IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY.
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE AND/OR BY USING THE SERVICES, YOU ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT.
You may not access any Services unless, and by accessing the Services you represent and warrant that, you (1) if an individual, are at least 18 years of age, (2) are not in any manner affiliated with a direct competitor of Windfall, (3) will not access the Services to monitor their availability, functionality, or for any other benchmarking or competitive purposes, (4) or any entity that you are affiliated with, have not at any time breached a contract with Windfall, and (5) accept and agree to be bound by the provisions of this Agreement.
As used in this Agreement and in any Orders, unless otherwise expressly specified therein:
“Billing Period” means the interval of time for which you are invoiced, as determined by the billing frequency set forth in the applicable Order;
“Content” means the audio and visual information, documents, software, products, services, and other information contained within, or made available to you in the course of using, the Services;
“Customer Data” means any data, information or material provided, submitted, or made available by you to the Services in the course of using the Services.
“Effective Date” means the earlier of (1) the date this Agreement is accepted (2) the date of the applicable Order, or (3) the date you begin using the Services;
“Fees” means all fees and other charges described and otherwise referenced in this Agreement, including, but not limited to the fees set forth in the applicable Order;
“Intellectual Property Rights” means rights in and to inventions (whether or not patentable), patent applications, patents, design rights, rights in and to software code and other works of authorship including copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, trade secret rights, and all other intellectual property rights and forms of protection of a similar nature anywhere in the world;
“Order(s)” means any form evidencing your subscription for the Services which is accepted by Windfall, specifying, among other things, (1) the number of subscriptions and other Services contracted for, (2) the applicable Fees and other charges, (3) the Billing Period, and (4) other terms and conditions as may be agreed upon between the Parties in writing, each such Order to be incorporated into and to become a part of this Agreement;
“Party” or “Parties” mean(s) either Windfall or you, or both, as appropriate;
“Services” means Windfall’s online platform, data, analytics, related third-party services, or other services identified on the Order(s) as services to which you will have access during the Subscription Term, accessible via http://www.windfall.com or another web site or IP address designated by Windfall, and any ancillary service rendered to you by Windfall, to which you are being granted access under this Agreement;
“Subscription Start Date” means the later of (i) the date of the last signature on an applicable Order, or (ii) the date provided in the Subscription Start Date field in an applicable Order;
“Subscription Term(s)” means the period(s) during which the Users are permitted to use the Services as set out in the relevant Order(s) made up of an Initial Term and any Renewal Subscription Term (as such terms are defined in Section 5.1);
“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Services;
“Windfall Technology” means all of Windfall’s proprietary technology (including software, hardware, products, processes, algorithms, user and programming interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), made available to you or otherwise used by Windfall in providing the Services.
2.1 Provision of the Services. We shall provide the Services to you as set forth in the applicable Order, if any, and otherwise subject to this Agreement. During the Subscription Term, we will (a) make the Services available to you pursuant to this Agreement and any applicable Orders, and (b) use commercially reasonable efforts to provide the Services for remote electronic access and use by you and your Users.
2.2 Usage Restrictions. You and your Users will not, directly or indirectly, (1) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or other underlying Windfall Technology; (2) modify, copy, reproduce, display to third parties, translate, or create derivative works based on (i) the Services or (ii) any Windfall Technology; (3) rent, lease, distribute, sell, resell, assign, or otherwise purport to transfer rights to the Services or any Windfall Technology; (4) use the Services or any Windfall Technology for timesharing or service bureau purposes or otherwise for the benefit of any third party; (5) remove any proprietary notices from the Services or any Windfall Technology; (6) publish or disclose to third parties any evaluation of the Services or any Windfall Technology without Windfall’s prior consent, unless you have first provided Windfall with notice of your intent to do so; (7) create any link to the Services or frame or mirror any Content contained on, or accessible from, the Services, without Windfall’s prior written consent; (8) assert, authorize, assist, or encourage any third party to assert, against Windfall or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Windfall Technology you have used; (9) remove, disable, circumvent, or otherwise create or implement any workaround to rights management or security features in or protecting the Services; or (10) use Windfall Technology in any manner or for any other purpose other than as expressly permitted by this Agreement.
2.3 Sensitive Personal Information. You are prohibited from uploading any “sensitive” personally identifiable information to the Services, which may include, but is not limited to, information about yourself or any another person that may relate to health or medical conditions, Protected Health Information (as defined in 45 CFR 160.103), social security numbers or taxpayer identification numbers, driver’s license numbers, information concerning political opinions, criminal charges or convictions, religious or philosophical beliefs, racial or ethnic origin, or other sensitive matters (“Sensitive Personal Information”). If you upload any Sensitive Personal Information to the Services, your account and access to the Services may be terminated immediately. Notwithstanding the foregoing, Windfall is not responsible for any Sensitive Personal Information uploaded to the Services and is under no obligation to ensure that Sensitive Personal Information is not uploaded to the Services.
2.4 Third Party Platforms. You may be permitted, through the functionality of the Services, to access the Services through a third party platform or to link its Services account with its third party platform account (each such platform, a “Third Party Platform”). If you access the Services through a Third Party Platform, you understand and agree that information related to you maintained by or associated with the Third Party Platform (“Third Party Platform Information”) may be transferred or made available to Windfall, and information associated with you in your Windfall account may be transferred or made available to the Third Party Platform. You hereby consent (1) to all such transfers; (2) to Windfall using Third Party Platform Information in connection with its provision of the Services; and (3) to Windfall using Third Party Platform Information and as described in Section 6.2.
3. Use of Services
3.1 Resources. You are responsible for obtaining and maintaining all computer hardware, software, communications equipment, facilities and equipment needed to access the Services, and for paying all third-party access charges (e.g., charges of Internet or telecommunications service providers) incurred in connection with using the Services.
3.2 Your Responsibilities. You are solely responsible for your actions and the actions of your Users (and any of your other employees or agents) while using the Services and the contents of any Customer Data and other information or materials that may be stored or transmitted through your use of the Services. You agree: (1) to abide by all local, state, national, and international laws and regulations applicable to your use of the Services, including the laws and regulations of any country, and including without limitation all laws regarding the transmission of promotional communications and the collection of personal data by or through the Services; (2) not to upload or distribute in any way files that contain viruses, corrupted files, or any other software code that may damage the operation of the Services or any other computers or facilities; (3) not to interfere with or disrupt networks or facilities used in providing, or that are connected to, the Services; (4) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (5) not to interfere with any other customer’s use and enjoyment of the Services or any another person or entity’s use and enjoyment of services provided by Windfall or any third party; and (6) to comply with all applicable regulations, policies and procedures of networks connected to the Services. You acknowledge that the laws and regulations governing the use of the Services may change from time to time. You acknowledge and agree that Windfall neither endorses the contents of any of its customers’ communications, nor assumes any responsibility for the time, place, manner, or contents of any such communications or Customer Data. You further acknowledge and agree that Windfall has the right, but not the obligation, to implement mechanisms to screen, monitor, modify, and remove any Customer Data or other content posted or stored on the Services or transmitted through the Services, at any time, in Windfall’s sole and absolute discretion, without notice.
3.3 Employment Solicitation. For the duration of this Agreement, and for a period of 1 year following termination of this Agreement, (1) you agree not to solicit the employment of any employee of Windfall, and (2) if you are approached by an employee of Windfall concerning employment, you agree to notify Windfall at least 30 days prior to making an offer of employment to such employee.
4. Fees and Payment
4.1 Subscription Fees. You will pay all Fees on the schedule set forth in your Order(s), if any. Windfall reserves the right to modify its Fees and to introduce new Fees at any time, upon at least 30 days’ prior written notice to you and which notice of increase shall constitute good cause for you to exercise your discretion to terminate this Agreement upon 30 days’ prior written notice.
4.2 Billing and Payment. If you are not using the free subscription to the Services, you agree to provide and maintain complete and accurate billing and contact information in the Services. Such information includes purchase order information, a valid and current credit card, or bank account information (“Payment Source(s)”). You agree to and authorize Windfall to invoice or collect payment for all outstanding Fees, on the due date of Fees, from the Payment Sources provided by you. You further agree to consistently maintain a Payment Source or credit balance available to Windfall for payment of Fees. Payment shall be made in U.S. dollars. Customers who are using the free subscription to the Services and have not signed an Order need not comply with this Section 4.2.
4.4 Refund Policy. All transactions between you and Windfall are final. Windfall does not issue refunds for transactions or Services that have been paid for by you, except as otherwise provided.
4.5 Taxes. All Fees are exclusive of applicable state, federal, national, withholding and VAT taxes, and applicable customs duties or tariffs (collectively “Taxes”). You will be responsible for the payment of all Taxes applicable to the Services provided under this Agreement, except for taxes based on Windfall’s income, property and employees.
5. Term and Termination.
5.1 Term. These Terms commence on the Effective Date. Paid subscriptions commence on the Subscription Start Date and continue for the Subscription Term specified in the Order or later, until all subscriptions granted in accordance with this Agreement have expired or been terminated. If you are using the free subscription to the Services and have not signed an applicable Order, these Terms commence on the Effective Date and continue for 12 months thereafter. This Agreement will automatically renew for an additional term that is either (i) equal in length to the Initial Term specified in the applicable Order, or (ii) if no term is specified in any applicable Order, 12 months (each of (i) and (ii) the “Initial Term”). The Agreement continue to automatically renew in the same manner thereafter (each, a “Renewal Subscription Term”). Either Party may prevent such auto-renewal by giving the other Party 30 days’ written notice of its intent not to renew prior to the end of the then-current Initial Term or Renewal Subscription Term, as applicable.
5.2 Termination or Suspension for Cause.
(a) In the event that the other Party has breached a material term of this Agreement, the non-breaching Party may terminate the Agreement by providing 30 days’ prior written notice to the Party committing the breach, which notice shall set forth a description of the breach. If the breach is cured to the reasonable satisfaction of the non-breaching Party, within the above-mentioned 30-day period, the non-breaching Party shall provide notice to the other Party of its satisfaction with the cure and the Agreement shall continue in effect in accordance with its terms as if no breach had occurred. Notwithstanding the foregoing, where the breach is for non-payment, you shall have 10 days following receipt of written notice by Windfall to cure the breach for past due amounts owing before Windfall may terminate the Agreement. Upon termination of this Agreement for cause, if you have not paid all Fees for the then-current Subscription Term, you agree to pay the sum of any unbilled Fees from the then-current Subscription Term, in addition to any unpaid balances at the time of termination of this Agreement.
(b) In the event that: (i) a Party ceases conducting business in the normal course; (ii) a Party becomes insolvent; (iii) a Party admits in writing its inability to meet its debts generally as they become due; (iv) a Party makes a general assignment for the benefit of creditors; (v) a Party suffers or permits the appointment of a receiver, trustee, liquidator, or conservator for its business or assets; (vi) a Party avails itself of, or becomes subject to, any proceeding under the Federal Bankruptcy Act or any other statute of any state relating to insolvency or the protection of rights of creditors; or (vi) proceedings are commenced for the dissolution, winding-up or liquidation of a Party, then, at the option of the other Party, the Agreement shall terminate immediately.
5.3 Customer Data and Anonymized Data. Windfall will retain Customer Data for a period of 30 days after expiration or termination of this Agreement. Notwithstanding the foregoing, Windfall retains all Intellectual Property Rights related to derivative works and may retain all Anonymized Data into perpetuity.
5.4 Effect of Termination. Section 2.2 (Usage Restrictions), Section 4 (Fees and Payment), Section 3.3 (Employment Solicitation), Section 5.4 (Effect of Termination), Section 5.5 (Post-Termination Requirements), Section 6 (Proprietary Rights), Section 7 (Confidentiality, Privacy, and Publicity), Section 8.3 (Warranty Disclaimer), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11 (Resolving Disputes), and Section 12 (General) will survive any termination or expiration of this Agreement. In no event will any termination or expiration of this Agreement relieve you of any obligations or liability accrued prior to termination including, without limitation, the obligation to pay any Fees payable to Windfall.
5.5. Post-Termination Requirements. Promptly following expiration or termination of this Agreement, you agree to delete (and will not keep in your possession, recreate, or deliver to anyone else) any and all Windfall Content, Windfall Technology, and Confidential Information (as defined below).
6. Proprietary Rights
6.1 Intellectual Property Ownership. Windfall (and its licensors, where applicable) will exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to the Services, the Windfall Technology, and any modifications thereto or derivative works thereof. Further, Windfall will exclusively own any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the Services or Windfall Technology (the “Feedback”). You hereby assign, and agree to assign, any and all right, title, and interest, including all related Intellectual Property Rights, in and to the Feedback and any modifications to, or derivative works of, the Services and the Windfall Technology. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the Windfall Technology or the Intellectual Property Rights owned by Windfall or its licensors, where applicable. The Windfall name, the Windfall logo, and the product names and domain names associated with the Services are trademarks of Windfall or third parties, and no right or license is granted to use them. Other trademarks, logos, and trade names that may appear on the Services are the property of their respective owners. The Services, the Windfall Technology and the Intellectual Property Rights that we use to provide the Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Windfall reserves to itself all rights in and to the Services and Windfall Technology not expressly granted to you in accordance with this Agreement.
6.2 Customer Data and Account Information. You will retain all ownership of Customer Data that you submit to the Services in the course of this Agreement. You, not Windfall, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all Customer Data. You will ensure that you and Windfall have the right to use Customer Data as contemplated by this Agreement, and you hereby grant, and agree to grant, Windfall the right to use all Customer Data for the purposes set forth in this Agreement. Windfall will take commercially reasonable measures to protect Customer Data on the Services. However, Windfall is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Customer Data. Except as permitted in this Agreement, Windfall will not willfully (1) edit or delete Customer Data unless (a) authorized by you, (b) Windfall is required to do so by law, or (c) in the good faith belief that such action is necessary to: (i) conform with applicable laws or comply with legal process served on Windfall, (ii) protect and defend the rights or property of Windfall, or (iii) enforce this Agreement; or (2) disclose Customer Data unless (a) authorized by you, (b) Windfall is required to do so by law, or (c) in the good faith belief that such action is necessary to conform with applicable laws or comply with legal process served on Windfall. You grant to Windfall an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide license, with the right to sublicense, use, reproduce, publish, distribute, perform, anonymize, and create derivative works from Customer Data; provided that such Customer Data will be (a) de-identified such that no person or entity can be identified, and (b) combined with the data of other customers or additional data sources (“Anonymized Data”). Windfall may access Customer Data to service or respond to technical issues with the Services.
7. Confidentiality, Privacy and Publicity
7.1 Confidentiality. “Confidential Information” means any information that relates to the actual or anticipated business, research, or development of Windfall and any proprietary information, trade secrets, and know how of Windfall that is disclosed to you by Windfall, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes, but is not limited to, research, product plans, products, services, customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing, finances, and other business information, along with information received from third parties for which Windfall has confidentiality obligations. As between you and Windfall, Confidential Information is the sole property of Windfall. Confidential Information does not include any information that: (1) was publicly known and made generally available in the public domain prior to the time Windfall disclosed the information to you, (2) became publicly known and made generally available, after disclosure to you by Windfall, through no wrongful action or inaction of you or others who were under confidentiality obligations, or (3) was in your possession, without confidentiality restrictions, at the time of disclosure by Windfall, as shown by your files and records. You will not disclose any Confidential Information to any third party or use the Confidential Information for any purpose other than use and receipt of the Services in accordance with this Agreement. You will take all reasonable precautions to prevent any unauthorized disclosure of all Confidential Information.
(2) Security. Windfall will maintain the Windfall Technology used to provide the Services at third party colocation, hosting, and telecommunication facilities, where they are subject to commercially reasonable security precautions to prevent unauthorized access to the Services. You acknowledge that, notwithstanding such security precautions, unauthorized third parties may gain access to the Services and to any or all Customer Data.
7.3 Publicity. Windfall may use your name and logo as part of a list of customers and may refer to you as a user of its Services in its advertising and marketing activities. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement (including, without limitation, any dispute under this Agreement), or your subscription to or use of the Services, will be prepared jointly between Windfall and you and will be issued only upon mutual agreement of the Parties.
8. Representations, Warranties and Disclaimers
8.1. Mutual Warranties. Each Party represents and warrants that (1) it has the legal right, power and authority to enter into this Agreement and to perform all of its obligations under this Agreement, and (2) its entrance into this Agreement does not violate any agreement between such Party and any third party.
8.2 Windfall’s Representations & Warranties. Windfall represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof.
8.3 Your Representations and Warranties. You represent and warrant that (i) you own and control all of the rights to the Customer Data that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that Customer Data, to or through the Services; and (ii) the use and posting or other transmission of such Customer Data does not violate this Agreement and will not violate any rights of or cause injury to any person or entity.
8.4 Warranty Disclaimer. WINDFALL AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT. WINDFALL AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA, (2) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED CUSTOMER DATA WILL BE SECURE, COMPLETE, TIMELY, ACCURATE OR RELIABLE, (4) THE QUALITY OF THE SERVICES OR ANY OTHER INFORMATION, ITEMS, OR MATERIALS OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (5) ERRORS OR DEFECTS WILL BE CORRECTED, OR (6) THE SERVICES, THE CONTENT, OR THE EQUIPMENT OR FACILITIES USED TO MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY WINDFALL AND ITS LICENSORS. NO ADVICE, INFORMATION OR ACTION FROM WINDFALL OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.5 Communications Delays and Outages. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, OUTAGES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, TELEPHONY, AND ELECTRONIC COMMUNICATIONS. WINDFALL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.1 Your Indemnification of Windfall. You will indemnify and hold harmless (and, if requested by Windfall, defend) Windfall, its parent organizations, subsidiaries, other corporate affiliates, and licensors, and their respective officers, directors, employees, attorneys and agents, from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (1) any claim alleging that transmission, storage, or other use of Customer Data infringes the rights of, or has caused harm to, a third party; or (2) a claim alleging or based upon any facts that, if true, would constitute a violation by you or your Users of any of your covenants, representations, or warranties in this Agreement. If Windfall requests that you defend Windfall, Windfall will (1) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Windfall of all liability and such settlement does not affect Windfall’s business, the Services, or any of its other products or services); and (2) provide reasonable information and assistance in connection with the defense and settlement of the claim.
9.2 Windfall’s Indemnification of You. Windfall will indemnify and hold harmless (and, if requested, defend) you, your parent organizations, subsidiaries, other corporate affiliates, and licensors, and their respective officers, directors, employees, attorneys and agents, from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim by a third party alleging that the Services used in accordance with this Agreement infringe its Intellectual Property Rights. Windfall will have no indemnification obligation and you shall indemnify Windfall for claims arising from any infringement arising from the use of the Services in combination with technology or processes not provided by Windfall where such claim or infringement would not have occurred in the absence of such combination. If Windfall is required to indemnify you for infringement of a third party’s Intellectual Property Rights in accordance with this Section, or if Windfall reasonably believes the Services may infringe a third party’s Intellectual Property Rights, then Windfall may, in its sole discretion: (x) modify the Services so that they no longer infringe; (y) obtain a license for your continued use of the Service; and/or (z) remove the infringing component from the Service. If, despite its commercially reasonable efforts to do so, Windfall is unable to perform (x), (y) or (z), then Windfall or you may terminate your Agreement upon 90 days’ prior written notice, in which case Windfall shall issue to you a prorated refund for any prepaid fees covering the remainder of the then-current term after the effective date of termination.
10. Limitations of Liability
10.1 Limitation of Liability. IN NO EVENT WILL WINDFALL’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) EXCEED THE TOTAL SUBSCRIPTION FEES PAID TO WINDFALL BY YOU FOR THE THREE-MONTH PERIOD IN WHICH THE CAUSE OF ACTION OCCURRED.
10.2 Disclaimer of Consequential and other Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF CUSTOMER DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY WINDFALL TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
11. Resolving Disputes
Customer service is a priority, but if there’s an issue that needs to be resolved, this section outlines what is expected of both of us.
11.1 Initial Informal Dispute Resolution. Before filing a claim against Windfall, you agree to try to resolve the dispute informally by contacting us via email at firstname.lastname@example.org. We will try to resolve the dispute by contacting you via email. If a dispute is not resolved within 30 days of submission, you or Windfall may bring a formal proceeding.
11.2 Arbitration Agreement. You and Windfall agree to resolve any claims relating to these Terms or the Services, whether or not such claims involve a third party, through final and binding arbitration, except as set forth under “Exceptions to Agreement to Arbitrate” below. 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. This arbitration agreement will survive the termination of your relationship with Windfall.
11.3 Arbitration Notification. If either of us intends to seek arbitration under this agreement, the Party seeking arbitration must first notify the other Party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to Windfall should be sent to us via email to email@example.com, with a duplicate copy sent via registered mail, return receipt requested, to the mailing address specified on our website. The notice must describe the nature and basis of the claim and the relief being sought.
11.4 Arbitration Procedures. You may bring claims only on your own behalf. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Francisco California, or any other location the Parties mutually agree to.
In the event that the American Arbitration Association is unwilling or unable to set a hearing date within one (1) year of filing the case, then either Windfall or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services.
Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies, or awards that conflict with these Terms.
11.5 Arbitration Fees. The AAA rules will govern payment of all arbitration fees.
11.6 Exceptions to Agreement to Arbitrate. Either Party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
You may opt out of this agreement to arbitrate, but to opt out, you must notify Windfall in writing within 30 days of the date that you first became subject to this arbitration provision. You must provide notice to us via email to firstname.lastname@example.org, with a duplicate copy sent via registered mail, return receipt requested, to the mailing address specified on our website. You must include your name and address, the primary contact and account administrator’s name and address, and a clear statement that you want to opt out of this arbitration agreement.
IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WINDFALL AGREE THAT THERE WILL NOT BE A JURY TRIAL. You and Windfall unconditionally waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this agreement in any way.
11.7 Prohibition of Class Arbitrations. YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. This agreement does not allow class or collective arbitrations even if the AAA procedures or rules would allow them. Notwithstanding any other provision of this agreement, the arbitrator shall not have the power to determine that class arbitration is permissible. The arbitrator also shall not have the power to preside over class or collective arbitration, or to award any form of class-wide or collective remedy.
If for any reason the prohibition of class arbitrations set forth above cannot be enforced, then the agreement to arbitrate will not apply.
11.8 Judicial Forum for Disputes. IN THE EVENT THE AGREEMENT TO ARBITRATE IS FOUND NOT TO APPLY TO YOU OR YOUR CLAIM, YOU AND WINDFALL AGREE THAT ANY JUDICIAL PROCEEDING RELATING TO THESE TERMS OR THE SERVICES OR SOFTWARE MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN FRANCISCO COUNTY, CALIFORNIA. BOTH YOU AND WINDFALL CONSENT TO VENUE AND PERSONAL JURISDICTION THERE.
12.1 Entire Agreement. This Agreement, including all corresponding Orders and exhibits where applicable, contain the entire agreement of the Parties and supersedes any and all prior and contemporaneous agreements with respect to the subject matter hereof, whether orally or in writing. This Agreement supersedes any terms printed on your purchase order or other communications. In the event of any conflict between these Terms and the terms of the Order, the terms of the Order will govern, but solely to the extent of the conflict.
12.2 Assignment. This Agreement will be binding on and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. You may not assign or otherwise transfer this Agreement, whether voluntarily or by operation of law, without Windfall’s prior written consent. Any attempted assignment without Windfall’s written consent shall be null and void. Windfall may assign this Agreement to any parent, subsidiary or affiliate and to any successor to its business, whether by merger, sale of assets, or otherwise. Windfall also may, in its discretion, subcontract and otherwise delegate any or all of its obligations hereunder, but shall nevertheless remain responsible for the performance of its obligations hereunder.
12.3 Relationship of the Parties. The Parties expressly agree that they are independent contractors and do not intend for this Agreement to be interpreted as an employment agency, joint venture, or partnership relationship.
12.4 Injunctive Relief. Actual or threatened breach of Section 2 (Use of Services), Section 3 (Use of Services), Section 6 (Proprietary Rights), or Section 7 (Confidentiality, Privacy, and Publicity) may cause immediate, irreparable harm that would be difficult to calculate and could not be remedied by payment of damages alone. Accordingly, Windfall will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
12.5 Governing Law & Venue. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of California, without regard to its conflict of laws principles. Any cause of action arising out of or related to this Agreement must be brought within one (1) year after the cause of action arose; otherwise, such cause of action will be permanently barred.
12.6 No Third-Party Beneficiaries. This Agreement is made for the benefit of Windfall and you, and not for the benefit of any third parties. No other person or entity will be a third-party beneficiary to this Agreement.
12.7 No Waiver. No failure to exercise or enforce any right or provision of this Agreement, nor any waiver of any default or breach of this Agreement by either Party will be deemed to imply or constitute a waiver of any other default or breach of this Agreement by either Party, whether of a similar nature or otherwise.
12.8 Severability. In the event that one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the enforceability of remaining provisions will be unimpaired.
12.9 Subsequent Agreements. In order to be effective, all terms and conditions of subsequent agreements related to any subject matter in this Agreement must be agreed upon in writing and signed by both Parties.
12.10 Notice. Except as provided elsewhere in this Agreement, either Party may give notice by written communication sent by next-day mail delivered by a nationally recognized delivery service or by email to: (i) if to you, to your address and email address on record that you provided in connection with your subscription for the Services, or (ii) if to Windfall, to Windfall Data, Inc., 595 Pacific Ave., San Francisco, CA 94111. Such notice shall be deemed to have been given upon the second business day after mailing.
12.11 Geographic Restrictions. The Services are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access the Services outside of the United States and that access thereto may not be legal by certain persons in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws. If you access the Services from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of the Services, which are governed by United States law, you may be transferring your personal information and Customer Data to the United States or any other country in which Windfall or its subsidiaries, affiliates or service providers maintain facilities and you consent to that transfer.
12.12 Force Majeure. Neither Party will be in default of any obligation under this Agreement (other than payment obligations) to the extent that its failure to perform is caused solely by conditions beyond that Party’s reasonable control, such as acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements that prevent or prohibit Windfall from providing Services.