You want to terminate the Services provided by Company, You may do so by (i) notifying Company at any time and (ii) closing Your Account for all of the Services that You use. Your notice should be sent, in writing, to the Company’s address set forth below. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Company will refund Your Service Subscription Fee, if already paid pursuant to Section 7.2 (Payment) or 7.3 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. IF YOU HAVE PAID IN ADVANCE FOR THE MONTH OR THE YEAR, YOU DO NOT GET A REFUND IF YOU CANCEL BEFORE THE END OF THE TERM. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.6 (AUTOMATIC RENEWAL).
13.5. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of Your password and all related information, files and Content associated with or inside Your Account (or any part thereof), including Your Content. Upon termination of any Service, Your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Company will not have any liability whatsoever to You for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13.6. No Subsequent Registration. If Your registration(s) with, or ability to access, Company Properties or any other Company community, is discontinued by Company due to Your violation of any portion of the Agreement, the Company’s Acceptable Use Policy or for conduct otherwise inappropriate for the community, then You agree that You shall not attempt to re-register with or access Company Properties or any Company community through use of a different member name or otherwise, and You acknowledge that You will not be entitled to receive a refund for fees related to those Company Properties to which Your access has been terminated. In the event that You violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to You.
14. DISPUTE RESOLUTION.
14.1. Mandatory Arbitration of Disputes. YOU AND THE COMPANY EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE, THE WEBSITE, OR THIS AGREEMENT (A “CLAIM”) WILL BE RESOLVED ON AN INDIVIDUAL BASIS BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT. You and the Company agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision and that You and the Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award (although the arbitrator must abide by the contractual limits on damages in this Agreement) and must enforce applicable statutes of limitation and legal defenses.
14.2. Class Action Waiver. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND THE COMPANY AGREE THAT CLASS ACTIONS, CLASS ARBITRATIONS, REPRESENTATIVE ACTIONS, AND/OR CONSOLIDATION OF ACTIONS OR ARBITRATIONS ARE NOT ALLOWED. If this specific Class Action Waiver provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
14.3. Notice of Claim and Good Faith Efforts to Resolve a Claim. If You intend to seek arbitration, You must first send a written notice of Your Claim (“Notice”) to the Company. A Notice, whether sent by You or the Company, must describe: (a) the nature and basis of the Claim; and (b) the remedy sought. You and the Company agree to make good faith efforts to resolve the Claim directly. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process set forth in this section. If We do not reach an agreement within 60 days after the Notice is received, You or the Company may commence an arbitration proceeding by filing a Demand for Arbitration or, alternatively, by filing a Claim in small claims court. If a Claim qualifies for small claims court, but a party commences an arbitration proceeding, You and the Company agree that either party may elect instead to have the Claim resolved in small claims court, and upon written notice of a party’s election, the American Arbitration Association (“AAA”) will administratively close the arbitration proceeding. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the Claim should proceed in arbitration.
14.4. Arbitration Procedures. A party who wishes to commence arbitration must submit a written Demand for Arbitration to the AAA and give notice to the other Party. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration between You and the Company will be administered by the AAA before a single arbitrator under the AAA Commercial Arbitration Rules and Mediation Procedures, unless the Claim is by or against a natural person and involves a product or service for personal or household use, in which case the arbitration shall be governed by the AAA Consumer Arbitration Rules (collectively, “AAA Rules”), which are available at https://www.adr.org/Rules or by calling 1-800-778-7879, except as modified by this Agreement.
The arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. Judgment on any award may be entered in any court having jurisdiction. This Agreement shall not preclude any party to the arbitration from at any time seeking injunctions or other forms of equitable relief in aid of arbitration from a court of appropriate jurisdiction including whether a Demand for Arbitration is filed in violation of this Agreement.
14.5. Injunctive and Declaratory Relief. Except as provided elsewhere in this Agreement, the arbitrator shall determine all issues of liability on the merits of any Claim asserted by You or Finmark and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claim. To the extent that You or Finmark prevail on a Claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual Claims in arbitration. Before a court of competent jurisdiction issues any public injunctive relief, it shall review the factual findings of the arbitration award on which any injunction would issue with no deference to the arbitrator. Notwithstanding any other provision of this Agreement, We each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property.
14.6. Arbitration Costs. Payment of all filing, administrative, and arbitrator fees will be governed by the AAA Rules. Finmark will reimburse You for the AAA filing fee up to the amount of the filing fee You would have incurred if You had brought Your Claim in Court. However, if the arbitrator finds that either the substance of Your Claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), You agree to reimburse the Company for any fees paid on Your behalf that would otherwise be Your obligation under the AAA Rules. The parties agree that the AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under the AAA Rules where it deems appropriate, provided that such modification does not increase the AAA fees to You or Finmark and You and Finmark waive any objection to such fee modification.
14.7. Severability. With the exception of the provisions in the Class Action Waiver section of this Agreement, if any part of this arbitration provision is found to be invalid or unenforceable, the remaining provisions of this Agreement will still apply.
15. GENERAL PROVISIONS.
15.1. Electronic Communications. The communications between You and Company may take place via electronic means, whether You visit Company Properties or send Company emails, or whether Company posts notices on Company Properties or communicates with You via email. For contractual purposes, You (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
15.2. Release. You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from Your use of Company Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or Your use of Company Properties. If You are a California resident, You hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
15.3. Assignment. The Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.4. Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.5. Questions, Complaints, Claims. If You have any questions, complaints or claims with respect to Company Properties, please contact Us at: email@example.com . We will do our best to address Your concerns. If You feel that Your concerns have been addressed incompletely, We invite You to let Us know for further investigation.
15.6. Governing Law and Choice of Forum. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, COMPANY PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both You and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Fairfax County, Virginia. The Terms and any action related thereto will be governed and interpreted by and under the laws of the state of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
15.7. Language. If the Company provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail.
15.8. Notice. Where Company requires that You provide an email address, You are responsible for providing Company with Your most current email address. In the event that the last e-mail address You provided to Company is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to the Company at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.9. Waiver. The waiver of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except as otherwise stated in this Agreement, the exercise of any remedy under this Agreement will be without prejudice to other remedies available under this Agreement or otherwise.
15.10. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.
15.11. Export Control. You may not use, export, import, or transfer Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which You obtained Company Properties, and any other applicable laws. In particular, but without limitation, Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Company Properties, You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by the Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.12. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
16. INTERNATIONAL PROVISIONS. The following provisions shall apply only if You are located in the countries listed below.
16.1. United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
16.2. Germany. Notwithstanding anything to the contrary in Section 10 (Limitation of Liability), Company is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
End of Agreement