THESE TERMS OF SERVICE ("TERMS") CONSTITUTE A CONTRACT BETWEEN YOU AND OPINIONAGE AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE
This Agreement is effective as of the date Subscriber clicks to accept the Agreement (the "Effective Date"). By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any User or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an "Entity"), You are agreeing to these Terms for that Entity and representing to Opinionage that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms "Subscriber," "You," "Your" or related capitalized terms herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
When used in these Terms with the initial letters capitalized, in addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of Subscriber or its Users within the Service.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby "control" (including, with correlative meaning, the terms "controlled by" and "under common control") means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Agreement Term: The "Term" of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 7 of this Agreement.
API: means the application programming interfaces developed and enabled by Opinionage that permits Subscriber to access certain functionality provided by the Service, including without limitation, the REST API that enables the interaction with the Service automatically through HTTP requests and the application development API that enables the integration of the Service with other web applications.
Associated Services: means products, services, features and functionality designed to be used in conjunction with the Service but not included in the Service Plan to which You subscribed, including without limitation, integrations and applications created or developed by Opinionage which are expressly stated to be governed by these Terms. For avoidance of doubt, neither Thingle.me nor any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms of service shall be deemed an Associated Service.
Confidential Information: means all information disclosed by You to Opinionage or by Opinionage to You which is in tangible form and labeled "confidential" (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to Opinionage's security policies and procedures. For purposes of these Terms, these Terms as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without use of the disclosing party's Confidential Information.
Data Controller: as this term is understood under the Directive (and any applicable national legislation implementing the Directive) means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law.
Data Processor: as this term is understood under the Directive (and any applicable national legislation implementing the Directive) means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller.
Data Recipient: as this term is understood under the Directive (and any applicable national legislation implementing the Directive) means a natural or legal person, public authority, agency or any other body to whom data are disclosed, whether a third party or not; however, authorities which may receive data in the framework of a particular inquiry shall not be regarded as recipients.
Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of Thingle.me provided or made available by Opinionage to You, Users or End-Users through the Site or otherwise.
Enabled Product: Subscriber's individual product which has been assigned a unique identifier ("Thingle Identifier" or "TID").
End-User: means any person or entity other than Subscriber or Users with whom Subscriber or its Users interact using the Service.
Fees: means the applicable fees for each Service and any applicable Taxes. The Fees for each Service are set forth here: https://dashboard.thingle.me/pricing.
Form: means any of Our service order forms executed or approved by You with respect to Your subscription to a Service.
Opinionage: means Opinionage Inc., a Delaware corporation or any of its successors or assignees with which You are contracting under these Terms.
Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, Other Services which may be integrated directly into Your Account.
Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service: means Thingle.me together with all applicable Associated Services that You have purchased or deployed or to which You have subscribed ("Deployed Associated Services").
Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within the Service by You, Users and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for Thingle.me to which You subscribe.
Site: means thingle.me as well as the other websites that Opinionage operates.
Software: means software provided by Opinionage (either by download or access through the internet) that allows a User or End-Users to use any functionality in connection with the applicable Service.
Thingle.me: means only the on-demand customer engagement solution made available by Opinionage online via the subscriber login link at https://thingle.me and other web pages designated by Opinionage, including, individually and collectively, the applicable Software, Updates, API and Documentation.
Usage Data: means encoded or anonymized information or aggregated data that Opinionage may collect about a group or category of services, features or users while You, Your Users or End-Users use a Service for certain purposes, including analytics, which does not contain Personal Data.
User: means an individual authorized to use the Service through Your Account as a user and/or administrator as identified through a unique login.
"We," "Us" or "Our": means Opinionage.
2.1 During the Agreement Term and subject to compliance by You, Users and End-Users with these Terms, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. You may not use the Service to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Opinionage from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
2.2 A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, "browser" software that supports protocols used by Opinionage, including the Transport Layer Security (TLS) protocol or other protocols accepted by Opinionage, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Users or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Opinionage. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.3 In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Users and End-Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service to Process data on behalf of any third party other than Users or End-Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Opinionage, (e) use the Service in any unlawful manner, including but not limited to violation of any person's privacy rights; (f) use the Service to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person's intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to store or transmit any "protected health information" as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Opinionage; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software ("Malicious Software"); or (m) attempt to use, or use the Service in violation of these Terms.
2.4 You are responsible for compliance with the provisions of these Terms by Users and End-Users and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Users or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. You agree and acknowledge that each User will be identified by a unique username and password ("Login") and that a User Login may only be used by one (1) individual. You will not share a User Login among multiple individuals. You and Your Users are responsible for maintaining the confidentiality of all Login information for Your Account.
2.5 In addition to Our rights as set forth in Section 7.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service: (a) during planned downtime for upgrades and maintenance to the Service (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Users) ("Planned Downtime"); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Users or End-Users.
2.6 New Applications and Services: Opinionage may make new applications, tools, features or functionality available from time to time through the Services, the use of which may be contingent upon Subscriber's agreement to additional terms.
To the Services: Opinionage may make commercially reasonable updates to the Services from time to time. If Opinionage makes a material change to the Services, Opinionage will inform Subscriber, provided that Subscriber has subscribed with Opinionage to be informed about such change.
To the Agreement: Opinionage may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by Opinionage, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. If Subscriber does not agree to the revised Agreement, please stop using the Services. Opinionage will post any modification to this Agreement to the Terms URL.
3.1 Subject to the express permissions of these Terms, each Party will protect each other's Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other's Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information (a) solely to those of our respective employees, representatives, subcontractors and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.
3.2 To the extent Service Data constitutes Personal Data, You and Opinionage agree that one of the Parties is deemed to be the Data Controller as agreed upon by the Parties at Service activation and as shown here https://dashboard.thingle.me/settings/domain, Opinionage shall be deemed to be the Data Processor and You are deemed to be the Data Recipient. In providing the Service, Opinionage will engage other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to these Terms within the European Economic Area (the "EEA"), the United States and in other countries and territories.
3.3 Pursuant to Article 6 and 7 of the Directive, the Data Controller is held responsible for the quality and legitimacy of the data processed. Pursuant to Article 10 of the Directive, the Data Controller must provide a data subject from whom data relating to himself are collected with all required information, implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected.
3.4 Opinionage will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies), except for certain Other Services that do not support encryption, which You may link to through the Service at Your election. Our compliance with the provisions of this Section 3.4 shall be deemed compliance with Our obligations to protect Service Data as set forth in Section 3.1.
3.5 You agree that We and the service providers that We utilize to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.4 and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.7.
3.7 Unless otherwise specifically agreed to by Opinionage, Service Data may be hosted or otherwise Processed by Opinionage or their respective authorized service partners in the U.S., the EEA or other locations around the world. If your principal location is in the EEA, we will ensure, pursuant to Article 25 of the Directive that, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a "non-EEA country"); then such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of the Directive is satisfied; or (c) We have ensured that the transfer is subject to adequate safeguards (such as the model contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission (known as the, "Standard Contractual Clauses") or adherence to the principles of the Personal Data Safe Harbors).
Each Party shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights"). The rights granted to You, Users and End-Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the Service and all hardware, Software and other components of or used to provide the Service, including all related Intellectual Property Rights, will remain with Opinionage and belong exclusively to Opinionage. Opinionage shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Users, End-User, or other third parties acting on Your behalf. Thingle.me and the Opinionage's other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Opinionage (collectively, "Marks"), and You may only use applicable Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Service Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against Opinionage with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Opinionage to disclose Your Login as well as Service Data as necessary to facilitate the use or enablement of such Other Services.
6.1 Online Billing: At the end of the applicable Fee Accrual Period, Opinionage will issue an electronic bill to Subscriber for all charges during the previous Fee Accrual Period based on (i) number of Enabled Products; (ii) software modules associated to them. Subscriber will pay all Fees in accordance with the payment terms applicable to the Fees. Opinionage's measurement of Subscriber's use of the Services is final. Opinionage has no obligation to provide multiple bills.
6.2 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes except those assessable against Opinionage based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
6.3 If You pay by credit card or certain other payment instruments, the Service provides an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by the Payment User, or they may obtain a receipt from within the Service to track subscription status. You hereby authorize the Payment User to bill Your credit card or other payment instrument on a periodic basis in accordance with the terms of the Service Plan for the Service until You terminate Your Subscription to the Service. You agree to promptly update your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment User uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment User.
6.4 Invoice Disputes & Refunds: To the fullest extent permitted by law, Subscriber waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Subscriber rights with its credit card issuer). Refunds (if any) are at the discretion of Opinionage and will only be in the form of credit for the Services. Nothing in this Agreement obligates Opinionage to extend credit to any party.
6.5 Delinquent Payments: Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Opinionage reserves the right to suspend Subscriber's Account, for any late payments.
7.1 Termination for Breach: Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
7.2 Termination for Inactivity: Opinionage reserves the right to terminate the Services for inactivity, if, for a period exceeding 180 days, no electronic bills are being generated.
7.3 Termination for Convenience: Subscriber may stop using the Services at any time. Subscriber may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. Opinionage may terminate this Agreement for its convenience at any time without liability to Subscriber.
7.4 We reserve the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Users' or End-Users' rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Users or End-Users have violated these Terms. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Users, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Users or End-Users may be referred to law enforcement authorities at Our sole discretion.
7.5 Effect of Termination: If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Subscriber to Opinionage are immediately due upon receipt of the final electronic bill; (iii) Subscriber will delete the Software and any Application; and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICE PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.
9.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, OPINIONAGE'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.4 Any claims or damages that You may have against Opinionage shall only be enforceable against Opinionage and not any other entity or its officers, directors, representatives or agents.
10.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party's valid patent, copyright, trademark or trade secret (an "IP Claim"). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Opinionage for such defense, provided that (a) You promptly notify Opinionage of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Opinionage in connection therewith. If use of the Service by You, Users or End-Users has become, or in Our opinion is likely to become, the subject of any such IP Claim, We may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Opinionage, terminate Your subscription to the Service. We will have no liability or obligation under this Section 10.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than Opinionage; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The provisions of this Section 10.1 state the sole, exclusive and entire liability of Opinionage to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You, Users or End-Users.
10.2 You will indemnify and hold Opinionage harmless against any claim brought by a third party against Opinionage arising from or related to use of the Service by You, Users or End-Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that We promptly notifies You of the threat or notice of such a claim.
11.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You in connection with any merger or change of control of Opinionage or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
11.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Opinionage with regard to the subject matter hereof. These Terms and any Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services We offer as part of or distinct from the Service, including Associated Services (the "Additional Terms"). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any User authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
11.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Opinionage as Your consent to any such amendment. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
The Service and other Software or components of the Service that We may provide or make available to You, Users or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You, Users and End-Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Users or End-Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Users and End-Users are located.
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 1, 2.3, 3, 4 and 7-18 shall survive any termination of our agreement with respect to use of the Service by You, Users or End Users. Termination of such agreement shall not limit a Party's liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
16.1 For the purposes of these Terms, notices should be addressed to: Opinionage Inc., 9329 26th Street, 94131 San Francisco, California, U.S.A. - e-mail: info[at]opinionage.com. The governing law is: California and controlling United States federal law. The courts having exclusive jurisdiction shall be: San Francisco, California, U.S.A.
16.2 Payments made by credit card, debit card or certain other payment instruments for Thingle.mes are billed and processed by Opinionage.
All notices to be provided by Opinionage to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service ("Courier") or U.S. mail to the contact mailing address provided by You on any Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Opinionage in writing by Courier or U.S. Mail and in anycase also by electronic mail to the applicable following addresses in Section 16.1. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
These Terms shall be governed by the jurisdictions detailed in Section 16.1 without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of those jurisdictions detailed in Section 16.1, for the purpose of resolving any dispute relating to this Agreement or access to or use of the Service by You, Users or End Users.
Last update June 22nd, 2016