These TERMS OF SERVICE (this “Agreement”) is made between Subversive Labs, LLC, (“ClosetPilot”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You” or “Your”).
ClosetPilot provides certain services relating to the development, transmission, analysis, and management of digital communications and tools (the “Services”) through the web site located at www.ClosetPilot.com and such other sites as may be designated by ClosetPilot (each, the “Site” or collectively, the “Sites”). All access to and use of the Services available through the Site are subject to the terms of this Agreement. If You wish to access and use the publicly available portions of the Services and the Site, You may do so only in compliance with this Agreement. If You have placed or later place an order (whether through the Site, by email, phone or otherwise) with ClosetPilot (Your “Order”) seeking to access and use certain of the Services requiring registration, ClosetPilot is willing to accept Your Order and provide You with access to and use of those Services only if You comply with this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE YOU (1) HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) IF AN INDIVIDUAL, ARE 18 YEARS OR OLDER; AND (3) MEET THE OTHER QUALIFICATIONS SET FORTH IN THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first access or use the Services or the Site (the “Effective Date”). This Agreement consists of the following terms and conditions and each Order submitted by You and accepted by ClosetPilot, each of which is incorporated in and made a part of this Agreement.
Table of Contents: 1. Definitions 2. Changes to this Agreement 3. Changes to the Site and Services 4. Orders and Confirmation 5. Term 7. Trial/Free Subscription 8. Access to the Services 9. Software 10. Add-ons 11. Restrictions 12. Fees and Payment 13. Termination and Suspension 14. Ownership of IPR 15. Content 16. Warranties and Disclaimer 17. Indemnity 18. Limitations on Liability 19. Data Privacy 20. Confidentiality 21. Claims of Infringement 22. Linked Sites 23. Disputes 24. Governing Law 25. General 26. OEM Terms and Conditions
Definitions. Capitalized terms used in this Agreement will have the definitions given in this Agreement, and other terms will have their plain English meaning as commonly interpreted in the United States.
Changes to this Agreement. ClosetPilot reserves the right, at any time, to change or modify this Agreement by making such change or modification available on the Site or by providing other notice to You. Any such change or modification will be effective immediately after posting on the Site or such other notice. As applicable, You will be deemed to have agreed to such change or modification of this Agreement through Your continued use of the Site or Services. You may also enter into one or more statements of work with ClosetPilot for onboarding, delivery, optimization or similar services included in the Services (each, a “SOW”). Each SOW shall be governed by this Agreement in addition to the terms of such SOW.
Changes to the Site and Services. The features and functions of the Service, including the APIs, may change over time. It is Your responsibility to ensure that calls or requests You make to the Service are compatible with then-current APIs. Although ClosetPilot endeavours to avoid changes to the APIs that are not backwards compatible, if any such changes become necessary, ClosetPilot will use commercially reasonable efforts to notify You prior to implementation. Notwithstanding the foregoing, You understand that ClosetPilot may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
Orders and Confirmation. ClosetPilot will confirm Your Order either through the Site at the time You submit Your Order or by providing You with access to the Services (each, a “Confirmation”). If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the Services provided to You. By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.
Term. If You have ordered a non-trial subscription to the Services, then the term of this Agreement will commence on the Effective Date and continue for the initial period stated in the applicable Order or Confirmation for the Services (the “Initial Term”) and will thereafter automatically renew for successive additional periods of equal duration or as otherwise set forth in such Order or Confirmation (the “Renewal Term”, and together with the Initial Term, the “Term”). If no Initial Term is stated in the applicable Order or Confirmation for the Services, this Agreement will continue for an Initial Term of one month and will thereafter automatically renew for successive additional one-month Renewal Terms. Unless terminated as set forth herein, the Term will continue to renew until You notify ClosetPilot that You do not wish to renew the Agreement at least 2 days prior to the end of the then-current Term. In all other cases, the Term will continue until terminated as set forth herein.
Subscription; OEM Service. During the Term, ClosetPilot will provide You with a limited subscription to access and use the Services subject to Confirmations under this Agreement, solely for Your own use in connection with Your own business purposes and not for resell, lease, license or sublicense; Your rights to access and use the Services are personal, non-exclusive, non-transferable and non-sublicensable.
Trial/Free Subscription. If You have ordered a trial subscription to the Services or a subscription to any free Services, as indicated in an Order (a “Trial/Free Subscription”), then the following additional terms shall apply during any such Trial/Free Subscription: (a) the Term will continue for the period of the Trial/Free Subscription indicated in the Order and will thereafter expire unless You place an Order for a non-trial subscription to the Services prior to the expiration thereof; (b) this Agreement may be terminated by ClosetPilot, at any time, in ClosetPilot’s sole discretion, for any reason or no reason, upon notice to You; © ClosetPilot shall have the right to include its trademark or service mark (including any name, logo, slogan or product or service names) in email communications sent by You; and (d) Section 13(Fees and Payment), Section 17(a) (Warranties and Disclaimer – By ClosetPilot), and Section 18(a)(Indemnity – By ClosetPilot) will not be applicable to You.
Access to the Services. Upon Confirmation of Your Order by ClosetPilot, You will be granted access to the Services using the username and password applicable to Your Account (each such username and password, an “Account ID”). Each Account ID is personal in nature and may be used only by You or, if You are an organization, by designated employees within Your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with this Agreement. You will ensure the security and confidentiality of each Account ID and will notify ClosetPilot immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You are solely responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You and each User to connect to, access, and use the Services and the Sites.
Software. Software or code available on or for download through the Site or Services (“Software”), if any, are protected by IPR (as defined below). Unless otherwise expressly stated in a license or other agreement separate from this Agreement that You may have entered into (or may enter into) with ClosetPilot relating to any Software (each such license or other agreement, a “Software License Agreement”), ClosetPilot grants You a limited, non-exclusive, non-transferable right and license to download, install and execute the Software in accordance with the instructions provided on the Site and solely for Your own business purposes in connection with Your access to and use of the Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of ClosetPilot. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
Add-ons. ClosetPilot may make available through the Services additional optional, non-essential features, functionality and services (“Add-ons“) offered by third-party partners (each, an “Add-on Partner”). Your use of Add-ons is subject to this Agreement and any other agreement separate from this Agreement that You may enter into (or may have entered into) relating to the Add-on directly with the applicable Add-on Partner (each, an “Add-on Service Agreement”). Except as set forth in this Agreement, the terms of any Add-on Service Agreement will control in the event of a conflict between the terms of this Agreement and such Add-on Service Agreement. Add-ons may be subject to additional Fees as set forth on the Site or Confirmation. You acknowledge ClosetPilot is not a party to the Add-on Service Agreement between You and the Add-on Partner with respect to that Add-on, and the Add-on Partner of each Add-on is solely responsible for that Add-on, the content therein and any claims that You or any other party may have relating to that Add-on or Your use of that Add-on. By purchasing an Add-on, You give consent for ClosetPilot to share Your Content and user information with the Add-on Partner as necessary in order to provide You with the Add-on. The license granted to You to use any Add-on is personal to You, and is not sublicensable or transferrable to Your end users, including any OEM User. You will not provide or resell Add-ons to others. Notwithstanding the terms of any Add-on Service Agreement, ClosetPilot may change, modify or discontinue any Add-on at any time and without notice to You, subject to any continuing rights You may have under the Add-on Service Agreement.
Restrictions. You acknowledge the Services, Sites, Software, and the databases, hardware and other technology used by or on behalf of ClosetPilot to provide the Services and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of ClosetPilot. You will not, and will not permit any third party (including any OEM User, as applicable) to: (a) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (b) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; © use automated scripts to collect information from or otherwise interact with the Site, Services or any Software; (d) use the Site, Services or any Software to intimidate or harass any other people or entities; (e) alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; (h) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software. ClosetPilot does not intend uses of the Service to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”) or similar Laws (as defined below) and makes no representations that the Service satisfies the requirements of such laws. If You are (or become) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), You agree not to use the Service for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA). You will not allow any access to or use of the Services by anyone other than Your authorized Users or OEM Users (as applicable), and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
Fees and Payment.
Fees. You agree to pay ClosetPilot all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site (“Fees”). All Fees will be billed as indicated in each Order or Confirmation. Unless ClosetPilot and You expressly agree otherwise in writing, all Fees are payable in United States dollars. You will also be responsible for all use, sales, and other taxes imposed on the Services, other than taxes that are imposed on or measured by the net income, property tax or payroll taxes of ClosetPilot. ClosetPilot may change any portion of the Fees by posting the changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next Renewal Term.
Payment Terms. If the applicable Order or Confirmation does not specify the payment terms, the initial payment of Fees specified under such Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card, or direct withdrawal or ACH payment from a bank account, as an applicable payment mechanism under this Agreement, You grant ClosetPilot the right to charge the credit card or debit the bank account provided to ClosetPilot for all Fees incurred under this Agreement. Except as expressly set forth herein or agreed to in writing with ClosetPilot, all Fees will be non-refundable once paid to ClosetPilot, including upon any termination or suspension of this Agreement. Subject to Section 13© (Fee Disputes), if You are overdue on any payment of Fees and fail to pay within five business days of a written notice of overdue payment, ClosetPilot may charge You a late fee equal to the lesser of 1½% per month or the maximum amount permitted under applicable law. If ClosetPilot requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses.
Fee Disputes. In the event You dispute any portion of the Fees paid or payable by You under this Agreement, You must provide written notice to ClosetPilot within 60 days of the invoice and the parties will work together to resolve the applicable dispute promptly. If You do not provide written notice of Your fee dispute within such 60-day period, You will not be entitled to dispute any Fees paid or payable.
Termination and Suspension.
Termination. This Agreement may be terminated by ClosetPilot, at any time, in ClosetPilot’s sole discretion, upon any breach by You of this Agreement that remains uncured 10 days after ClosetPilot delivers written notice to You of such breach.
Suspension. Without limiting ClosetPilot’s right to terminate this Agreement, ClosetPilot may also immediately and indefinitely suspend Your access to the Sites or Services, with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or upon any other conduct deemed inappropriate or detrimental to the Services by ClosetPilot including, but not limited to, rogue script, bad send and unauthorized takeover or other malicious activity on Your Account.
Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) all rights and subscriptions granted to You under this Agreement will terminate; (ii) You will immediately cease all use of and access to the Sites and Services; (iii) all Fees then owed by You will become immediately due and payable; (iv) You will immediately either return to ClosetPilot or, at ClosetPilot’s discretion, destroy the ClosetPilot Confidential Information in Your possession or control; and (v) ClosetPilot shall delete any of Your Content held by ClosetPilot in accordance with ClosetPilot’s then-current data retention policy. The following sections of this Agreement will survive any expiration or termination of this Agreement: Section 1 (Definitions), Section 7(d) (Trial/Free Subscription), Section 9 (Applicable Policies), Section 11(Add-ons), Section 12 (Restrictions), Section 13 (Fees and Payment), this Section 14© (Termination and Suspension – Effect of Termination), Section 15 (Ownership of IPR), Section 16(d) (Content – Service Data), Section 16(e) (Content – Customer Feedback), Section 17© (Warranties and Disclaimer – Disclaimer), Section 18(b) (Indemnity – By You), Section 19 (Limitations on Liability), Section 20 (Data Privacy), Section 21 (Confidentiality), Section 24 (Disputes), Section 25 (Governing Law), Section 26(General) and Section 27© (Use of the Services by OEM Users).
Ownership of IPR.
By ClosetPilot. ClosetPilot retains all right, title and interest, including, without limitation, all IPR in and to the Sites, Services, Technology, ClosetPilot Content (as defined below), any Software, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The ClosetPilot name, logo and the product and service names associated with the Services are trademarks of ClosetPilot (or its third party providers), and no right or license is granted to You to use them.
By You. You retain all right, title and interest, including, without limitation, all IPR in and to Your products and services and Your Content (as defined below) and any additions, improvements, updates, and modifications thereto. ClosetPilot acknowledges that it is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to ClosetPilot to use them, except as expressly set forth herein.
ClosetPilot Content. ClosetPilot provides You with access to certain data, information and other content through the Site and Services (“ClosetPilot Content”). Subject to this Agreement, each User and OEM User (as applicable) may: (i) access the ClosetPilot Content solely for Your own business purposes in connection with the use of the Services. Except as expressly provided in this Agreement, You will not, and will not permit any User or OEM User (as applicable) to alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the ClosetPilot Content. Certain of the ClosetPilot Content includes or is based on data, information and content from independent third party providers (“Third Party Content”). ClosetPilot uses commercially reasonable measures to ensure that the Third Party Content is reliable, but ClosetPilot has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Services.
Your Content. You will be solely responsible for all data, information and other content provided by, or collected or obtained from, You or any of Your Users or OEM Users (as applicable) through the Services, including, without limitation, all personal data relating to You or any of Your Users, customers, OEM Users, service providers, employees, contractors or agents (“Your Content”). You, on behalf of Yourself and each OEM User (as applicable), grant to ClosetPilot all necessary rights and licenses in and to Your Content necessary for ClosetPilot to provide, optimize and maintain the Services, to manage the ClosetPilot platform, system administration and security, comply with applicable Laws, and to investigate and prevent system abuse or fraud, unauthorized access to or use of the Services, breaches of this Agreement or applicable policies, and other wrongful behavior. As between You and ClosetPilot, You retain all of Your rights in and to Your Content and do not convey any proprietary interest therein to ClosetPilot other than the licenses set forth herein. You will maintain an adequate back-up of all Your Content and ClosetPilot will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your Content. ClosetPilot may take remedial action if any of Your Content violates this Agreement, provided that ClosetPilot is under no obligation to review any of Your Content for accuracy or potential liability.
Sensitive Data. Sensitive Data (as defined below) will not be provided to ClosetPilot at any time and ClosetPilot will have no liability whatsoever for Sensitive Data, whether in connection with a security incident or otherwise. For purposes of this Agreement, “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (iii) employment, financial, genetic, biometric or health information, (iv) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (v) account passwords, (vi) date of birth, (vii) criminal history, (viii) mother’s maiden name, or (ix) any other information that falls within the definition of “special categories of data” under GDPR (defined in Section 20(b) below), or any other applicable law relating to privacy and data protection.
Service Data. ClosetPilot will have the right to collect, extract, compile, synthesize and analyze aggregated, non-personally identifiable information or data (data or information that does not identify You or any other entity or natural person as the source thereof) resulting from Your or any OEM User’s (as applicable) access to the Site and Your or any OEM User’s (as applicable) use and operation of the Services including, by way of example and not limitation, information relating to volumes, frequencies, bounce rates, or any other information regarding the communications You and any OEM User (as applicable) generates and sends using the Services (collectively, “Service Data”). To the extent Service Data is collected or generated by ClosetPilot, such data will be solely owned by ClosetPilot, constitutes “ClosetPilot Content” hereunder and may be used by ClosetPilot for any lawful business purpose without a duty of accounting to You or any of Your OEM Users, customers or recipients.
Customer Feedback. If You or any OEM User provides ClosetPilot feedback or suggestions about the Service, ClosetPilot may use that information without obligation to You or such OEM User, and You, on behalf of Yourself and each OEM User, hereby irrevocably assigns to ClosetPilot all right, title, and interest in such feedback or suggestions.
Warranties and Disclaimer.
By ClosetPilot. ClosetPilot represents and warrants to You that ClosetPilot will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. ClosetPilot’s sole obligation and Your sole and exclusive remedy in the event of any failure by ClosetPilot to comply with the foregoing sentence will be for ClosetPilot to, at ClosetPilot’s sole discretion, re-perform the affected Services or refund to You the Fees You have actually paid for the affected Services for the days in which the failure occurred. Force Majeure. ClosetPilot relays on Third Party software and their underlying technology, to which ClosetPilot has not control of to perform its commercial activity. ClosetPilot will not be responsible for failure or delay of performance if caused by an event outside the reasonable control, including but not limited to an electrical, internet, or telecommunication change, change in Third Party API, protocol or underlying technology or outage not caused by ClosetPilot; government restrictions; or illegal acts of third parties.
By You. You hereby represent, warrant, and covenant for the benefit of ClosetPilot that: (i) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (ii) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; (iii) Your Content, and any other data, information or content You or any OEM User (as applicable) provides to ClosetPilot in connection with this Agreement and Your and each OEM User’s (as applicable) access to the Site and use of the Services, is correct and current and does not or will not violate this Agreement; (iv) You have all necessary right, title, interest and consent necessary to allow ClosetPilot to use Your Content for the purposes for which You or any OEM User (as applicable) provides Your Content to ClosetPilot, including, without limitation, the delivery of any communications; (v) You will not and will not allow any User or OEM User (as applicable) to export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable; (vi) You will not and will not allow any User or OEM User (as applicable) to remove or export from the United States or allow the export or re-export of the Service (A) into (or to a national or resident of) any embargoed or terrorist-supporting country, (B) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, © to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (D) otherwise in violation of any export or import Laws; (vii) You are not and will ensure each User and OEM User (as applicable) are not, located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list referred to in subsection (vi) immediately above (for more information, see the U.S. Department of Treasury website at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx); (viii) You will comply with, and will be responsible for each OEM User’s (as applicable) compliance with, any applicable international, federal, state or local treaties, laws, rules, regulations or ordinances (“Laws”) regarding Your or the OEM Users’ (as applicable) use of or access to the Site or Services or regarding Your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited; and (ix) if You will make the Service available OEM Users as an integrated part of the OEM Service, You (A) will not, without ClosetPilot’s prior written approval, make any representation, warranty or guarantee to OEM User on behalf of ClosetPilot concerning the Service and (B) will only offer the Service to any OEM Users as an integrated part of the OEM Service and not for resale without integration.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 17(a), THE SITES AND SERVICES (AND ALL ClosetPilot CONTENT PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND ClosetPilot AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NEITHER THE SOFTWARE, THE SITES NOR THE SERVICES ARE DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES. NEITHER ClosetPilot NOR ITS LICENSORS WARRANT THAT THE OPERATION OF THE SOFTWARE OR THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ClosetPilot, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES OF ClosetPilot EXPRESSLY SET FORTH IN SECTION 17(a).
By ClosetPilot. ClosetPilot will not, at its expense, defend You against any claims brought against You by a third party that Your use of the Services in accordance with this Agreement infringes any copyright, trade secret or trademark right. If You are, or ClosetPilot reasonably believes You may be, enjoined from using the Services, ClosetPilot, at ClosetPilot’s option and expense, may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing, or terminate this Agreement with respect to such Services. This Section 18(a) constitutes ClosetPilot’s sole and exclusive liability, and Your sole and exclusive remedy, for any third party claims under this Agreement.
By You. You hereby indemnify, defend, and hold harmless ClosetPilot and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (the “ClosetPilot Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any ClosetPilot Indemnified Party arising from Your or the OEM Users (as applicable) accessing or using the Site, Services, Software, Your Content, ClosetPilot Content, any other communication generated or sent through the Services or the OEM Service (as applicable), or any breach of this Agreement. ClosetPilot will provide You with notice of any such claim or allegation, and ClosetPilot will have the right to participate in the defense of any such claim at its expense.
Limitations on Liability.
NO SPECIAL DAMAGES. IN NO EVENT WILL ClosetPilot BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SOFTWARE, TECHNOLOGY, SERVICES (OR ANY ClosetPilot CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
CUMULATIVE LIABILITY. ClosetPilot’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO ClosetPilot HEREUNDER IN THE ONE MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, US$10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT ClosetPilot WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, ClosetPilot’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
SPECIAL LIMITATIONS. FOR THE PURPOSE OF CLARITY, ClosetPilot WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (I) SENSITIVE DATA SENT TO ClosetPilot; (II) VIOLATION OF ANY LAW BY ClosetPilot WHEN ACTING AT YOUR OR ANY OEM USER’S (AS APPLICABLE) DIRECTION; OR (III) THE SENDING BY ClosetPilot OF YOUR OR ANY OEM USER’S (AS APPLICABLE) EMAILS, INCLUDING ANY CLAIMS AGAINST ClosetPilot DUE TO YOUR OR ANY OEM USER’S (AS APPLICABLE) SENDING OR DATA COLLECTION PRACTICES OR YOUR CONTENT.
General Obligations and Limitations. In respect of Your or the OEM Users’ (as applicable) use of the Site and Services and in relation to any personally identifiable and other data and information You or any OEM User (as applicable) provides to ClosetPilot through the Site and Services, You expressly consent to the use and disclosure of that data and information. You are responsible for complying with all applicable data protection and privacy Laws in respect of Your or any OEM User’s use of the Services and with regard to any personal data that You or any OEM User provides to ClosetPilot through the Services. In particular, You must ensure You have properly informed and obtained all necessary rights, authorizations or consents from any data subjects to whom the data relates, to enable ClosetPilot to lawfully access their personal data under this Agreement and to process their personal data outside of their country of residence. You acknowledge that security of information transmitted through the Internet can never be guaranteed. ClosetPilot is not responsible for any interception or interruption of any communications through the Internet or for changes to or loss of Your Content. ClosetPilot may process and store Your Content in the United States or any other country in which ClosetPilot or its agents maintain facilities and, by using the Services, You consent to this processing and storage of Your Content.
EU Data Privacy. ClosetPilot cannot guarantee to provide adequate privacy protection for the transfer of personal data originating from the EU and/or Switzerland (within the meaning of EU data protection laws). For the purposes of this Agreement, the terms “personal data”, “processing” and “data subject” have the same meanings as those given to them in EU General Data Protection Regulation 2016⁄679 (“GDPR“). If Your use of the Services requires ClosetPilot to process personal data falling within the scope of GDPR, you should not attempt to use ClosetPilot Services.
Definitions. For purposes of this Agreement, “Confidential Information” means all nonpublic information disclosed or made available under this Agreement by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to the Technology, the provision or receipt of the Services, or the Disclosing Party’s technology, finances, operations, customers or business; provided, however, “Confidential Information” does not include (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Receiving Party or by any of the Receiving Party’s Representatives (as defined below); (ii) any information that was in the Receiving Party’s possession prior to the time it was first made available to the Receiving Party or any of the Receiving Party’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives, provided that the source of such information was not and is not known to the Receiving Party to be bound by any contractual or other obligation of confidentiality to the Receiving Party or to any other person with respect to any such information; (iii) any information that becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Receiving Party to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other person with respect to any of such information; or (iv) any information that is independently developed by the Receiving Party or any of the Receiving Party’s Representatives without the use of or reference to any of the Disclosing Party’s Confidential Information. For purposes of this Section, a party’s “Representatives” will be deemed to include each person or entity, as applicable, that is or becomes (A) a subsidiary or other affiliate of such party, (B) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates, and © an OEM User. For the avoidance of doubt, (1) the Services, Technology, and ClosetPilot Content are the Confidential Information of ClosetPilot, (2) Service Data will not be Your Confidential Information.
Confidentiality Obligations. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information with the degree of care the Receiving Party uses to protect its own confidential information of like nature, but in no case less than reasonable care. The Receiving Party agrees that, except as expressly directed by the Disclosing Party, it will not at any time during or after the Term: (i) disclose any Confidential Information to any third party (other than the Receiving Party’s Representatives); (ii) permit any third party (other than the Receiving Party’s Representatives) to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (iii) use any of the Confidential Information for any reason other than for the purposes of this Agreement. The Receiving Party may disclose Confidential Information to its Representatives having a need to receive the Confidential Information in the performance of their duties under this Agreement; provided, however, that such Representatives are informed of the confidentiality obligations hereunder and the Receiving Party is responsible for such Representatives’ compliance therewith. If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information pursuant to any Law, order, subpoena or document discovery request, it will furnish written notice of such disclosure to the Disclosing Party so long as such notice is not prohibited by Law. When permitted, the Receiving Party will provide notice to the Disclosing Party of such disclosure as soon as practicable so that the Disclosing Party has an opportunity to seek a protective order or take other efforts to modify or restrict the disclosure through legal means. The Receiving Party will reasonably cooperate in such efforts at the Disclosing Party’s reasonable expense. Each party has the discretion to accept service of any subpoena or other document request without a requirement for such party seeking such disclosure to comply with applicable rules of service. Each party acknowledges that its breach of this Section may cause irreparable damage to the other party and hereby agrees that the other party will be entitled to seek injunctive relief under this Section, as well as such further relief as may be granted by a court of competent jurisdiction. In the event of any conflict between the Privacy Policies and the provisions of this Section, the provisions of this Section shall control.
Claims of Infringement. Just as ClosetPilot requires users of the Site to respect the IPR of ClosetPilot, its affiliates, and other third parties, ClosetPilot respects the IPR of Users of the Site and other third parties.
Linked Sites. The Site and communications sent through the Services may contain links to third-party sites that are not under the control of ClosetPilot, and ClosetPilot is not responsible for any content on any linked site. If You access a third-party site from the Site or from a communication sent through the Services, then You do so at Your own risk. ClosetPilot provides links only as a convenience, and the inclusion of the link does not imply that ClosetPilot endorses or accepts any responsibility for the content on those third-party sites. ClosetPilot welcomes links to the Site. You may establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by ClosetPilot or any group or individual affiliated with ClosetPilot. You will not (a) use on Your site any ClosetPilot Content or IPR appearing on the Site in establishing the link; or (b) frame or otherwise incorporate into another site the ClosetPilot Content IPR appearing on the Site without prior written consent.
Disputes. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section 24. If any Dispute cannot be resolved through negotiations between the parties within five days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the International Chamber of Commerce (“ICC”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by ClosetPilot. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
Governing Law. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A., as such laws apply to contracts between Colorado residents performed entirely within Colorado. Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in a federal court in the District of Colorado, U.S.A., or in state court in Denver, Colorado, U.S.A., and each party irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts.
General. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the Law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of ClosetPilot. Any assignment in violation of the foregoing will be null and void. ClosetPilot may assign this Agreement to any party that assumes ClosetPilot’s obligations hereunder. This Agreement does not confer any benefits on any third party unless it expressly states that it does. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. If You (or any of Your customers) is an agency, department, or other entity, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Service was developed fully at private expense. ClosetPilot may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the ClosetPilot web site and for other marketing and promotional purposes relating to the Services.
OEM Terms and Conditions. This Section 27 sets forth the terms and conditions upon which You will make the Service available to OEM Users as an integrated part of the OEM Service. The terms set forth in this Section 27 shall be in addition to, and not in lieu of, the terms set forth elsewhere in this Agreement.
Integration and Use of the ClosetPilot Interface. ClosetPilot will provide You with the right to integrate the Service into the OEM Service through one or more interfaces for the Service designated by ClosetPilot during the Term (each, a “ClosetPilot Interface”) and offer the Service to OEM Users as an integrated part of the OEM Service. You will access the Service only through the ClosetPilot Interfaces designated by ClosetPilot, for purposes of integrating the Service into the OEM Service.
OEM Account. You will be provided with an administrative account to manage access to and use of the Service (the “OEM Account”). The OEM Account may be accessed and used only by You for purposes of (i) establishing and administering OEM User access to the Services and (ii) utilizing the Service to send email messages to OEM Users in connection with Your business. You will be solely responsible for all use of the OEM Account. You will ensure the security and confidentiality of all usernames and passwords associated with the OEM Account and will notify ClosetPilot immediately if any such information is lost, stolen or otherwise compromised. You will be fully responsible for all liabilities and damages incurred through use of the OEM Account (whether lawful or unlawful). Any transactions completed through any OEM Account will be deemed to have been completed by You. In no event will ClosetPilot be liable for the foregoing obligations or the failure by You to fulfill such obligations.
Use of the Service by OEM Users. Prior to allowing any OEM User to access or use any OEM Service, including any portion of the Service, You will require that the OEM User become legally bound by an agreement covering the use of the OEM Service with You (an “OEM User Agreement”). You will be responsible for preparing the OEM User Agreement. The OEM User Agreement will include terms consistent with Your rights and obligations under this Agreement and at least as protective of the Service and the interests of ClosetPilot as those set forth Exhibit A hereto, but in no case less protective of the Service and the interests of ClosetPilot than of the OEM Service and Your interests in the OEM User Agreement. Upon request by ClosetPilot, You will provide ClosetPilot with a copy of the OEM User Agreement (including any prior versions thereof) and verify that each OEM User has agreed to be legally bound by the OEM User Agreement. You assume all responsibility and liability for the actions of all OEM Users, including all use of or access to the Service by each OEM User or by You on behalf of any OEM User and will be responsible for each OEM User’s compliance or failure to comply with the OEM User Agreement. You will promptly notify ClosetPilot upon becoming aware of any breach of any OEM User Agreement and will enforce the terms of each OEM User Agreement against each OEM User. If You fail to enforce the OEM User Agreement against any OEM User, upon the request of ClosetPilot, You will provide ClosetPilot with such authority and such information regarding such OEM User as is required for ClosetPilot to enforce the OEM User Agreement directly against that OEM User.