Ubiquiti Services General Terms and Conditions

Last Modified: August 9, 2021

BY CLICKING OR SELECTING THE “I ACCEPT” BUTTON OR OTHERWISE REGISTERING OR USING THE SERVICES, YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, INCLUDING ALL TERMS INCORPORATED BY REFERENCE HEREIN (COLLECTIVELY, THE “AGREEMENT”). IF YOU ARE USING THE SERVICES ON BEHALF OF A COMPANY OR LEGAL ENTITY, YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES.

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS (SEE SECTION 15).

• Definitions

  “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

  “Action” has the meaning set forth in Section 12.1.

  “Affiliate” means, with respect to any Person, any other entity that controls, is controlled by, or is under common control with such Person; provided, for the avoidance of doubt, the Affiliates of Provider shall mean Ubiquiti Inc. and its subsidiaries.

  “Agreement” has the meaning set forth in the preamble.

  “Authorized User” means each of the individuals authorized by Customer to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.

  “Beta Product” means any product that is designated by Provider or its Affiliates as beta, alpha, pilot, early access, UI Labs, limited release, developer preview, non-production, evaluation or by a similar description.

  “Confidential Information” has the meaning set forth in Section 9.1.

  “Coverage Period” means, with respect to a Service, the period begins when Customer first uses or subscribes to such Service and ends on the expiration or termination of such Service in accordance with this Agreement.

  “Covered Product” means an eligible Provider Product associated with an active Service.

  “Customer” has the meaning set forth in the preamble.

  “Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services, including any Personal Information.

  “Customer Failure” has the meaning set forth in Section 4.2.

  “Customer Systems” has the meaning set forth in Section 6.1.

  “Demand” has the meaning set forth in Section 15.2(c).

  “Disclosing Party” has the meaning set forth in Section 9.1.

  “Documentation” means any manuals, instructions or other documents or materials that the Provider or its Affiliates provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services, Provider Products or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

  “Effective Date” means the date that this Agreement is accepted by you as a representative of Customer.

  “Fee Schedule” has the meaning set forth in Section 7.2.

  “Feedback” has the meaning set forth in Section 8.4.

  “Fees” has the meaning set forth in Section 7.1.

  “Force Majeure Event” has the meaning set forth in Section 14.1.

  “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.

  “IdP” means compatible third party online service or website that authenticates users on the Internet by means of publicly available API’s, such as Google, LinkedIn or Facebook.

  “Indemnitee” has the meaning set forth in Section 12.2.

  “Indemnitor” has the meaning set forth in Section 12.2.

  “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

  “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

  “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

  “Permitted Use” means any lawful use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's internal business operations.

  “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

  “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.

  “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.

  “Provider” means Ubiquiti Labs, LLC or another entity that Ubiquiti Inc. may designate from time to time.

  “Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.

  “Provider Indemnitee” has the meaning set forth in Section 12.1.

  “Provider Materials” means the Service Software, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider, its Affiliates or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider's or its Affiliates’ monitoring of Customer's access to or use of the Services, but do not include Customer Data.

  “Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider, its Affiliates or any Subcontractor.

  “Provider Products” means products manufactured by Provider or its Affiliates, which have not been declared End of Life, and purchased, directly or indirectly, by Customer, excluding all Beta Products.

  “Provider Systems” means the information technology infrastructure used by or on behalf of Provider or its Affiliates in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider, its Affiliates or through the use of third-party services.

  “Receiving Party” has the meaning set forth in Section 9.1.

  “Representatives” means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors and legal advisors.

  “Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.

  “Service Software” means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider or its Affiliates provide remote access to and use of as part of the Services.

  “Services” means any service by Provider to which Customer subscribes.

  “Service Description” means the description of the Service as published by Provider or its Affiliates, which may be updated by the Provider or its Affiliates from time to time.

  “Subcontractor” has the meaning set forth in Section 2.4.

  “Term” has the meaning set forth in Section 10.1.

  “Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not developed by Provider or its Affiliates.

• Services.
  • Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the applicable Coverage Period, Provider shall, and shall cause its Affiliates or Subcontractors to, use commercially reasonable efforts to provide to Customer and its Authorized Users the Services in accordance with the applicable Service Description.
  • Exclusions from Services. The Services do not apply to:
    • Installation, removal or disposal of the Covered Product;
    • Use of or modification to the Covered Product in a manner for which the Covered Product or related software is not intended to be used or modified;
    • Third party products or software or their effects on or interactions with the Covered Product or the Services;
    • Damages caused by (a) accident, abuse, misuse, liquid contact, fire, earthquake or other external cause, or (b) operating the Covered Product outside the permitted or intended uses; or
    • Software which is not the latest release.
  • Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider's services to its customers, (ii) the competitive strength of or market for Provider's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.
  • Subcontractors. Provider may from time to time in its discretion engage third parties to perform the Services (each, a “Subcontractor”).
  • Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider or its Affiliates receive a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; (b) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement or the Coverage Period of any Service expires or is terminated; (c) Provider believes that Customer has taken any action that involves the use of abusive, derogatory, insulting, threatening, vulgar or similarly unreasonable language or behavior directed at any of Provider’s or its Affiliates’ employees or representatives whether it be in person, over the phone, or in writing; (d) use of the Services by Customer or any Authorized Users is harmful to, interferes with, or negatively affects Provider’s and its business partners’ services or operations; (e) Customer or any Authorized User generates spam or other abusive messaging or calling, a security risk or a violation of privacy of any Person; (f) Provider believes, in its sole discretion, that Customer or any Authorized User is reselling the Services either alone or as part of any other good or service; (g) Customer has failed to make all required payments, advance payment or deposit, if applicable; (h) Customer or any Authorized User has provided inaccurate or misleading credit information; or (i) Customer or any Authorized User has modified the Covered Product from its original specifications. This Section 2.5 does not limit any of Provider's other rights or remedies, whether at law, in equity or under this Agreement.
  • Identity Provider. The Services may include functionality that enables Customer, at Customer’s option, to connect with certain IdP services or sites, via public facing APIs provided and controlled by the IdP. If an IdP modifies its APIs or equivalents so that they no longer interoperate with the Services, or imposes requirements on interoperability that are unreasonable for the Provider, and if after applying reasonable efforts Provider is unable to overcome such modifications or requirements then, Provider may cease or suspend its provision of interoperability between the Services and the affected IdP services or sites, without liability to Customer. Customer agrees that Provider has no responsibility for the acquisition, development, implementation, operation, support, maintenance or security of any IdP.
  • Operational Products Only. Provider Products that are damaged, defective, or otherwise non-operational prior to the start of the Coverage Period are not eligible for the Services.
• Authorization and Customer Restrictions.
  • Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, during the applicable Coverage Periods, the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.
  • Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.
  • Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, and shall not permit any Person to, except as this Agreement expressly permits:
    • copy, modify or create derivative works or improvements of the Provider Products or Provider Materials;
    • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services, Provider Products or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
    • reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Provider Products or Provider Materials, in whole or in part;
    • bypass or breach any security device or protection used by the Services, the Provider Products or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
    • input, upload, transmit or otherwise provide to or through the Provider Products or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
    • damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Provider Systems or Provider's provision of services to any third party, in whole or in part;
    • remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Provider Products or Provider Materials, including any copy thereof;
    • access or use the Services, Provider Products or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
    • access or use the Services, Provider Products or Provider Materials for purposes of competitive analysis of the Services, Provider Products or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage;
    • access or use the Services, Provider Products or Provider Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
    • access or use the Services or Provider Materials in violation of applicable law;
    • otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1; or
    • send or store in the Services any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards.
  • Export Compliance. Customer acknowledges and agrees that access and use of the Services, the Provider Products and Provider Materials may be subject to restrictions under the export control laws and regulations of the United States and other applicable countries, including the U.S. Export Administration Regulations (EAR) administered by the U.S. Department of Commerce’s Bureau of Industry and Security (BIS), the International Traffic in Arms Regulations (ITAR) administered by the U.S. State Department’s Directorate of Defense Trade Controls (DDTC) and the economic sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC). Additional information on these regulations may be found at https://www.bis.doc.gov, https://www.pmddtc.state.gov/ddtc_public, and https://home.treasury.gov/policy-issues/office-of-foreign-assets-control-sanctions-programs-and-information, respectively. Customer represents and warrants that its access and use of the Provider Products or Provider Materials are not prohibited by the export control laws and regulations of the United States and other applicable countries. Customer agrees to comply with all applicable export and re-export control laws, regulations and other restrictions.
  • FCC and Other Compliance. By using the Services, the Provider Products and the Provider Materials, Customer affirms that changes or modifications not expressly approved by the party responsible for Federal Communications Commission (“FCC”) compliance could void the user’s authority to operate the equipment. You hereby agree not to make any such changes or modifications and to operate Provider Products in accordance with applicable law, including the rules set forth by the FCC.
• Customer Obligations.
  • Generally. To receive the Services, Customer agrees to comply with the following:
    • Customer shall at all times during the Term: (a) set up, maintain and operate in good repair all Covered Products and Customer Systems; (b) provide Provider Personnel with such access to Customer Systems as is necessary for Provider to perform the Services; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement;
    • Upon request by Provider or its Affiliates, Customer shall respond to requests for information, including but not limited to the serial number, model, version of the operating system and software installed, information about the symptoms and causes of the issues with the Covered Products, any peripherals devices connected or installed on the Covered Products, any error messages displayed, actions taken before the Covered Products experienced the issue and steps taken to resolve the issue;
    • Customer shall follow instructions from the Provider Personnel, including but not limited to update any software to the currently published releases; and
    • Customer must provide a safe, non-threatening environment for Provider Personnel to provide the Services.
  • Effect of Customer Failure or Delay. Provider, its Affiliates or Subcontractors are not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
  • Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Sections 3.3, 3.4 and 3.5, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
  • Internet Connection. The Services require the use of an Internet connection. Customer is responsible for any service charges for Customer’s internet connection, including any data plan, incurred as a result of using or accessing the Services and acknowledges and agrees that Customer will be solely responsible for all disputes with any internet service or cell phone provider relating to the same. In particular, streaming and viewing videos may incur extra and substantial charges on devices that use a data plan. Provider is not responsible for and does not make any assurances about the availability, functionality, or cost of any internet connection or other data plan.
• Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. NEITHER PROVIDER NOR ITS AFFILIATES HAVE ANY OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
• Customer Data.
  • Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
  • Authorized Users. Customer represents and warrants to Provider that its provision of Customer Data to Provider and instructions for processing such Customer Data in connection with the Services shall comply with all applicable laws, including any privacy and data protection laws. Customer acknowledges that the Services will require Authorized Users to share with Provider certain information which may include Personal Information regarding the Authorized Users solely for the purposes of providing and improving the Services. Prior to authorizing an individual to become an Authorized User, Customer is fully responsible for obtaining the consent of that individual, in accordance with applicable law, to the use of his/her information by Provider in accordance with the Privacy Policy. Customer represents and warrants that all such consents have been or will be obtained prior to authorizing any individual to become an Authorized User. Customer will be fully responsible for Authorized Users’ compliance with this Agreement and any breach of this Agreement by an Authorized User shall be deemed to be a breach by Customer. Provider’s relationship is with Customer and not Authorized Users or third parties using the Services through Customer, and Customer will address all claims raised by its Authorized Users, and third parties using the Services through Customer, directly with Provider. Customer must ensure that all third parties that utilize the Services through Customer agree (a) to use the Services in full compliance with this Agreement, and (b) to the extent permitted by applicable law, to waive any and all claims directly against Provider and its Affiliates related to the Services.
  • Privacy, EULA and Terms of Use. Customer agrees that Provider’s Privacy Policy, End User License Agreement and website Terms of Use, which are listed on the official Ubiquiti website, are hereby incorporated into this Agreement by reference. Customer agrees that the Service is provided from the United States. Customer agrees that its continued use of the Services hereunder constitutes (a) acceptance of the Privacy Policy, End User License Agreement and website Terms of Use, which include additional terms and conditions relating to Provider’s and its Affiliates’ collection, use and disclosure of Customer Data and (b) consent to the storage and Processing of Customer Data in the United States. Provider and its Affiliates reserve the right to store and Process Customer Data outside of the United States, and will use commercially reasonable efforts to notify Customer in advance of such changes.
  • Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
  • Third Party Integration.. Customer may enable integrations between the Services and certain of third party services (each, an “Integration”). By enabling an Integration between the Services and any third party services, Customer is expressly instructing Provider to share the Customer Data necessary to facilitate the Integration. Customer is responsible for providing any and all instructions to such third party service provider about the use and protection of Customer Data. Provider and such third party service providers are not sub-processors of each other.
• Fees; Payment Terms.
  • Fees. Customer shall pay the fees for the Services (“Fees”) in accordance with the Fee Schedule and this Section 7.
  • Fee Increases. The fee schedule (the “Fee Schedule”) for the Services will be provided to Customer in a separate document or listed on Provider’s website. Provider may adjust the Fee Schedule from time to time in its sole discretion. Provider shall use its commercially reasonable efforts to notify Customer in advance of any price change. All payments by Customer are final and non-refundable.
  • 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 Customer hereunder, other than any taxes imposed on Provider's income. If Customer is required to withhold taxes imposed upon Provider for any payment under this Agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which any Services are delivered or obtained, then such payments will be made by Customer on behalf of Provider by deducting them from the payment then due Provider and remitting such taxes to the proper authorities on a timely basis, and the payments provided for under this Agreement will be adjusted upwards appropriately so that Provider actually receives the full amount of the Fees. Customer will provide Provider with official documentation or tax receipts on such withholdings supporting such taxes and such payments as may be required by Provider for its tax records as soon as reasonably possible following payment to the applicable tax authority, and in any event no later than when required by applicable law.
  • Payment. Customer shall pay all Fees on or prior to the due date. Customer shall make all payments hereunder in US dollars by the method specified by Provider. If Customer elects to pay any Fees with a credit card, Customer represents and warrants that Customer is authorized to use the credit card that’s associated with the Customer’s billing account. Customer authorizes Provider to charge for the Services using such credit card, whether on a recurring basis or for an one-time charge.
  • Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
    • Provider may charge interest on the past due amount at the rate of the lower of 1.5% per month calculated daily and compounded monthly or the highest rate permitted under applicable Law;
    • Customer shall reimburse Provider and its Affiliates for all reasonable costs incurred by Provider or its Affiliates in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
    • if such failure continues for thirty (30) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
  • No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
• Intellectual Property Rights.
  • Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials and all enhancements, improvements to, or derivative works of the foregoing, including all Intellectual Property Rights therein, are and will remain with Provider, its Affiliates and the respective rights holders in the Third Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3, 3.4 and 3.5. All other rights in and to the Services and Provider Materials (including Third Party Materials) are expressly reserved by Provider, its Affiliates and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
  • Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
  • Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data to Provider, its Affiliates, Subcontractors and the Provider Personnel as are necessary or useful to (a) perform the Services; (b) enforce this Agreement and exercise its rights and perform its hereunder; and (c) improve the services and products of Provider and its Affiliates.
  • Feedback. Customer and Authorized Users may from time to time provide suggestions, comments or other feedback (“Feedback”) to Provider and its Affiliates with respect to services and products of Provider and its Affiliates. Customer agrees that all Feedback is and shall be given entirely voluntarily. To the extent Customer provides any Feedback to Provider or its Affiliates, Customer hereby assigns to Provider and its Affiliates all right, title and interest therein and thereto, including all Intellectual Property Rights and other proprietary rights therein. To the extent the foregoing assignment is ineffective, Customer hereby grants to Provider and its Affiliates (without obligation or compensation to Customer, or restriction of any kind or nature) a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up license to use, disclose, reproduce, license or otherwise distribute, and exploit Feedback as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. Customer shall not give Feedback that is subject to license terms that seek to require any Provider product, technology, service or documentation incorporating or derived from Feedback, or any Provider’s or its Affiliates’ Intellectual Property Rights, to be licensed or otherwise shared with any third party. For the avoidance of doubt, Customer agrees and acknowledges that the incorporation by Provider and its Affiliates of any Feedback into any Provider products and/or services does not grant Customer any proprietary rights in or to any such products and/or services.
• Confidentiality.
  • Confidential Information. In connection with this Agreement, Provider and its Affiliates (collectively, as the “Disclosing Party”) may disclose or make available Confidential Information to the Customer (as the “Receiving Party”). Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and its Affiliates and the financial terms of the Services are the Confidential Information of Provider and its Affiliates.
  • Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
  • Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
    • not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
    • except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.3;
    • safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
    • ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
  • Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall use commercially reasonable efforts to disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
• Term and Termination.
  • Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect until Provider no longer provides any Service to Customer (the “Term”).
  • Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
    • Provider may terminate this Agreement or the Coverage Period of any Services, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3 (Authorization and Customer Restrictions) or Section 9 (Confidentiality).
    • Provider may terminate this Agreement or the Coverage Period of any Service, effective on written notice to Customer, if Customer breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Provider provides the breaching party with written notice of such breach;
    • Provider may terminate this Agreement or the Coverage Period of any Service at any time and for any reason by giving at least thirty (30) days’ written notice to Customer or immediately if Provider ceases to provide the applicable Service; and
    • either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  • Effect of Expiration or Termination. Upon any expiration or termination of this Agreement or the Coverage Period for any Service, except as expressly otherwise provided in this Agreement, with respect to all affected Services:
    • all rights, licenses, consents and authorizations granted by Provider to Customer hereunder will immediately terminate;
    • subject to Section 10.3(d) below, upon Customer’s written request, Provider shall as promptly as practicable cease all use of Customer Data and Customer's Confidential Information and permanently erase all Customer Data and Customer's Confidential Information from all systems Provider directly or indirectly controls; provided that, for clarity, Provider's obligations under this Section 10.3(b) do not apply to any Resultant Data;
    • Customer shall immediately cease all use of any Services or Provider Materials and (i) return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider's Confidential Information; and (ii) permanently erase all Provider Materials and Provider's Confidential Information from all systems Customer directly or indirectly controls; and (iii) confirm to Provider in writing that it has complied with the requirements of this Section 10.3(c);
    • notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) Provider and its Affiliates may retain Customer Data, in its then current state and solely to the extent and for so long as required by applicable Law; (ii) Provider and its Affiliates may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iii) all information and materials described in this Section 10.3(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
    • Provider may disable all Customer and Authorized User access to the Services and Provider Materials;
    • if Provider terminates this Agreement pursuant to this Section 10, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Provider's invoice therefor.
  • Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 8, Section 9, Section 10.3, this Section 10.4, Section 11, Section 12, Section 13, Section 15 and Section 16.
• Representations and Warranties.
  • Customer Representations and Warranties. Customer represents and warrants to Provider that:
    • If Customer is a legal entity, it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
    • Customer has the full right, power and authority to enter into and perform Customer’s obligations and grant the rights, licenses, consents and authorizations Customer grants or is required to grant under this Agreement;
    • the acceptance of this Agreement by Customer’s representative has been duly authorized by all necessary corporate or organizational action of such party; and
    • when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.
  • Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law. Customer agrees that its use of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Provider with respect to future functionality or features.
  • DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND PROVIDER AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER AND ITS AFFILIATES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER AND ITS AFFILIATES MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS. UNLESS PROHIBITED BY LAW, IN NO EVENT SHALL PROVIDER BE LIABLE, WHETHER OR NOT DUE TO ITS OWN NEGLIGENCE, FOR ANY: ACT OR OMISSION OF A THIRD PARTY; MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, FAILURES TO TRANSMIT, DELAYS, OR DEFECTS IN THE SERVICES; DAMAGE OR INJURY CAUSED BY THE USE OF SERVICES; CLAIMS AGAINST CUSTOMER BY THIRD PARTIES; DAMAGE OR INJURY CAUSED BY A SUSPENSION OR TERMINATION OF SERVICES; OR DAMAGE OR INJURY CAUSED BY FAILURE OR DELAY IN CONNECTING TO ANY EMERGENCY SERVICE.
• Indemnification.
  • Customer Indemnification. Customer shall release, indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee in connection with any claim, suit, action or proceeding (each, an “Action”) by a third party arise out of or relate to any:
    • Customer Data, including any Processing of Customer Data by or on behalf of Provider and its Affiliates in accordance with this Agreement;
    • any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider's and its Affiliates’ compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User;
    • allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
    • negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
  • Indemnification Procedure. Provider shall promptly notify Customer in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1. Provider (the “Indemnitee”) shall cooperate with Customer (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.2 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
• Limitations of Liability.
  • EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  • CAP ON MONETARY LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER FOR SERVICES HEREUNDER DURING THE TWELVE MONTHS PERIOD PRIOR TO THE DATE THAT THE CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OCCURS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  • Exclusive Remedy. If the Services fail to conform to the Service Descriptions and Customer provides written notice of the non-conformance to Provider, then, as Customer’s exclusive remedy and Provider’s sole obligation: Provider will either repair or, at its option, replace the non-conforming Service or, if Provider is unable to correct the non-conformance within (45) forty-five days of receipt of such written notice from Customer, Customer may terminate the applicable Services.
• Force Majeure.
  • No Breach or Default. In no event will Provider or any of its Affiliates be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Provider's or its Affiliates’ reasonable control (a “Force Majeure Event”), including but not limited to, acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, interruptions or failures of telecommunication links due to hostile network attacks, cyberattacks, malware attacks, denial of service attacks or other computer related attacks, or other network congestion, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
• Dispute Resolution.

  PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

  • Summary. Most customer concerns can be resolved quickly and to the customer's satisfaction by contacting Provider. In the unlikely event that Provider is unable to resolve a complaint to Customer’s satisfaction, Customer and Provider agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows 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. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
  • Arbitration Agreement.
    • Provider and Customer agree to arbitrate all disputes and claims between them. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
      1. claims arising out of or relating to any aspect of the relationship between the parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
      2. claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
      3. claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and
      4. claims that may arise after the termination of this Agreement.
    • References to “Provider” and “Customer” include their respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this or prior agreements between the parties. Notwithstanding the foregoing, either party may bring an individualized action in small claims court. Customer agrees that, by entering into this Agreement, Customer and Provider are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
    • A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute. The Notice of Dispute to Provider should be addressed to: Ubiquiti Inc., Customer Arbitration Demand, 685 Third Ave, 27th Fl, New York, NY 10017 with a copy sent to legal@ui.com. The Notice of Dispute must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Provider and Customer do not reach an agreement to resolve the claim within 30 days after the Notice of Dispute is received, Customer or Provider may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Provider or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Provider is entitled.
    • ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, SHALL BE RESOLVED ONLY BY BINDING ARBITRATION, CONDUCTED BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICE (JAMS) (OR THEIR SUCCESSOR). If JAMS is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless Customer and Provider agree otherwise, any arbitration hearings will take place in New York, New York. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If, however, the arbitrator finds that either the substance of Customer’s 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)), Customer agrees to reimburse Provider for its reasonable costs and expenses related to the arbitration proceeding, including but not limited to JAMS filings, administration, arbitrator and other related fees.
    • The arbitrator may award declaratory or injunctive relief only in favor of the party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. CUSTOMER AND PROVIDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Provider agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from arbitration and may be brought in court.
• Miscellaneous.
  • Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
  • Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  • Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer's consent, include Customer's name in its lists of Provider's current or former customers of Provider in promotional and marketing materials.
  • Notices. Notices sent will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the second day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
  • Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
  • Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
  • Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
  • Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider's prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
  • No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  • Amendment and Modification; Waiver. Customer may not amend or modify this Agreement without Provider’s prior written consent. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  • Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. All disputes arising out of or in connection with this Agreement shall be finally settled by binding arbitration in accordance with Section 15. Notwithstanding the foregoing, with respect to any court order or injunctive relief, the parties hereby irrevocably submit to the personal jurisdiction and venue of the courts in New York County, State of New York, USA, with respect to which, to the extent permitted under applicable law, the parties: (a) agree that any action, suit or proceeding relating directly or indirectly to this Agreement will be tried by a judge without a jury; and (b) hereby waive any right to a jury trial in any such action, suit or proceeding.
  • Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.3, Section 3.4, Section 4.3, or Section 8s, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
  • Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
  • Revisions; Continued Use. Provider reserves the right to change any of the terms and conditions contained in this Agreement, including any document incorporated herein by reference, at any time and in its sole discretion. Any changes will be effective upon the earlier to occur of: (a) emailing the revised terms and conditions or notice of such changes to Customer at Customer’s email address; or (b) posting the revised terms and conditions on Provider’s website. Customer is responsible for reviewing any revised terms, conditions, policies, guidelines and information and any notices of revisions. CUSTOMER’S CONTINUED USE OF SERVICES FOLLOWING THE EMAILING OR POSTING OF ANY REVISED TERMS AND CONDITIONS OR ANY NOTICE OF SUCH REVISIONS, WILL CONSTITUTE ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, CUSTOMER MUST STOP ACCEPTING SERVICES FROM PROVIDER, AND PROVIDE WRITTEN NOTICE TO PROVIDER IMMEDIATELY.
  • Government End User. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government Customers as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
  • Schedules. Customer will comply with this Agreement and the terms, conditions, policies and guidelines, rules and other information attached as schedules hereto, which are incorporated herein by reference. To the extent there is a conflict between this Agreement and the schedules, the conflict will be resolved by giving precedence in the order specified in such documents, or if not specified, the following order: the applicable Schedule and this Agreement.

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