This is the Provider Agreement. If you are consuming APIs through WebServius, see the Consumer AgreementWEBSERVIUS, INC.
WebServius, Inc. will provide You with the Service subject to the terms of this Provider Agreement. By using the Service, You agree to be bound by this Agreement and use the Service in compliance with this Agreement.
BEFORE ACCEPTING THIS AGREEMENT, CAREFULLY READ THE TERMS OF THIS AGREEMENT. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE AT THE END OF THIS DOCUMENT OR BY EXECUTING A SIGNUP FORM THAT REFERENCES THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT CLICK THE ACCEPT BUTTON AND DO NOT USE THE SERVICE.
1.1 "We," "Us," or "Our" means WebServius, Inc., a Delaware corporation.
1.2 "You" or "Your" means the company or other legal entity for which You are accepting this Agreement, and any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 "Authorized Users" means individuals who are authorized by You to use the Service, and who have been supplied user identifications and passwords by You (or by Us at Your request). Authorized Users may include Your employees, consultants, contractors and agents, and third parties with which You transact business.
1.4 "Your Functionality" means the set of capabilities (including but not limited to the capability to execute certain queries against Your APIs) which You wish to make available and manage for the purposes of computer-to-computer access through the Service. If You wish to make available access to data as part of Your Functionality, this data will be deemed "Functionality Data" in this Agreement.
1.5 "Subscriber" means any entity or person who accesses or attempts to access Your Functionality through the WebServius Platform. We are not a Subscriber for the purposes of this Agreement. An "Active Subscriber" is a subscriber who (i) has used Your Functionality through the Service within the past 30 days, or (ii) has a current paid subscription to Your Functionality through the Service with a periodic subscription fee.
1.6 "Your Data" means any data, except Functionality Data, that meets one of the following criteria:
(a) any data, information, or material provided or submitted by You or Authorized Users to the Service in the course of using the Service, or automatically collected about Your Functionality or Authorized Users;
(b) any data, information, or material provided or submitted by Subscribers in the course of using the Service, where the Subscriber consents that the data will be owned by You; and
(c) any Subscriber usage data automatically collected in the course of the Subscriber using Your Functionality through the Service where the Subscriber consented that the data will be owned by You.
1.7 "Subscriber Data" means any data, information, or material provided or submitted by Subscribers, where the data is not owned by You, but where the Subscriber authorizes Us to make the data available to You.
1.8 "WebServius Solution" means an online software platform intended for the primary purpose of managing public computer-to-computer service offerings, developed, operated, and maintained by Us, accessible via http://webservius.com or another designated web site or IP address, as well as ancillary online or offline products and services, audio and visual information, documents, and software provided by Company to WebServius, including the WebServius Technology.
1.9 "Signup Form" means the online form You have used to sign up for an account with Us in order to use the WebServius Solution, including any information contained in pages linked from this form with links labeled with words such as "Pricing", "Limitations", and similar terms. The Signup Form includes also any addenda thereto, that are entered into between You and Us from time to time. Signup Forms shall be deemed incorporated herein by reference.
1.10 "Service" means the part of the WebServius Solution provided to You under this Agreement, substantially as described on the www.webservius.com web site and the Signup Form, and subject to all restrictions, limitations and pricing terms set forth on the Signup Form.
1.11 "WebServius Technology" means all of WebServius's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information, including manuals) made available to You by WebServius.
2. LICENSE GRANTS AND SERVICE SCOPE
2.1 License Grant. Subject to the terms and conditions of this Agreement, We grant to You a limited, non‑exclusive, non‑transferable, worldwide license, without the right to sublicense, to use the Service in order to make Your Functionality available to Subscribers for computer-to-computer integration. You will not make available, use, or authorize others to make available or use the WebServius Technology in any other manner without WebServius's prior written consent.
2.2 Feature Scope. Some of the features in the WebServius Solution and some of the features advertised on the www.webservius.com web site or Our other promotional materials may not be available to You as part of the Service, and the Signup Form may impose significant and material restrictions on feature availability in the Service. Some of these features not included in Your Service may only be planned or contemplated by Us for the future and not yet be available, and may never become available. Some of these features may only be available for additional charge, or only after executing another agreement with Us. Some of these features may be withheld from You at Our sole discretion.
2.3 Feature Modification. We may add additional features to the Service, remove features, or modify the design of existing features, including but not limited to adding more capabilities for Subscribers, supporting additional computer-to-computer integration formats, and changing the user interface look-and-feel. Any such addition, removal, or modification may be done: (i) without notice if it does not break computer-to-computer integration, using reasonable integration techniques supported by Us, between Active Subscribers and Your Functionality, or (ii) with a 90-day notice to You otherwise. Notwithstanding the above, features designated as "Beta", "Preview", "Experimental", "Labs" or with other similar designations ("Experimental Features") may be changed or removed at any time with no notice, even if this breaks computer-to-computer integration. We are under no obligation to make any new WebServius Solution features or feature modifications available as part of the Service.
2.4 No Integration Support for You. We are under no obligation to provide technical support on initial integration issues to You, and We will not perform any modification or customization of the WebServius Technology in order to allow Your Functionality to be integrated with the Service. We may choose to provide such support, but may later choose to terminate such support at any time at Our sole discretion. You are solely responsible for all costs associated with technical integration according to our published technical standards. Under no circumstances will We be liable for any failure to achieve satisfactory or timely technical integration of Your Functionality with the Service, even if the failure is caused by a software issue, documentation issue, or inadequate support by Us.
2.5 No Integration Support for Subscribers. Unless otherwise agreed by the parties in writing, We are under no obligation to provide technical support on integration issues to Subscribers, and We will not perform any modification or customization of the WebServius Technology in order to allow Subscribers to use Your Functionality. We may choose to provide such support, but may later choose to terminate such support at any time at Our sole discretion. Under no circumstances will We be liable for any loss of business You may incur, or for any other consequence, due to a failure to achieve satisfactory or timely technical integration between Subscribers and Your Functionality, even if the failure is caused by a software issue, documentation issue, or inadequate support by Us.
2.6 Limited Ongoing Technical Support. We provide limited technical support for ongoing usage of the Service (except for Experimental Features) to You. Unless we agree to a higher level of support in writing (on the Signup Form or elsewhere), support will be given during regular business hours, on regular working days, over email.
2.7 Limits. The Signup Form may have defined some limits when defining the scope of the Service, which may affect Your usage in a significant and material way. You may not have direct control over complying with some of these limits since they may depend on the actions of Subscribers, but You will abide by these limits or negotiate a higher-limit level of service with Us if higher limits are mandated by Subscribers' current or anticipated actions. The limits may include but are not limited to the maximum number of Subscribers, and the maximum number of requests per unit of time allowed from Subscribers. We will also impose limits that may not be specified in the Signup Form but are consistent with common technical best practices for other similar solutions, including but not limited to maximum message sizes, peak message rates and connection timeouts, and We will be the sole judge of the reasonableness of such limits. If You or Subscribers go over any limits, we may, at our sole discretion, remedy the situation by blocking or removing over-limit usage. We reserve the right to notify Subscribers about a current or anticipated over-limit situation. We may decrease Our limits at any time upon 90 days prior written notice, including by email notice.
2.8 Pricing. The Signup Form may have specified pricing for Service usage charges, and You agree to accept liability for these charges and pay them in a timely manner as described elsewhere in this agreement. Some aspects of the pricing may depend on the actions of Subscribers that are outside of Your control You agree to accept all liability for the Service usage charges incurred as a result of Subscriber actions, even if such actions were unexpected and even if You failed to exercise control mechanisms or failed to do so skillfully.
2.9 Obligation to Fully Understand Service. This Section 2, as well as other sections of this Agreement, may place significant restrictions on the scope of the Service offered to You, and the Service may differ materially from Your expectations. Since it is often difficult to make changes after computer-to-computer integration with Subscribers has occurred through the Service, it is Your obligation to understand the Service, understand this Agreement, and test the Service for suitability to Your particular circumstances, prior to enabling Subscribers to integrate with Your Functionality through the Service. If, at any point, whether before or after any integration with Subscribers has occurred, You find the Service unsatisfactory, Your sole recourse will be to terminate this Agreement as described in a later section, and in no event will We be liable for failing to meet Your feature expectations or for any resulting loss of business You may incur.
2.10 Amendment. We may amend any part of this Agreement, including but not limited to pricing and other details contained on the Signup Form, after providing You with a notice, including email notice, of the amendment 90 days in advance. If You do not agree with a proposed amendment, Your sole remedy will be to terminate the agreement as permitted in a later section on termination.
3. GENERAL OBLIGATIONS
3.1 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, You will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works based on the WebServius Solution, except for with prior written approval from Us; (b) rent, lease, or sublicense the WebServius Platform to any third party, except to the extent of making Your Functionality available to Subscribers through the Service; (c) circumvent or disable any technological features or measures in the WebServius Solution; (d) access the WebServius Solution for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; nor (e) frame or mirror any part of the WebServius Solution on any other server or wireless or Internet-based device, except for with prior written approval from Us.
3.2 Restrict Acquisition of Rights by Government. You will comply with all applicable laws, rules, and regulations to preclude the acquisition of unlimited rights to technical data, software, and documentation provided with the WebServius Solution to a governmental agency, and ensure the inclusion of the appropriate "Restricted Rights" or "Limited Rights" notices required by the U.S. Government agencies or other relevant governmental entities.
3.3 Export Restrictions. You will not make available the Service or Your Functionality in any foreign territory where any of the terms of the applicable Subscriber Agreement would be unenforceable or where the terms would not provide the protections to Us and the Service intended under this Agreement. You will not directly or indirectly import, export, or re‑export the Service or Your Functionality outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory. You represent and warrant that You are not located in, under the control of, or a national or resident of any country on the United States Commerce Department's Table of Denial Orders.
3.4 Authorized Users. We will establish, during the sign-up process, one set of Authorized User account information, consisting of a user name and password, with full privileges to the Service. We may provide You with capabilities to create additional Authorized User accounts. We will provide reasonable assistance in the case of lost or forgotten account information. You are responsible for all activity by Authorized User accounts, and will abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Your use of the Service, including those related to data privacy, international communications, and the transmission or technical or personal data. Any actions taken by an Authorized User are deemed to be actions taken by You, included but not limited to: adding or removing Subscriber accounts, adjusting Subscriber balances, adjusting Subscriber access policies or access limits, communicating with Subscribers, and stopping, pausing or altering the operation of Your Functionality. In no event will We be responsible or liable for any damages, fines, taxes, or other consequences of misuse or abuse of Authorized User accounts. You are solely responsible for the security of Authorized User account information, including the storage of user names, passwords, and other secret information if applicable, and the choice of strong passwords. We may from time to time impose, but are not obligated to impose, password and other secret information management policies that You agree to comply with, included but not limited to minimum password strength and maximum password lifetime. You agree to use commercially reasonable industry standards to manage such account information, and in no case to allow the security standards for managing such information to be less than the standards You use to manage administrative passwords for Your own internal computer networks.
3.5 Unauthorized Use. You will: (a) immediately notify Us of any unauthorized use of any password or other secret account information or any other known or suspected breach of security; (b) report to Us immediately and use best efforts to immediately stop any unauthorized copying or distribution of any part of the WebServius Technology; and (c) not impersonate another user or provide false identity information to gain access to or use the WebServius Solution.
3.6 Data. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and right to use for all of Your Data. To perform the obligations under this Agreement in an efficient manner, We may need to process and store Your Data and Functionality Data. Furthermore, We may utilize third parties for certain aspects of the Service, including but not limited to payment processing, and therefore may need to disclose such data to third parties and allow it to be stored in their systems. Our employees or other agents or said third parties may gain access to said data, including but not limited to testing and debugging purposes. Furthermore, You acknowledge Your understanding that the core functionality of the Service is allowing You to make available Your Functionality and Functionality Data to third parties according to rules You define, and therefore You take full responsibility for misconfiguring the Service that has the effect of unintended exposure. The efficient removal of Your Data and Functionality Data from all WebServius and third-party systems, including backup systems, may be lengthy and costly, and while WebServius may provide partial data removal functionality as part of the Service if agreed upon by the parties in writing, You will pay the costs of any additional removal if such additional removal is requested by You.
3.7 Testing. We may create and use one or more "Test Accounts" for testing, debugging or other purposes authorized in this Agreement. Even though an online agreement provided by You may be clicked through by Us in electronic form in order to create such accounts, no Subscriber relationship will be created between Us and You as a result of Test Account usage, and any such online agreements will be disregarded by both parties. In no event will We be liable to You for usage of Your Functionality for testing purposes, debugging purposes, research purposes in order to later promote Your Functionality, or other similar purposes.
4. OUR RELATIONSHIP TO SUBSCRIBERS
4.1 Subscriber Agreement. Prior to allowing access or use of the Your Functionality through the Service, We may require each Subscriber to enter a Subscriber agreement ("Subscriber Agreement") acceptable to Us. A copy of the Subscriber Agreement current as of the date of this Agreement has been made available to You, but may change substantially from time to time at Our sole discretion. We reserve the right to decline to enter into a Subscriber Agreement with any Subscriber, and thus to deny access to Your Functionality through the Service to any Subscriber, at Our sole discretion, and will not be liable to You for any loss of business You may incur as a result.
4.2 Subscriber Accounts Shared. Subscriber accounts with Us are not unique to You, in the sense that a Subscriber may use other functionality provided by other functionality providers through the WebServius Solution.
4.3 Contacting Subscribers. We may contact Subscribers in the regular course of providing the Service. We may also contact Subscribers to notify them of any of Your actions or Your failure to act that may adversely affect them, after a reasonable effort at resolving the situation directly with You. We may also, subject to the Subscriber Agreement, contact Subscribers on matters unrelated to You, including but not limited to notifying Subscribers of new features available to them and promoting the offerings of other functionality providers.
4.4 Information Disclosure. We may disclose to Subscribers Your identity, Your contact information, and any information required to be disclosed in the normal course of offering the Service, such as the pricing plans You define for Your Functionality.
4.5 Subscriber Payments. We reserve the right to delay the application of any Subscriber payment to Us for a period of time that may be reasonably required to verify the payment, or for three business days (whichever is greater). We also have the right to reject any Subscriber payment that we, at our sole discretion, judge to be of a high risk in terms of its potential to be refunded, reverted or otherwise deemed invalid or fraudulent. We may reject some Subscriber payments for reason of technical issues with the WebServius Solution or our payment processing partners. We will not be liable for any loss of business You may incur as a result of our failure to accept or failure to timely process a Subscriber payment, regardless of reason.
5. YOUR RELATIONSHIP TO SUBSCRIBERS
5.1 Your Functionality. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and right to use for all of Your Functionality and Functionality Data. In selling, marketing, and promoting Your Functionality and otherwise performing under this Agreement, You will: (a) not engage in any deceptive, misleading, illegal, discriminatory or unethical practices; (b) not make any representations, warranties, or guarantees concerning Your Functionality that are inconsistent with those made by Us in this Agreement; (c) comply with any agreements between You and Subscribers that relate to the Service; and (d) comply with all applicable international, national, state, and local laws and regulations. You will indemnify, defend, and hold Us harmless from and against all damages, liabilities, costs, and expenses, including attorneys' and experts' fees and expenses, that We may incur as the result of any action brought against Us and arising out of the acts of You, Your agents, Your employees, or Authorized Users in breach of this Section.
5.2 You Are Responsible for Setting Access Rules. You acknowledge Your understanding that the core functionality of the Service is allowing You to make available Your Functionality and Functionality Data to Subscribers according to rules You define. The Service provides You with access control mechanisms to control access to Your Functionality. You are fully responsible for any configuration of the Service that has the effect of unintended exposure, including but not limited to incorrect pricing settings and incorrect usage quota settings.
5.3 Your Obligations to Subscribers. Unless otherwise agreed between You and Subscribers, You agree to make Your Functionality available at least 90% of the time in any 24-hour window during which You have at least one Active Subscriber, and to give Active Subscribers 30-day notice for any changes that (i) break computer-to computer integration, including but not limited to removal of Your Functionality; (ii) effectively raise prices, or (iii) effectively tighten limits on the Active Subscribers' capabilities. You also agree that Subscribers may cancel a subscription to Your Functionality at any time. We may impose certain obligations on Your relationship to Subscribers that may be more restrictive that the obligations laid out in this Section, and Your Service may not include features allowing You to change these obligations.
6. PRICING, PAYMENTS, AND REPORTING
6.1 Net Balance. We will keep on file a balance amount for You denominated in US dollars (the "Net Balance"), which will initially be zero. On a monthly basis, and also at most 30 days after the termination of this Agreement, We will calculate Your Net Balance ("Periodic Balance Calculation") by adding to Your previous Net Balance the Subscriber fees that We collected on Your behalf (other than Subscriber fees collected but not yet earned, such as periodic subscription fees paid in advance), subtracting any of Your obligations to Us (including our charges as specified in section 2.8), and subtracting any other amounts We are legally required to withhold such as taxes.
6.2 Refunds and Chargebacks. If we incur charges associated with refunding money to Subscribers where we have reason to believe that the refund request was a result of Your breach of this Agreement or Your breach of Your agreement with a Subscriber, or if we incur a chargeback from a Subscriber and have reason to believe that the chargeback is related to the Subscriber's use or intended use of Your Functionality, then these charges will also be deducted from Your Net Balance. The deduction will take place even before the next scheduled Periodic Balance Calculation, and if this results in a negative Net Balance then You agree to remit the Net Balance to us within 7 days of a written request. We will, at our sole discretion, determine the allocation of a refund or chargeback between You and other providers dealing with the same Subscriber, provided we do so with reasonable justification.
6.3 Positive Balance. In the event that the Net Balance is positive after each Periodic Balance Calculation, We will remit the Net Balance to You, in the form of a mailed check in US dollars or as otherwise mutually agreed, provided that the Net Balance exceeds our current payment threshold (which will not exceed $50), except at Agreement termination. The check will be mailed within 7 days of the latter of (a) the date of the Periodic Balance Calculation and (b) the date on which accurate and complete payment information, including but not limited to Your address and Your tax-related identification numbers, become available to Us.
6.4 Negative Balance. In the event that the Net Balance is negative, We will invoice You for the Net Balance amount, and You will pay Us within 30 days after the date of the invoice (or earlier in the event of a refund or chargeback as specified in section 6.2). Any amount not paid when due will be subject to finance charges equal to 1% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorney fees) incurred by Us to collect any amount that is not paid when due. We may accept any check or payment in any amount without prejudice to Our right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due from You under this Agreement may not be withheld or offset by You against amounts due to You for any reason. All amounts payable under this Agreement are denominated in United States dollars, and You will pay all such amounts in United States dollars. You will pay for any costs incurred by Us due to an attempt to process an invalid payment by You. You bear sole responsibility to pay for accepted orders of the Service, regardless of how or if You charge Subscribers and regardless of any non-payment by any Subscriber.
6.5 Taxes. Other than federal and state net income taxes imposed on Us by the United States, You will bear all taxes, duties, and other governmental charges (collectively, "taxes") resulting from this Agreement. You will pay any additional taxes as are necessary to ensure that the net amounts received by Us after all such taxes are paid are equal to the amounts that We would have been entitled to in accordance with this Agreement as if the taxes did not exist.
6.6 Billing Address. You will provide Us with current billing and contact information, and will subsequently update this information within seven days of any change, or at any time upon request by Us.
6.7 Dispute Charges. You must notify Us within 60 days of any charges You believe are in error in order to receive an adjustment. If You fail to do so, You waive any such claim.
7. TERM AND TERMINATION
7.1 Term. This Agreement will commence upon the date You execute the Signup Form and continue until terminated in accordance with this Section 7.
7.2 Termination for Cause. If You fail to perform any of Your material obligations under this Agreement, including failure to pay any amounts owed to Us, We may terminate this Agreement immediately.
7.3 Termination for Convenience. We may terminate this Agreement at any time for convenience upon providing You at least 90 days prior written notice. You may terminate this Agreement at any time for convenience upon providing Us at least 14 days prior written notice.
7.4 No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, it will not be liable to the other because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of Us or You. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
7.5 Effects of Termination
(a) Suspension of Your access to the Service because of a delinquent account or due to termination of this Agreement will result in the immediate loss of access to Your Functionality by Subscribers. Upon such event, We may contact Subscribers to notify them that We will no longer make Your Functionality available. You indemnify Us for any claims resulting from such loss of access. Nothing in this paragraph should be construed to restrict Our rights under indemnity and limitation of liability provisions elsewhere in this Agreement.
(b) We will provide You a file of Your Data and Subscriber Data that pertains directly to You, within 30 days of request, if You submit a written request within 90 days of termination. If no such request is received, We may remove and permanently discard the data without notice.
(c) In addition, the following provisions will survive any expiration or termination of this Agreement: Sections 4.3, 7.4, 7.5, 9, 10, 11, 12, 13, and 14 as well as any indemnification obligations. The termination or expiration of this Agreement will not relieve You of the obligation to pay any fees that are due to Us under this Agreement.
8. WEBSERVIUS NAME AND TRADEMARK USAGE, OWNERSHIP
8.1 WebServius's Trademarks. You may advertise or otherwise promote Your Functionality as "powered by WebServius" or other such similar phrasing according to then-current branding guidelines which may be obtained from Us on request. Subject to the provisions of this Section, during the term of this Agreement, You will have the right to advertise Your Functionality with Our trademarks, trade names, service marks, and logos ("WebServius's Trademarks"). You will fully comply with all guidelines, if any, communicated by WebServius concerning the use of WebServius's Trademarks. We may modify any of WebServius's Trademarks, or substitute an alternative mark for any of WebServius's Trademarks, without notice.
8.2 Use of WebServius's Trademarks. You will not alter or remove any of WebServius's Trademarks affixed to or otherwise contained on or within the Service. Except as set forth in this Section, nothing contained in this Agreement will grant or will be deemed to grant to You any right, title, or interest in or to WebServius's Trademarks. All uses of WebServius's Trademarks and related goodwill will inure solely to Us and You will obtain no rights or goodwill with respect to any of WebServius's Trademarks, other than as expressly set forth in this Agreement, and You irrevocably assigns to WebServius all such right, title, interest, and good will, if any, in any of WebServius's Trademarks. At no time during or after the term of this Agreement will You challenge or assist others to challenge WebServius's Trademarks (except to the extent expressly required by applicable law) or the registration thereof or attempt to register any of WebServius's Trademarks or marks or trade names that are confusingly similar to those of Us. Upon termination of this Agreement, You will immediately cease to use all WebServius's Trademarks and any listing by You of WebServius's name in any telephone book, directory, public record, or elsewhere, must be removed by You as soon as possible, but in any event not later than the subsequent issue of such publication.
8.3 Proprietary Rights. Each party will own all right, title, and interest in and to its respective products, intellectual property, and related documentation. Neither party will act to jeopardize, limit, or interfere in any manner with the other party's ownership of or rights with respect to the other party's products. You will have only those rights in or to the Service granted to You pursuant to this Agreement.
8.4 Rights in the Service and WebServius Solution. We alone (and Our licensors, where applicable) own all right, title, and interest, including all related intellectual property rights, in and to the WebServius Technology, the WebServius Solution, and any Feedback provided by You or any other party relating to the WebServius Solution. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the WebServius Technology, or the intellectual property rights owned by Us. The WebServius name, the WebServius logo, and the product names associated with the Service are Our trademarks or those of third parties, and no right or license is granted to use them except as explicitly authorized in this Agreement.
9. PROMOTION OF YOUR FUNCTIONALITY
9.1 Use of Company Names. We may identify You in Our advertising and marketing materials as a customer of the WebServius Solution, and may use Your trademarks, trade names, service marks, and logos in such materials subject to Your reasonable guidelines. Furthermore, We may disclose some or all of the features of the Service that You are using, and the identity of Your Subscribers with their consent.
9.2 Disclosure of Metrics. We may disclose, in direct communications with specific individuals or entities at its sole discretion, various current and historical usage metrics included but not limited to the number of Subscribers and the volume and aggregate price of transactions between You and Subscribers. This right will survive the termination of the Agreement. We will act in good faith to minimize this disclosure by means such as anonymizing the metrics, disclosing aggregate metrics instead of metrics specific to You whenever possible, exercising a similar level of care in this disclosure as with its own confidential metrics, and not disclosing Your metrics directly to Your competitors or to parties known to be closely associated with Your competitors.
9.3 Promotion of Your Functionality. The availability of some or all of Your Functionality for computer-to-computer integration purposes may be advertised or otherwise promoted by Us, and/or listed by Us in various public directories or directories made available to Our partners, including computer-readable directories, unless We receive a written notice from You requesting to abstain from such activities. We are under no obligation to advertise, list, endorse or otherwise promote any part of Your Functionality.
9.4 Removal of Your Functionality Promotional Information. You agree that it may be difficult or impossible to withdraw advertisement and marketing materials and directory entries mentioned in Section 9.3 from 3rd parties once they have been published or submitted for publication, and therefore agree to bear any withdrawal costs in such eventuality.
10. LIMITED WARRANTY AND DISCLAIMERS
10.1 Limited Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
10.2 Internet Delays. The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. We disclaim any responsibility for any delays, delivery failures, or other damage resulting from such problems.
10.3 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, WE AND OUR LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY DATA. WE AND OUR LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICE WILL MEET Your REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET Your REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL DATA IS 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 US AND OUR LICENSORS.
11. COMPANY INDEMNIFICATION
11.1 Defense of Claims. You will defend Us and Our affiliates, including Our and Our affiliates' employees, directors, agents, and representatives ("WebServius Indemnified Parties") from any actual or threatened third party claim arising out of or based upon: (a) use of the Your Data, Subscriber Data, or Your Functionality including Functionality Data; (b) Your negligence or willful misconduct; or (c) Your breach of this Agreement. The WebServius Indemnified Parties will give You prompt written notice of the claim, grant You full and complete control over the defense and settlement of the claim, and assist You with the defense and settlement of the claim as You may reasonably request.
11.2 Intellectual Property Indemnification. You will indemnify each of the WebServius Indemnified Parties against (a) all damages, costs, and attorney fees finally awarded against any of them in any proceeding under Section 11.1; (b) all out-of-pocket costs (including reasonable attorney fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorney fees and costs incurred without Your consent after You have accepted defense of such claim); and (c) if any proceeding arising under Section 11.1 is settled, You will pay any amounts to any third party agreed to by You in settlement of any such claims.
12. CONFIDENTIAL INFORMATION
12.1 "Confidential Information" means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party's technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. The Service and related information will be Our Confidential Information. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
12.2 Restricted Use and Nondisclosure. During and after the term of this Agreement, each party will: (a) use the other party's Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party's Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 12; and (c) protect the other party's Confidential Information from unauthorized disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
12.3 Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
12.4 Existing Obligations. The obligations in this Section 12 are in addition to, and supplement, each party's obligations of confidentiality under any nondisclosure or other agreement between the parties.
12.5 Non-competition. You expressly agree not to use any information, knowledge, or know-how gained as a result of using the Service, the WebServius Solution, or the WebServius Technology to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions, or graphics of the Service; or (c) copy any ideas, features, functions, or graphics of the Service.
13. LIMITATION OF LIABILITY
13.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, WE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR YOUR SUBSCRIBERS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF WE ARE APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
13.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL OUR TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT during the 12 months preceding the date the claim arises.
13.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
14.1 Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party's business are the sole responsibility of that party.
14.2 Assignability. You may not assign its right, duties, or obligations under this Agreement without Our prior written consent, except to a successor-in-interest in connection with a merger, acquisition, or sale of all or substantially all assets if the successor-in-interest agrees in writing to fulfill all of the obligations under this Agreement and successor is not owned or controlled directly or indirectly by Our competitor. If consent is given, this Agreement will bind Your successors and assigns. Any attempt by You to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void. We may assign this Agreement at any time without notice or consent.
14.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and (i) if from You to Us, then by electronic mail as specified on the webservius.com web site, (ii) if from Us to You, then by electronic mail to an address You specified during registration or (iii) sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address of record and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given one business days following the date of electronic mailing, two business days following the date of physical mailing or one business day following delivery to a courier.
14.4 Force Majeure. We will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Our reasonable control, so long as We use commercially reasonable efforts to avoid or remove such causes of non-performance.
14.5 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with Our corporate policies regarding foreign business practices, You and Your employees and agents will not directly or indirectly make and offer payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government, including the United States Government (including a decision not to act), or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Us in obtaining, retaining, or directing any such business.
14.6 Export Control. The Service may use software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774.
14.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
14.8 Arbitration. If there is a dispute between the parties under this Agreement, the parties will agree upon and appoint one arbitrator no later than twenty (20) days after the notice of arbitration is received. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the American Arbitration Association (AAA) for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator will have at least 15 years of appropriate experience in the software industry and be independent of the parties. The arbitrator will conduct the arbitration in accordance with the applicable rules of the AAA. The arbitration will be held in King County, Washington. The arbitrator will limit discovery as reasonably practicable to complete the arbitration as soon as practicable. The arbitrator's decision will be final and binding on both parties. The costs and expenses of the arbitration will be shared equally by both parties. This Section will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
14.9 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party's right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
14.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to You under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
14.11 Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.
14.12 Subscriber Agreement. If You are subscribing or at a latter date subscribe to other parties' functionality through the WebServius Platform, such usage shall be in accordance with a WebServius Subscriber Agreement, which is incorporated herein by reference, and a link to which has been provided to You. The rights and obligations of both parties under this Agreement and the WebServius Subscriber Agreement shall be completely separate, except that We, at Our sole discretion, may offset Your obligations under one agreement using Our obligations (including but not limited to Your Net Balance) under the other agreement.
14.13 Entire Agreement. Except as specifically described in Section 14.12, this Agreement is the final and complete expression of the agreement between these parties regarding the licensing of the Service. This Agreement supersedes all previous oral and written communications regarding these matters, including any marketing materials or documentation provided by Us prior to the execution of this Agreement, unless specifically referred to and incorporated in this Agreement. No employee, agent, or other representative of Us has any authority to bind Us with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
14.14 Contact Us. Should You have any questions concerning this Agreement, or if You desire to contact WebServius for any reason, please contact email@example.com.