You expressly acknowledge and agree that You have read, understand, agree to and are bound by these Terms. If You are an individual agreeing to these Terms on behalf of a company or other legal entity, (a) You represent and warranty that You have full legal authority to bind such entity to these Terms, and (b) You agree, on behalf of such entity, to these Terms. If You do not have full legal authority to bind such entity or do not accept all of these Terms, do not access or use the Infrascale Services. In the event of a conflict between these Terms and Your purchase agreement with Infrascale for the Services, if any, the terms and conditions of these Terms will govern, but only to the extent of such conflict.
IMPORTANT NOTICE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM ACCESS AND USE OF THE SERVICE OFFERINGS. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE DISPUTES SECTION BELOW. PLEASE READ CAREFULLY.
1.1. “Account Information” means information about You and Users that You provide to Infrascale in connection with the creation or administration of Your Account, and may include names, usernames, phone numbers, email addresses, and billing information associated with Your Account.
1.2. “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
1.3. “Content” means software, data, text, files, audio, video or images.
1.4. “Documentation” means Services support material, if any, made available by or on behalf of Infrascale, which may include product guides, manuals, specifications, and knowledgebase articles, each as may be updated from time to time.
1.5. “Hardware” means all computer and computer-related physical equipment, if any, provided by Infrascale for use with the Services and/or Software.
1.6. “Infrascale Content” means Content made available by or on behalf of Infrascale in connection with the Services or on the Infrascale website at http://infrascale.com (the “Site”) to allow access and use of the Services, including without limitation APIs, Documentation, Creatives, software libraries, templates, and other related technology.
1.7. “Login Credentials” means usernames, passwords, authentication keys, and security credentials that enable access, use, and management of the Services.
1.8. “Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
1.9. “Order” means (a) a written ordering document prepared by Infrascale and executed or otherwise agreed to by Your authorized representative, or (b) Your registration for and enablement of the applicable Services through Your Account on the Infrascale Dashboard. If You purchased entitlement to the Service Offerings from an Infrascale-authorized Partner, the “Order” consists of Your ordering document with that Partner evidencing Your entitlement to the Service Offerings.
1.10. “Service” means each of the services made available by or on behalf of Infrascale, including the described herein. Services do not include any Third-Party Product.
1.11. “Service Offerings” means the Services, Infrascale Content, Software, Infrascale Brand Features, Hardware, and any other product or service provided by or on behalf of Infrascale under these Terms. Service Offerings do not include any Third-Party Product.
1.12. “Service Term” or “Order Term” means, with respect to each subscription for any Service, (a) that meaning ascribed to such term in the Customer Agreement, or (b) if You are not a Partner, the duration of Your subscription to such Service with an Infrascale-authorized Partner.
1.13. “Software” means the software, if any, identified in an Order, as well as other software made available to You hereunder by or on behalf of Infrascale, including any applications, utility programs, and interfaces.
1.14. “Suspend” or “Suspension” means disabling or limiting access or use of the Service Offerings.
1.15. “Third-Party Product” means any Content made available to You by any third party on the Site or in conjunction with the Services, including any non-Infrascale-branded software and services licensed to You pursuant to Third Party Terms. Infrascale reserves the right to suspend or terminate any Third-Party Product at any time. In the event of a conflict between these Terms and any Third Party Terms, the Third Party Terms will prevail with respect to the Third-Party Product that is the subject matter of such terms.
1.16. “Usage Data” means any and all information reflecting access or use of the Service Offerings and information otherwise related to Your Account, including but not limited to session data, stream data, usage statistics, analytics, and information or data based on or derived from any of the foregoing.
1.17. “User” means, with respect to a Partner only, any individual or entity authorized by or on behalf of You to access or use Your Content or the Service Offerings under Your Account.
1.18. “Your Content” means all Content that You or any User (or Infrascale, when acting on Your instructions) transfers to Infrascale for processing, storage or hosting by the Services in connection with Your Account. Your Content does not include Account Information.
General Terms (Applicable to All Infrascale Services).
2.1. Trial/Proof of Concept. If a Service offer is identified as a trial or proof of concept (a “Trial”), then except as otherwise expressly agreed upon by Infrascale in writing, You and Users may use such Service (the “Trial Service”), including any Hardware provided in connection with the Trial (“Trial Hardware”), solely for internal demonstration, test, and evaluation purposes for a period of thirty (30) days (the “Trial Period”), commencing on the date You’re first provided access to the Trial Service. Notwithstanding any other provision of these Terms, the Trial Service is provided “AS IS” without indemnification or warranty of any kind. The Trial Service may be Suspended or terminated at any time by Infrascale in its sole discretion with or without notice to You. Certain features or functionalities of the Service may not be available as part of the Trial Service. Upon expiration of the Trial Period, (a) You shall ensure the Trial Hardware, along with all accessories, is promptly returned to Infrascale in the same condition as that in which it was provided, and (b) Your and Users’ access to the Trial Service and Your Content uploaded therein will terminate. ALL OF YOUR CONTENT UPLOADED IN CONNECTION WITH A TRIAL WILL BE PERMANENTLY LOST UNLESS PRIOR TO EXPIRATION OF THE TRIAL PERIOD, (A) A PAID SUBSCRIPTION TO THE SAME SERVICE IS PURCHASED FOR YOUR BENEFIT AND USE, OR (B) YOU EXPORT SUCH DATA.
2.2. Your Account. You must have an Account associated with a valid email address and Login Credentials. You will ensure that all Account Information You provide to Infrascale is accurate, complete and up to date at all times. You may manage Your Account through the Infrascale Dashboard. As between You and Infrascale, You are responsible for identifying and authenticating all Users, for approving Users’ access to the Service Offerings, for taking reasonable measures to prevent unauthorized access of the Service Offerings by others, and for maintaining the security of Your and Users’ Login Credentials. Except to the extent caused by Infrascale’s breach of these Terms, (a) You are responsible for all activities that occur under Your and Users’ Login Credentials, regardless of whether authorized by You or undertaken by You, Your employees, or a third party (including Users), and (b) Infrascale, its affiliates, suppliers, and licensors are not responsible for unauthorized access to Your Account. You agree to notify Infrascale immediately of any unauthorized access or use of which You become aware by contacting Customer Support via chat, phone, or email directed to email@example.com.
2.4. Your Content.
(a) Except as expressly set forth herein, Infrascale obtains no rights to Your Content. You consent to the processing and use of Your Content by and on behalf of Infrascale to provide the Service Offerings to You. You further acknowledge that Infrascale may collect Usage Data and may aggregate and/or anonymize Usage Data to use for statistical purposes and to improve Services, and may share such aggregated and/or anonymized Usage Data with third parties.
(b) You are solely responsible for (i) the operation, performance, and security of Your equipment, networks, and other computing resources used to connect to the Services; (ii) properly configuring and using the Services and otherwise taking the necessary action to protect and backup Your Content in a manner that will provide appropriate protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
(c) You will ensure that Your Content and use of Your Content will not violate these Terms, any third-party rights (including any intellectual property rights, and rights of publicity and privacy), or applicable law. If You become aware that any of Your Content or use of Your Content is in violation of the foregoing, You will take immediate action to remove the applicable portion of Your Content. If Infrascale reasonably believes any of Your Content violates these Terms, any third-party rights, or applicable law (“Prohibited Content”), Infrascale will notify You of the Prohibited Content and may request that such content be removed from the Services or access to it be disabled. If You do not remove or disable access to the Prohibited Content within two (2) business days of our notice, Infrascale may remove or disable access to the Prohibited Content or Suspend the Services. Further, Infrascale may remove or disable access to any Prohibited Content without prior notice, where the content may disrupt or threaten the Services or in accordance with applicable law or any judicial, regulatory, or other governmental order or request.
2.5. Acceptable Use Policy. You agree to comply with the following:
(a) You shall not use the Service Offerings:
(i) to do anything threatening, abusive, harmful, harassing, defamatory, tortious, or invasive of another person’s privacy;
(ii) contrary to our policies or in violation of any laws, regulations, ordinances, or directives;
(iii) to store or host files (A) in support of malware, phishing, spam, and similar activities, or (B) that are illegal, harmful, fraudulent, infringing, or offensive;
(iv) for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
(v) to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
(vi) to disable, interfere with, or circumvent the proper functioning of the Services or any software, hardware, or equipment on the Services;
(vii) to engage in any conduct that inhibits anyone else’s use or enjoyment of the Services, or which we determine may harm the Services or our users;
(viii) to monitor or copy any material on the Services or on the network, either manually or through automated means (i.e., scraping or crawling), without prior written consent;
(ix) to prepare derivative works of, reverse engineer, reverse assemble, decompile, or attempt to decipher any code relating to the Services or Software except to the extent permitted by applicable law;
(x) in a manner designed or intended to avoid Infrascale’s technical limitations, fees, or usage limits; and
(xi) in any application or environment in which failure or disruption of the Services could lead to death, personal injury, or severe physical or environmental damage.
2.6. Scope; Ownership. You do not acquire any right or license to use the Service Offerings in excess of the scope and duration of the Service stated in Your Order. Except as expressly set forth herein, You obtain no rights to the Service Offerings, including any related intellectual property rights. As between You and Infrascale, we own all right, title, and interest in and to the Service Offerings, including all improvements, enhancements, modifications, and derivative works thereof, and all intellectual property rights in them. This includes any information we collect and analyze about Your and Users’ use of the Service Offerings. Your rights to access and use the Service Offerings are limited to those expressly granted to You. All Hardware shall remain the property of Infrascale and title to the Hardware shall not pass to You or any third party. No license or right is granted to You or any third party by implication, estoppel or otherwise. Upon the end of the Service Term, Your and all Users’ right to access and use the Service Offerings will terminate.
2.7. Representations and Warranties. You represent and warrant that (a) You have full capacity, right and authority to enter into these Terms, (b) Your and all Users’ use the Service Offerings shall be solely for lawful purposes, (c) You will comply with all applicable laws in Your performance of these Terms and in Your and Users’ use of the Service Offerings, (d) Your and all Users’ access to and collection, use, storage and disclosure of Your Content will comply with all applicable laws, and (e) Your entry into these Terms and performance of Your obligations do not breach any of Your obligations to any third party, or breach any contract, agreement, or order by which You are bound.
2.8. Monitoring. Unless prohibited by applicable law, Infrascale has the right to verify Your compliance with these Terms. Upon request by Infrascale, You agree to provide information or other materials reasonably requested to assist in such verification. Infrascale may monitor the overall performance and stability of the Services and You will not block or interfere with that monitoring. If Infrascale reasonably believes an issue with the Service Offerings may be attributable to Your Content or Your use of the Service Offerings, You will cooperate with Infrascale to identify the source of and resolve any such issues.
2.9. Product Feedback. If You provide any suggestions, comments, or other feedback to Infrascale related to or in connection with the Service Offerings (“Product Feedback”), Infrascale and its affiliates shall be free to use, disclose, reproduce, license, distribute, and exploit Product Feedback without obligation, restriction, or compensation. You hereby irrevocably assign to Infrascale all right, title, and interest in and to the Product Feedback and agree to provide Infrascale reasonable assistance required to document, perfect, and maintain Infrascale’s rights in the Product Feedback.
2.10. Updates. From time to time, Infrascale may implement or make available corrections, bug fixes, features or functions to the Services (collectively, “Updates”). Additionally, Infrascale may change or discontinue any of the Services from time to time. If material functionality of a Service that You are using is discontinued, Infrascale will inform You pursuant to the Notice provisions of these Terms, except that such notice will not be required if it (a) would pose a security or intellectual property issue to us or the Services, (b) is economically or technically burdensome, or (c) would cause us to violate legal requirements.
2.11. Software License. Software may be made available to You for use in connection with the Services during the Service Term. Subject to these Terms, Infrascale grants You for the duration of the applicable Service Term a limited, non-exclusive, and non-transferable license to download, install, and use the Software on one or more computers solely for purposes consistent with Your authorized use of the Services.
Infrascale Cloud Application Backup (ICAB).
Your access to and use of Infrascale Cloud Application Backup is subject to the Infrascale Cloud Application Backup Service Terms. Such terms are in addition to the terms set forth herein.
Infrascale Cloud Backup (ICB).
Subject to these Terms, (a) we will provide Infrascale Cloud Backup (“ICB”) Service as set forth in an Order with You that we have accepted; and (b) we hereby grant You for the duration of the applicable Service Term (unless earlier terminated), a limited, sublicenseable, non-exclusive and non-transferable license to use the ICB Service up to the storage quantity purchased. You shall use the then-current version of the ICB Service, including any Updates and Upgrades as made available by us.
Infrascale Disaster Recovery (IDR).
5.1. Subject to these Terms, (a) we will provide Infrascale Disaster Recovery (“IDR”) Service and Hardware, if any, as set forth in an Order with You that we have accepted; and (b) we hereby grant You for the duration of the applicable Service Term (unless earlier terminated), a limited, sublicenseable, non-exclusive and non-transferable license to (i) use the IDR Service in accordance with the terms set forth in the Order; and (ii) use the Hardware solely in furtherance of Your authorized use of the IDR Service. Your license is to the then-current version of the IDR Service, including any Updates and Upgrades as made available by us.
5.2. Title to Hardware. Except as otherwise expressly set forth in an Order, (a) Infrascale and/or its suppliers are the owner of any Hardware made available to You hereunder in connection with the IDR Service and will retain title thereto, and (b) You will not, and will not purport to, assign, grant, or transfer the Hardware or any interest in the Hardware to any individual or entity, and any such purported assignment, grant, or transfer is void.
[If You are a Partner, the provisions in the “Suspension” section of the Customer Agreement govern and the provisions in this Section 6 do not apply to You.]
6.1. Generally. Infrascale may Suspend Your right to access or use all or any portion of the Service Offerings if Infrascale determines:
(a) Your use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact Infrascale systems, the Service Offerings, or the systems or Content of any other Infrascale customer, (iii) could subject Infrascale, its affiliates, or any third party to liability, or (iv) could be fraudulent;
(b) You are in breach of these Terms;
(c) It is required to Suspend to comply with applicable law; or
(d) Infrascale wishes to Suspend a Trial Service pursuant to Section 2.1.
Infrascale will eliminate any such Suspension once the circumstances giving rise to the Suspension have been resolved.
[If You are a Partner, the provisions in the “Term; Termination” section of the Customer Agreement govern and the provisions in this Section 7 do not apply to You.]
7.1. Term. Unless earlier terminated, these Terms will remain in effect until the end of Your Service Term.
7.2. Termination for Cause. Infrascale may terminate these Terms immediately upon notice to You for cause (a) if Infrascale has the right to Suspend under Section 6.1, (b) if Infrascale’s relationship with a third-party partner who provides software or other technology Infrascale uses to provide the Service Offerings expires, terminates, or requires Infrascale to change the way it provides the software or other technology as part of the Services, or (c) in order to comply with applicable law or requests of governmental entities.
7.3. Effect of Termination. Upon expiration or termination of a Service Term:
(a) Your rights to the Service Offerings terminate immediately, and You will not be able to access Your Content except as expressly set forth in Section 7.3(d);
(b) You will immediately return or, if instructed by Infrascale, destroy all Infrascale Content in Your possession;
(c) the following Sections shall survive termination: Sections 1, 2.1 (solely to the extent related to post-termination obligations), 2.3, 2.4(a), 2.9, 5.2, 7.3, and 8 through 11; and
(d) unless Infrascale terminates these Terms for cause pursuant to Section 7.2, during the forty-five (45) days following termination of the Service Term, Infrascale will not take action to remove any of Your Content from the Infrascale systems as a result of the termination and will allow You to retrieve Your Content from the specific Services. Infrascale is not responsible for the availability or accessibility of Your Content following the expiration of the forty-five (45) day retrieval period.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (A) THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, (B) INFRASCALE, ITS AFFILIATES, SUPPLIERS, AND LICENSORS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND QUIET ENJOYMENT, AND (II) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) INFRASCALE, ITS AFFILIATES, SUPPLIERS, AND LICENSORS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT, DATA, AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES, (D) YOU AND USERS ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR CONTENT, AND (E) INFRASCALE, ITS AFFILIATES, SUPPLIERS, AND LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS OR THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS ARE SUITABLE FOR COMPLIANCE WITH DOCUMENT RETENTION OR OTHER LEGAL REQUIREMENTS. THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS ARE NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES. IN NO EVENT WILL INFRASCALE, ITS AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES, OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS YOU OR ANY USER MAY HAVE RELATED TO YOUR CONTENT. YOU ACKNOWLEDGE THAT INFRASCALE, ITS AFFILIATES, SUPPLIERS, AND LICENSORS DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. INFRASCALE, ITS AFFILIATES, SUPPLIERS, AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability.
[If You are a Partner, the provisions in the “Limitation of Liability” section of the Customer Agreement govern and the provisions in this Section 9 do not apply to You.] INFRASCALE, ITS AFFILIATES, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA) ARISING OUT OF OR RELATING TO THESE TERMS OR ANY SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS FURNISHED OR TO BE FURNISHED UNDER THESE TERMS OR THE USE THEREOF, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. FURTHER, NEITHER INFRASCALE NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THESE TERMS OR AN ORDER, OR YOUR ACCESS OR USE OF THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, (II) INFRASCALE’S DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER ANY SERVICE LEVEL AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THESE TERMS OR YOUR ACCESS OR USE OF THE SERVICE OFFERINGS, OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. INFRASCALE’S AND ITS AFFILIATES’, SUPPLIERS’, AND LICENSORS’ AGGREGATE LIABILITY UNDER THESE TERMS WILL NOT EXCEED THE LESSER OF (A) ONE HUNDRED DOLLARS ($100), OR (B) THE AMOUNT YOU ACTUALLY PAY INFRASCALE UNDER THESE TERMS FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 9 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
[If You are a Partner, the provisions in the “Indemnification” section of the Customer Agreement govern and the provisions in this Section 10 do not apply to You.]
10.1. General. You will defend, indemnify, and hold harmless Infrascale, its affiliates, suppliers, and licensors, and each of their respective employees, officers, directors, and representatives (collectively, the “Infrascale Indemnified Parties”) from and against any Losses arising out of or relating to any third-party claim concerning (a) Your access or use of the Service Offerings (including any activities under Your Account and use by Your employees and personnel), (b) breach of these Terms or violation of applicable law by You or Your Content, (c) Your acts or omissions, or (d) a dispute between You and any other party. You will reimburse Infrascale for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third-party claims described in (a) through (c) above at its then-current rates.
10.2. Intellectual Property. You will defend, indemnify, and hold harmless the Infrascale Indemnified Parties from and against any third-party claim alleging that any of Your Content or Your Brand Features infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
11.1. Severability. If any provision of these Terms is declared by a court of competent jurisdiction to be illegal, invalid, or unenforceable for any reason, then (a) such provision will be enforced to the maximum extent permissible so as to effectuate the original intent of the parties with respect to such provision, and (b) the remaining provisions of these Terms, as applicable, will be unaffected thereby and will continue to remain in full force and effect.
11.2. Rights and Remedies; Equitable Relief. The rights and remedies of the parties under these Terms are cumulative and may be exercised singularly or concurrently. You acknowledge and agree that an actual or threatened breach of Your or any User’s obligations related to Infrascale’s intellectual property or confidential information may result in immediate, irreparable, and continuing damage for which there may be no adequate remedy at law. Notwithstanding anything contained in these Terms to the contrary, Infrascale may apply to any court of competent jurisdiction for equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond or any other surety or security.
11.3. Disputes. [If You are a Partner, the provisions in the “Disputes” section of the Customer Agreement govern and the provisions in this Section 11.3 do not apply to You.]
(a) Generally. Notwithstanding any other provision in these Terms, and except as otherwise set forth in this Section, if either You or Infrascale has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to these Terms or the Service Offerings, including any claim regarding the applicability, interpretation, enforceability, scope, validity, or formation of this arbitration clause and/or these Terms (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between You and Infrascale, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules of the AAA, including the Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), including any expedited procedures. This Section shall not preclude either party from seeking (i) equitable relief in accordance with Section 11.2; or (ii) relief from a small claims court for disputes or claims within the scope of such court’s jurisdiction.
(b) Process. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in Fairfax County, Virginia or any other location that is mutually agreed upon by You and Infrascale. A single arbitrator will be mutually selected by You and Infrascale and shall be (i) a practicing attorney licensed to practice law in Virginia or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in finance, technology, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If You and Infrascale cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. Infrascale will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. We will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
(c) Courts. If You opt out of the arbitration agreement (as provided below), or if the arbitration agreement is found to be unenforceable, or if You neither are a resident nor have a principal place of business in the United States or Canada, You agree to resolve any claim You have with Infrascale exclusively in a state or federal court located in Fairfax County, Virginia.
(d) Timing. To the extent permitted by law, You agree to file any claim You may have against Infrascale within one (1) year after such claim arose. Otherwise, Your claim is permanently barred.
(e) Class Action and Trial Waiver. You and Infrascale agree and acknowledge that these Terms evidence a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in these Terms. YOU FURTHER ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOU AND INFRASCALE ARE EACH WAIVING OUR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THESE TERMS.
(f) Opt Out. You may opt out of the agreement to arbitrate. If You do so, neither You nor Infrascale can require the other to participate in an arbitration proceeding. To opt out, You must notify Infrascale within ninety (90) days of the date that You first agreed to these Terms. To opt out by mail, send Your written opt-out notice to the following address:
Attn: Legal Department
12110 Sunset Hills Road, Suite 600
Reston, Virginia, 20190
Your written opt-out notice must include (1) Your name and residence address; (2) the email address associated with Your account; (3) a clear statement that You want to opt out of this arbitration agreement; (4) date sent, and (5) Your signature.
Alternatively, You can opt out online by sending an email with all of the above information to: firstname.lastname@example.org.
11.4. Governing Law. Except as otherwise expressly provided herein, all claims shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, exclusive of conflict or choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. The courts in some countries will not apply U.S. law to some types of disputes. If You reside in one of those countries, then where U.S. law is excluded from applying, the laws of Your country of residence will apply.
11.5. Modifications. Infrascale may modify these Terms at any time, in our sole discretion. If we make any material modifications to these Terms, we shall inform You by posting the modified Terms at infrascale.com/legal/terms-of-service/. It is Your responsibility to check periodically for modifications to these Terms. The modified Terms will be effective upon Your next subscription renewal following posting of the updated terms. Your continued access or use of the Service Offerings after such renewal confirms Your consent to be bound by the Terms, as amended. If You do not agree to be bound by the modified Terms, then You may not continue to use the Service Offerings.
11.6. Waiver. The failure by Infrascale at any time to enforce any of the provisions of these Terms or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of these Terms. The waiver of any default by Infrascale will not be deemed a continuing waiver but will apply solely to the instance to which such waiver is directed.
11.7. Headings. The section headings used in these Terms are for convenience only and shall not be used in interpreting or construing these Terms.
11.8. No Agency. The parties hereto are independent contractors. These Terms do not create any agency, partnership or joint venture between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement, or undertaking with any third party.
11.9. Assignment. Infrascale may assign its rights or delegate its obligations, or any part thereof under these Terms without prior consent. You may not assign, whether in conjunction with a change of ownership, merger, acquisition, sale, or transfer of all or any part of Your business or assets or otherwise, either voluntarily, by operation of law or otherwise, any portion of these Terms without Infrascale’s prior written consent, such consent not to be unreasonably withheld. Any attempt by You to assign or delegate any rights, duties, or obligations set forth in these Terms without Infrascale’s prior written consent shall be deemed a material breach of these Terms and shall be null and void. Subject to the foregoing, these Terms shall bind and enure to each party’s successors and assigns.
(a) To You. Infrascale may provide any notice to You under these Terms by (i) posting a notice on the Infrascale Site or Dashboard, or (ii) sending a message to the email address then associated with Your Account. Notice Infrascale provides by posting on the Infrascale Site or Dashboard will be effective upon posting and notice Infrascale provides by email will be effective when the email is sent. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your Account when Infrascale sends the email, whether or not You actually receive the email.
(b) To Infrascale. To provide Infrascale notice under these Terms, You must do so via personal delivery, overnight courier or registered or certified mail to Infrascale, Inc., 12110 Sunset Hills Road, Suite 600, Reston, VA 20190, Attention: Legal Department. Infrascale may update its address for notice by providing notice of such change pursuant to subsection (a) above. Notice provided by personal delivery will be effective immediately. Notice provided by overnight courier will be effective one (1) business day after it is sent. Notice provided registered or certified mail will be effective three (3) business days after it is sent.
11.11. Force Majeure. Infrascale will not be liable for any delay or failure to perform any obligations under these Terms due to any cause beyond Infrascale’s reasonable control, including without limitation acts of God, labor disputes or other industrial disturbances, electrical, telecommunications or other utility failures, earthquakes, storms or other causes of nature, global health pandemic, embargoes, riots or other civil disturbances, acts or orders of government, acts of terrorism, or war. If such a force majeure event occurs and continues for a period of more than thirty (30) days, either party may terminate these Terms upon written notice to the other party.
11.12. Questions. If You have any questions regarding these Terms, please contact Infrascale at email@example.com.
Last revised January 26, 2021.
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