Terms and Conditions 2018-03-29T21:30:31+00:00

CELERIUS GROUP, INC.

TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE OR CLICKING TO ACCEPT WHERE SUCH OPTION IS PRESENTED TO YOU, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, FULLY UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER ENTITY YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY TO THESE TERMS OF SERVICE.

These Terms of Service (the “Terms of Service”) are between you, or if accepting on behalf of an entity, such entity (“Client” or “you”) and Celerius Group, Inc. (“FunnelEnvy”, “we”, or “us”). These Terms of Service and any Order Form (as defined below) that references them shall be collectively referred to as the “Agreement.” The Agreement constitutes a legal agreement that governs your access to and use of our Platform and Services (each as defined below).

 

  1. DEFINITIONS

 

1.1 “Data” means data or information that results from the tests run on Platform.

 

1.2 “Fees” means the fees as described in Section 6.4 and detailed in the Order Form.

 

1.3 “Integration Partner” means a third party service provider analytics platform that can integrate with the Platform.

 

1.4 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

 

1.5 “Order Form” means a writing that (a) is executed by Client and FunnelEnvy, (b) references these Terms of Service, (c) describes in reasonable detail either (i) the Services and deliverables, or (ii) the Platform and access levels, if any, (d) specifies the fees to be paid, and (e) includes any attachments to the Order Form that are incorporated by a specific reference in that Order Form. An Order Form may be amended only by written agreement of the parties.  Multiple Order Forms may be effective simultaneously.

 

1.6 “Platform” means the proprietary software that Company develops and hosts, that allows Client online access to run the tests detailed in the current Order Form that generates Data.

 

1.7 “Services” means the consultation with Client, test development, and related services provided by Company that enable Client to generate and analyze Client data.  The features and capabilities included in the Services available to Client shall be limited to those detailed in the then active Order Form.  To the extent Client subscribes to the Platform via an Order Form, “Services” shall also include access to the Platform.

 

1.8 “Term” means the term of this Agreement as defined in Section 10.1.

 

  1. SERVICES

 

2.1 Provision of the Service. Company shall make the Service available to Client during the Term solely for Client’s own internal business purposes as permitted by and subject to this Agreement (including the usage limits stated in the applicable Order Form). Client may permit its employees and others (collectively, “Users“) to use the Service solely on Client’s behalf, provided that Client shall ensure that all such Users comply with the terms of this Agreement and Client will be fully liable for the acts, omissions, or violation of this Agreement by any and all Users. Except for the express licenses granted in this Section 2.1, no other licenses are granted by Company hereunder, by implication, estoppel or otherwise, and all rights not expressly granted herein are reserved. Client understands that the Service may change over time as Company refines and adds more features. Company reserves the right to update and modify the Service at any time, with or without notice, in its sole discretion.

 

2.2 Third Party Services. Company may make available to Client certain Third party products or services for use in connection with the Service, including but not limited to services provided by Integration Partners (“Third Party Services“). Client understands and agrees that Client’s use of those Third Party Services may be subject to additional terms and conditions and policies that are specific to such Third Party Services, and that Client shall be bound by such terms and conditions and policies if Client elects to use such Third Party Services. Company makes no representations or warranties with respect to any Third Party Services, whether express or implied. Client is solely responsible for determining the suitability of any Third Party Services that Client elects to use in connection with the Service. Any and all use of such Third Party Services shall be at Client’s sole risk.

 

  1. REGISTRATION

 

3.1 Accounts.  The Client shall maintain active and accurate accounts with Company, and if applicable, on the Services and with Integration Partners.

 

  1. USE OF THE SERVICES

 

4.1 Restrictions.  Client has no right to transfer, sublicense or otherwise distribute the access to the Services to any third party.  Except as expressly authorized in this Agreement, Client shall not share any information related to the Services with anyone other than employees of Client or Integration Partners, as needed.  Client agrees that Client will not (and will not permit or encourage any Users or other third party to directly or indirectly):

  1. use the Service in any manner or for any purpose other than as expressly permitted by this Agreement;
  2. misuse, modify, alter, tamper with, repair or otherwise create derivative works of the Service other than as specifically authorized in this Agreement;
  3. remove, obscure or alter any proprietary right notice on or in connection with the Service;
  4. use the Service to store or transmit malicious code, files, scripts, agents, or programs, including without limitation viruses, worms, and trojan horses;
  5. interfere with or disrupt, compromise, or degrade the integrity or performance of the Service;
  6. interfere with or materially adversely affect other Users’ use of the Service or the networks or systems of other parties;
  7. use the Service to attempt to access, acquire or otherwise obtain data to which Client is not legally entitled;
  8. access or use the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas;
  9. use the Service in violation of applicable laws, rules, or regulations; or
  10. use the Service to infringe the intellectual property rights, or otherwise violate the rights of others.

 

4.2 Unauthorized Account Use. Client will immediately notify Company of any security breaches, incidents, threats, or vulnerabilities involving the Service or the Platform that come to Client’s attention. In the event of any unauthorized use of a Client’s account, Client will take all steps necessary to terminate such unauthorized use. Additionally, Client will provide Company with such Company may reasonably request.

 

  1. DATA.

 

5.1 Data Collection and Use.  Company shall have the right to collect and analyze data and information related to the provision of the Services (including without limitation the Data and any information derived from the Data) (collectively, the “Content”).  Company has the right to use such Content to optimize, maintain, and troubleshoot the Services, and to disclose such Content in anonymized and aggregated form in connection with Company’s business.

 

  1. CLIENT OBLIGATIONS, FEES AND TAXES

 

6.1 Cooperation and Assistance.  Client shall maintain necessary accounts with and access to Integration Partners to the extent any integration services are listed in any Order Form.  Client represents and warrants that it is authorized to share access to such Integration Partners with Company as needed to fulfill the Services in the Order Form.  As a condition to Company’s obligations hereunder, Client shall at all times: (a) provide Company with good faith cooperation and access to such information as may be reasonably required by Company in order to provide the Services, including, but not limited to, providing registration information and security access to Client infrastructure and Integration Partners accounts; and (b) carry out in a timely manner all other Client responsibilities set forth in this Agreement.  In the event of any delay in Client’s performance of any of the obligations set forth in (a) or (b), or any other delays caused by Client, Company may suspend Client’s access to the Services as reasonably necessary to account for such delays, but such suspension shall not relieve Client of the obligation to pay any fees.

 

6.2 Enforcement.  Client shall ensure that all its employees, consultants, staff, and agents comply with the terms and conditions of this Agreement, including, without limitation, with Client’s obligations set forth in Sections 2, 4, 14.2 and 14.3, as applicable.  Client shall promptly notify Company of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Company with respect to: (a) investigation by Company of any suspected or alleged violation of this Agreement and (b) any action by Company to enforce the terms and conditions of this Agreement.  Client shall be liable for any violation of the terms and conditions of this Agreement by any of Client’s employees, consultants, staff, or agents.

 

6.3 Telecommunications and Internet Services.  Client acknowledges and agrees that Client’s use of the Services is dependent upon access to telecommunications and Internet services.  Client shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.  Company shall not be responsible for any lost communications, inability to integrate, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

 

6.4 Fees.  In consideration for Company providing the Services, Client shall pay to Company the Fees specified in the applicable Order Form. Fees may be paid by credit card through Company’s website or upon receipt of an invoice by Company as specified in the Order Form.

 

6.5 Taxes.  All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”).  Client shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Company’s net income.

 

  1. PROPIETARY RIGHTS AND OWNERSHIP

 

7.1 OwnershipAs between Company and Client, the Services (including all copies of the software available therein, as applicable), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Company or its licensors.

 

7.2 Feedback. Company welcomes Client’s suggestions or feedback on how to improve the Platform or the Services. If Client provides any ideas, suggestions or recommendations to Company regarding the Platform or the Services (“Feedback“), Company shall have a perpetual, irrevocable worldwide license to copy, retain, use and incorporate such Feedback in its products and/or services, without payment of royalties or other consideration to Client.

 

  1. CONFIDENTIALITY

 

8.1 Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information.  “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials, whether labeled as proprietary, confidential, or with words of similar meaning or not, and all information that is orally or visually disclosed, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, without limitation personally identifiable information. Company Confidential Information includes, without limitation, the Platform and Services, including any documentation, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Services.  The terms and conditions of this Agreement shall be deemed the Confidential Information of both parties and neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.

 

8.2 Exclusions.  Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

 

8.3 Use and Nondisclosure.  During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement.  Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance.  Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein.  Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.

 

  1. WARRANTY

 

9.1 Warranty for Services.  The Services and the Platform are provided “AS IS”, without warranty of any kind. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES.  WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.  COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

 

  1. TERM AND TERMINATION

 

10.1 Term.  Unless otherwise specified in the Order Form, the “Term” of this Agreement shall be one (1) year starting from the date of execution of this Agreement (the “Effective Date”) and shall automatically renew for additional one (1) year periods (each a “Renewal Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term; provided that Client has an active Order Form throughout the Term with no more than a 30 day break between Order Forms.  In the event a subsequent Order Form is not executed within 30 days, the Term of this Agreement shall run from the Effective Date through the expiration of the most recent Order Form.

 

10.2 Termination for Cause.  Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement or an Order Form and fails to correct the breach within fifteen (15) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.  If Company terminates this Agreement based on Client’s failure to pay Fees required under Section 6.4, then Client shall owe Company all of the fees due for the full Term pursuant to the most current Order Form.

 

10.3 Termination for Insolvency.  Subject to Title 11 of the United States Code, if either party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then the other party may terminate this Agreement upon thirty (30) days’ written notice.

 

10.4 Rights and Obligations Upon Expiration or Termination.  Upon expiration or termination of this Agreement, Client’s right to use the Services and Platform shall immediately terminate. Client shall immediately cease all use of the Services and Platform, and each party shall make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.

 

10.5 Survival.  The rights and obligations of Company and Client contained in Sections 6.4 and 6.5 (Fees and Taxes), 7 (Ownership), (Confidentiality), 10.4 (Rights and Obligations Upon Expiration or Termination), 10.5 (Survival), 12 (Indemnification), 12.3(Limitation of Liability), 14 (Acknowledgement), and 16 (General) shall survive any expiration or termination of this Agreement.

 

  1. 11. COPYRIGHT COMPLAINTS

 

Company respects the intellectual property rights of others and will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to the Company. Pursuant to the Digital Millennium Copyright Act of 1998 (“DMCA”), 17 U.S.C. 512(c)(2), our designated agent for notice of alleged copyright infringement in connection with the Service is:

 

Celerius Group, Inc.

Attn: Copyright Agent

120 S. El Camino Real, Suite 17

Millbrae, CA 94030

 

Company will respond appropriately to DMCA takedown notifications, which Client acknowledges may result in the removal of certain Data from Client’s account. To file a counter notification with the Company to restore any removed content, the requirements specified 17 U.S.C. 512(g)(3) must be fulfilled. The text of this statute can be found at the U.S. Copyright Office web site.

 

  1. INDEMNIFICATION

 

12.1 Indemnification by Client. Client shall defend (or settle), indemnify and hold harmless the Company, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Client’s use of the Services (other than any claim for which Company is responsible under Section 12.2); (ii) Client has breached any terms or conditions of, or caused any damage to, the Services; or (iii) Client has breached any term or condition of this Agreement.  Client’s obligations under this Section 12.1 are contingent upon: (a) Company providing Client with prompt written notice of such claim; (b) Company providing reasonable cooperation to Client, at Client’s expense, in the defense and settlement of such claim; and (c) Client having sole authority to defend or settle such claim.

 

12.2 Indemnification by Company.  Company shall defend (or settle) any suit or action brought against Client to the extent that it is based upon a claim that the Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Client.  Company’s obligations under this Section 12.2 are contingent upon: (a) Client providing Company with prompt written notice of such claim; (b) Client providing reasonable cooperation to Company, at Company’s expense, in the defense and settlement of such claim; and (c) Company having sole authority to defend or settle such claim.  In the event that Company’s right to provide the Services is enjoined or in Company’s reasonable opinion is likely to be enjoined, Company may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Client.  THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.  Company shall have no liability under this Section 12.2 to the extent that any third-party claims described herein are based on use of the Services or Platform in a manner that violates this Agreement or the instructions given to Client by Company.

 

  1. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 4, 6.4, 6.5, 8, 15.1 OR 15.2 OR OBLIGATIONS ARISING OUT OF SECTION 12, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY 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.

 

EXCEPT FOR WITH RESPECT TO LIABILITY ARISING FROM A BREACH OF SECTIONS 4, 6.4, 6.5, 8, 15.1 OR 15.2 OR FROM OBLIGATIONS ARISING OUT OF SECTION 12, Notwithstanding any other provisions of this Agreement, in no event shall EITHER PARTY’s aggregate liability to THE OTHER OR any Third party in connection with this Agreement OR CLIENT’S USE OF THE SERVICES exceed the aggregate fees paid by Client IN THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM OR ACTION, regardless of the form OR THEORY of THE claim or action.

 

  1. ACKNOWLEDGEMENT. The parties acknowledge that the limitations and exclusions contained in Section 13 and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall 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.

 

  1. PLATFORM. In the event Client subscribes to the Platform in an Order Form in addition to or separately from receiving Services from the Company, the following provisions shall apply.

 

15.1 Subscription Services.  Client may access and use the Platform solely for its internal business purposes and such access and use is expressly limited to the features and the number of authorized users for which Client has paid fees in accordance with the applicable, active Order Form.

 

15.2 Restrictions.  Client shall not: (a) copy, modify or distribute any portion of the Platform other than as specified herein; (b) disclose, rent, lease, loan or otherwise transfer or provide access to the Platform to any third parties; or (c) transfer any of its rights hereunder (except as specified in Section 16.8).

 

15.3 Acceptable Use Policies.  Client shall use the Platform exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, including the terms and conditions of the Platform.

 

15.4 Delivery.  Client access to the Platform may require the development of certain documented application program interfaces (“API”).  Client will cooperate with Company to enable integration into the Platform through the development of such APIs, as needed.

 

15.5 Service Level Terms.  Company will provide access to the Platform and support pursuant to the Service Level Terms specified in the Order Form.

 

  1. GENERAL

 

16.1 Governing Law.  This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions.  Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the Northern District of California.  Company and Client hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

 

16.2 Modification and Waiver.  Other than as set forth in Section 17, no alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement, or any Order Form, shall be valid or binding on either party unless the same shall have been mutually assented to in writing by both parties. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

 

16.3 Notices.  Other than as set forth in Section 17, all notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses provided by Client and to the Company’s address above, unless Client is otherwise notified of an alternate address.  The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.

 

16.4 Severability.  In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

 

16.5 Force Majeure.  Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

 

16.6 Compliance with Laws.  Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

 

16.7 Relationship Between the Parties.  Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.  Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

 

16.8 Assignment/Successors.  Neither party may assign this Agreement (by operation of law or otherwise) hereunder without the prior written consent of the other party; provided, however, that Company may assign this Agreement to a successor to all or substantially all of its business or assets, whether by sale, merger, or otherwise. Any attempted assignment in violation of this section shall be void.  Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.

 

16.9 Entire Agreement.  This Agreement together with the active Order Form constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.

 

16.10 Non-Exclusive Remedies.  Except as set forth in Section 12.2, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

 

16.11 Equitable Relief.  Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation.  Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

 

16.12 No Third-Party Beneficiaries.  This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

 

16.13 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.

 

16.14 Counterparts.   This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

16.15 Attorneys’ Fees.  If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which the party may be entitled.  Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery, and performance of the Agreement.

 

16.16 Arbitration. The parties agree that any dispute with respect to any matter covered under this Agreement, including any disputed claim for indemnification, will be submitted to mandatory, final and binding arbitration before with the San Francisco, California branch of JAMS (“JAMS”), governed by JAMS’ Commercial Rules of Arbitration applicable at the time of the commencement of the arbitration (the “JAMS Rules”) and heard before one arbitrator.  Company and Client shall attempt to mutually select the arbitrator.  In the event they are unable to mutually agree, the arbitrator shall be selected by the procedures prescribed by the JAMS Rules.  Each party shall bear its own attorneys’ fees, expert witness fees, and costs associated with any arbitration pursuant to this Section 16.16.

 

  1. CHANGES TO TERMS OF SERVICE

 

17.1 Change Procedures. Company is permitted to modify these Terms of Service from time to time by posting a revised version on the Company website or by otherwise notifying you in accordance with Section 16. Changes are effective upon posting or on the date stated in the notice. Your continued use of the Service after the effective date of any changes to the Terms of Service constitutes your agreement to be bound by the changes to the Terms of Service. It is your responsibility to check the Company website regularly for modifications to these Terms of Service.

 

17.2 Material Changes. A “Material Change” means any change to the Terms of Service that would materially reduce Client’s rights or benefits, or materially increase Client’s obligations or liability under this Agreement. Notwithstanding Section 17.1, any changes to the Terms of Service that include a Material Change that have not been affirmatively agreed to by Client will only be effective after thirty (30) days following posting on the Company web site or receipt of the notice of the change (the “Notice Period”). Client shall have the right to opt out of any Material Change by sending notice of its objection to legal@funnelenvy.com within the Notice Period, in which case the Material Change shall not apply to Client for the duration of the Term. However, if Client sends Company such an objection notice, the Company shall have the right to terminate the Agreement by giving Client written notice of termination during the Notice Period or in the five days following the end of the Notice Period