This Website is offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.
Accessing the Website and Account Security
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You are responsible for:
- Making all arrangements necessary for you to have access to the Website.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Intellectual Property Rights
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
You must not:
- Modify copies of any materials from this site.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.
If you wish to make any use of material on the Website other than that set out in this section, please address your request to: firstname.lastname@example.org.
The Company name and the name Darin Newsom and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website or expose them to liability.
Additionally, you agree not to:
- Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Website.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Website.
The Website may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website.
Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose. You represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.
Monitoring and Enforcement; Termination
We have the right to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
Reliance on Information Posted
The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
Changes to the Website
We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
Information About You and Your Visits to the Website
Linking to the Website and Social Media Features
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
We may disable all or any social media features and any links at any time without notice in our discretion.
Links from the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
The owner of the Website is based in the state of Nebraska in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION OR OTHERWISE WILL NOT BE GREATER THAN USD ONE HUNDRED DOLLARS (USD $100).
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Governing Law and Jurisdiction
Limitation on Time to File Claims
Waiver and Severability
Your Comments and Concerns
This website is operated by Darin Newsom Analysis Inc.
All feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: email@example.com
- us offline or through any other means, including on any other website operated by the Company or any third party (including our affiliates and subsidiaries); or
- any third party (including our affiliates and subsidiaries), including through any application or content (including advertising) that may link to or be accessible from or on the Website, for example, third party payment service providers used in connection with your payment for any Service.
A separate agreement governs the access and use of the Service and the Website.
Children Under the Age of 13
Our Website is not intended for children under 13 years of age. No one under age 13 may provide any personal data to or on the Website. We do not knowingly collect personal data from children under 13. If you are under 13, do not use or provide any information on this Website or on or through any Service on the Website, use any of the interactive or public comment features of this Website or provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or user name you may use. If we learn we have collected or received personal data from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us at firstname.lastname@example.org
California residents under 16 years of age may have additional rights regarding the collection and sale of their personal data. Please see Your California Privacy Rights for more information.
Information We Collect About You and How We Collect It
We collect several types of information from and about users of our Website, including information:
- by which you may be personally identified, such as name, postal address, e-mail address, telephone number, (“personal data”);
- that is about you but individually does not identify you; and/or
- about your internet connection, the equipment you use to access our Website and usage details.
We collect this information:
- Directly from you when you provide it to us.
- Automatically as you navigate through the Website. Information collected automatically may include usage details, IP addresses, and information collected through cookies, web beacons, and other tracking technologies.
- From third parties, for example, our business partners.
Information You Provide to Us
The information we collect on or through our Website may include:
- Information that you provide by filling in forms on our Website. This includes information provided at the time of registering to use our Website, subscribing to our Service, posting material, or requesting further services. We may also ask you for information when you report a problem with our Website.
- Records and copies of your correspondence (including email addresses), if you contact us.
- Your search queries on the Website.
Information We Collect Through Automatic Data Collection Technologies
As you navigate through and interact with our Website, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
- Details of your visits to our Website, including traffic data, logs, and other communication data and the resources that you access and use on the Website.
- Information about your computer and internet connection, including your IP address, operating system, and browser type.
The information we collect automatically may include personal data or we may maintain it or associate it with personal data we collect in other ways or receive from third parties. It helps us to improve our Website and to deliver a better and more personalized service, including by enabling us to:
- Estimate our audience size and usage patterns.
- Store information about your preferences, allowing us to customize our Website according to your individual interests.
- Speed up your searches.
- Recognize you when you return to our Website.
We do not control these third parties’ tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly. For information about how you can opt out of receiving targeted advertising from many providers, see Choices About How We Use and Disclose Your Information.
How We Use Your Information
We use information that we collect about you or that you provide to us, including any personal data:
- To present our Website and its contents to you.
- To provide you with the Service and other information or products that you request from us.
- To fulfill any other purpose for which you provide it.
- To provide you with notices about your account.
- To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
- To notify you about changes to our Website or any products or services we offer or provide though it.
- To conduct research and development to enhance, evaluate and improve the Website and Service.
- To allow you to participate in interactive features on our Website.
- In any other way we may describe when you provide the information.
- For any other purpose with your consent.
- As required by applicable law, legal process or regulation.
- To investigate and help prevent security issues and abuse.
We may also use your information to contact you about our own and third-parties’ goods and services that may be of interest to you. If you do not want us to use your information in this way, please contact us at email@example.com and we will update your user preferences in your account profile. For more information, see Choices About How We Use and Disclose Your Information.
We may use the information we have collected from you to enable us to display advertisements to our advertisers’ target audiences. Even though we do not disclose your personal data for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.
Disclosure of Your Information
We may disclose aggregated information about our users, and information that does not identify any individual, without restriction.
- To our subsidiaries and affiliates.
- To contractors, service providers, and other third parties we use to support our business and who are bound by contractual obligations to keep personal data confidential and use it only for the purposes for which we disclose it to them.
- To third parties to market their products or services to you if you have not opted out of these disclosures. For more information, see Choices About How We Use and Disclose Your Information.
- To fulfill the purpose for which you provide it.
- For any other purpose disclosed by us when you provide the information.
- With your consent.
We may also disclose your personal data:
- To comply with any court order, law, or legal process, including to respond to any government or regulatory request.
- To enforce or apply our terms of us and other agreements, including for billing and collection purposes.
- If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of the Company, our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.
Choices About How We Use and Disclose Your Information
We strive to provide you with choices regarding the personal data you provide to us. We have created mechanisms to provide you with the following control over your information:
- Promotional Offers from the Company. If you do not wish to have your email address/contact information used by the Company to promote our own or third parties’ products or services, you can opt-out by sending us an email stating your request to firstname.lastname@example.org. If we have sent you a promotional email, you may send us a return email asking to be omitted from future email distributions. This opt out does not apply to information provided to the Company as a result of a product purchase, warranty registration, product service experience or other transactions.
We do not control third parties’ collection or use of your information to serve interest-based advertising. However, these third parties may provide you with ways to choose not to have your information collected or used in this way.
California residents may have additional personal fsys rights and choices. Please see Your California Privacy Rights for more information.
Accessing and Correcting Your Information
You may send us an email at email@example.com to request access to, correct or delete any personal data that you have provided to us. We cannot delete your personal data except by also deleting your user account. We may not accommodate a request to change information if we believe the change would violate any law or legal requirement or cause the information to be incorrect.
Your California Privacy Rights
If you are a California resident, California law may provide you with additional rights regarding our use of your personal data. To learn more about your California privacy rights, visit https://oag.ca.gov/privacy/ccpa.
We have implemented measures designed to secure your personal data from accidental loss and from unauthorized access, use, alteration, and disclosure. The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our Website, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. We urge you to be careful about giving out information in public areas of the Website like message boards. The information you share in public areas may be viewed by any user of the Website.
Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your personal data, we cannot guarantee the security of your personal data transmitted to our Website. Any transmission of personal data is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.
Terms of Service
Darin Newsom Inc. (“Provider”) provides its Service (as defined below) to you (“Customer”) through its web site located at http://darinnewsom.com (”Site”), subject to these Terms of Service (“Agreement”). This Agreement constitutes a binding legal contract that governs Customer’s purchase and ongoing use of and access to the Service and Site. Customer must accept the terms of this Agreement before Customer may access or use the Service and Site. Customer accepts the terms of this Agreement by: (a) clicking to accept or agree where such option is made available to Customer; or (b) actually using or accessing the Service and Site.
By accepting this Agreement, or by accessing or using the Service or Site, Customer represents and warrants the following: (1) Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (2) Customer has read, understands, and hereby agrees to be legally bound by this Agreement; and (3) the information Customer provides in registering for the Service is accurate, complete, and is Customer’s or within Customer’s right to use and disclose to Provider.
(a) “Confidential Information” means non-public information that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information of Provider includes, without limitation, the Services, Documentation and Provider IP, including any video clips, written works, commentary, analysis, or code and all algorithms, methods, techniques, and processes revealed or utilized therein.
(b) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Services.
(c) “Documentation” means Provider’s then-current end user documentation relating to the Services available on the Site.
(d) “Effective Date” means the date of acceptance of this Agreement by Customer.
(e) “Services” means the commentary, analysis or other services offered through the Site.
(f) “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer in connection with the foregoing, including without limitation, all know-how, ideas, commentary, analysis, content, data, written or oral works, video clips, media, art, copyrights, names, marks, or other derivative works thereof. For the avoidance of doubt, Provider IP does not include Customer Data or Third-Party Materials.
(g) “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all of the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term of this Agreement, solely for use by Customer in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use and Customer shall not grant any other person access to the Services or share or otherwise disclose to any other person Customer’s account login information.
(b) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement and, in the case of Third-Party Materials, the applicable third-party terms and conditions. Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services, Documentation Provider IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, Documentation or Provider IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services, Documentation or the Provider IP; or (v) use the Services, Documentation or Provider IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP or Third-Party Materials. All right, title, and interest in and to the Provider IP and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer Data shall be the sole property of Customer; however, Provider may aggregate anonymous statistical data regarding use and functioning of its system by its various licensees, and all such data (none of which shall be considered Customer Data), will be the sole property of Provider.
(d) Provider IP. Customer acknowledges that, as between Provider and Customer, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, is using the Provider IP for fraudulent or illegal activities; (D) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Customer’s access to or use of any Third-Party Materials, or other any third-party services or products required to enable Customer to access the Services; or (iii) as otherwise set forth in this Agreement (each a, “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
3. Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from Customer’s access, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
4. Fees and Payments.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Provider hereunder, other than any taxes imposed on Provider’s income.
5. Confidentiality Information. From time to time during the Term, either party may disclose or make available to the other party Confidential Information. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings.
6. Limited Warranties.
(a) Right to Grant Access and Use. Provider warrants that it owns all right, title and interest in and to the Services or has obtained rights in such Services sufficient to grant the access and use granted to Customer under this Agreement. Customer’s exclusive remedy, and Customer’s exclusive obligation, for a breach of the foregoing warranty is set forth in Section 7 (Indemnity).
(b) Disclaimer of Warranties. The limited warranties in this Section 6 are made to Customer exclusively and are in lieu of all other warranties. PROVIDER MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES OR THE DOCUMENTATION PROVIDED UNDER THIS AGREEMENT, IN WHOLE OR IN PART. PROVIDER EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. PROVIDER EXPRESSLY DOES NOT WARRANT THAT THE SERVICES OR THE DOCUMENTATION, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET CUSTOMER’S REQUIREMENTS. PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
(a) Provider Indemnification. Provider will defend, indemnify and hold Customer harmless from and against any loss, cost and expense to the extent arising from a third party claim against Customer that the Provider IP infringes any US patents, copyrights, or trade secrets. Provider’s obligations under this indemnification are expressly conditioned on the following: (i) Customer must promptly notify Provider of any such claim; (ii) Customer must, in writing, grant Provider sole control of the defense of any such claim and of all negotiations for its settlement or compromise (if Customer chooses to represent its own interests in any such action, Customer may do so at its own expense, but such representation must not prejudice Provider’s right to control the defense of the claim and negotiate its settlement or compromise); (iii) Customer must reasonably cooperate with Provider to facilitate the settlement or defense of the claim. Provider will not have any liability hereunder to the extent the claim arises from (a) any modification of the Services or Provider IP by, on behalf of, or at the request of Customer; or (b) the use or combination of the Services or Provider IP with any computer, computer platform, operating system and/or data base management system other than provided by Provider. If any Service or Provider IP is, or in Provider’s opinion is likely to become, the subject of an infringement claim, then Provider, at its sole option and expense, will either: (A) obtain for Customer the right to continue using the Services under the terms of this Agreement; (B) replace the Services with products that are substantially equivalent in function, or modify the Services so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Customer the un-used portion of the Fee, if any, paid to Provider for the Services giving rise to the infringement claim, and discontinue Customer’s use of such Services. THE FOREGOING SETS FORTH PROVIDER’S EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any loss, cost and expense to the extent arising from a claim against Provider that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any claim based on Customer’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
8. Limitations of Liability.
(a) LIMITED LIABILITY OF PROVIDER. THE TOTAL LIABILITY OF PROVIDER, ITS AFFILIATES AND THIRD PARTY LICENSORS IN CONNECTION WITH OR RELATED TO THE SERVICES OR THE PROVIDER IP, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) WILL NOT EXCEED THE FEES PAID OR PAYABLE TO PROVIDER HEREUNDER FOR THE TWELVE-MONTH PERIOD IN WHICH SUCH LIABILITY FIRST AROSE.
(b) EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER, ITS AFFILIATES OR THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
9. Term; Termination.
(a) Term. Customer will have access to the Services subject to an automatic recurring monthly or yearly payment following the Effective Date (“Term”). Except as set forth in Section 9(b), the term of this Agreement cannot be terminated prior to its expiration date.
(b) Right of Termination. If either party breaches any material obligation in this Agreement (including, without limitation, any obligation to pay Fees), and fails to remedy such breach (if such breach can be remedied) within thirty (30) days of receipt of written notice of such breach, the other party may terminate this Agreement.
(c) Effect of Termination. Upon termination of this Agreement by either party, Customer’s license to access and use the Services shall immediately terminate as of the effective date of such termination. Termination of this Agreement will not release either party from making payments which may be owing to the other party under the terms of this Agreement through the effective date of such termination. Termination of this Agreement will be without prejudice to the terminating party’s other rights and remedies pursuant to this Agreement, unless otherwise expressly stated herein.
(d) Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information, limitation of liability, and such other terms which by their nature survive termination, will survive termination or expiration of this Agreement.
10. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by email, read receipt requested; or sent by overnight courier.
11. Force Majeure. Except with respect to the payment of fees hereunder, neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including, without limitation, Acts of God, war, terrorist acts, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing.
12. Assignment. Customer may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Provider, and any attempt at such assignment or transfer will be void.
13. No Waiver. A party’s failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach.
14. Choice of Law; Severability. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Nebraska, without application of any conflict of laws provisions thereof. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect. The United Nations Convention on the International Sale of Goods (CISG) shall not apply to the interpretation or enforcement of this Agreement.
15. Compliance with Laws. Customer will comply with all laws, rules and regulations applicable to the use of the Services including, without limitation, by not submitting any Customer Data that is illegal, defamatory, or that infringes any third party proprietary rights.
16. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Provider reserves the right to modify this Agreement at any time. In the event Provider modifies this Agreement, Customer will be required to click to accept the most recent version of the Agreement the next time Customer logs in. In any event, Customer’s continued access or use of the Service will constitute Customer’s acceptance of the revised Agreement.