SOCKETLABS TERMS OF SERVICE AGREEMENT
EFFECTIVE: May 15, 2018
1. SCOPE OF AGREEMENT
This Terms of Service (“Agreement”) is made between SocketLabs Acquisition, LLC (“SocketLabs”, “we”, “us” or “our”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “you” or “your”).
SocketLabs provides certain content, code, software and services related to the creation, delivery, receipt, processing, analysis and tracking of email messages, as well as other content, code, software and services that it may offer from time to time (collectively the “Services”) through its websites at www.socketlabs.com, cp.socketlabs.com, support.socketlabs.com and such other sites as SocketLabs may use or designate from time to time (“Site” or “Sites”). Use of the Sites and Services are governed by the terms of this Agreement. SocketLabs is willing to provide the Sites and Services to you, only if you agree to the terms of this Agreement. If you do not agree to the terms of this Agreement, SocketLabs is not willing to provide you with the Sites and Services, and you should not use the Sites or Services. Your use of the Sites or Services indicates your acceptance to this Agreement, which is effective upon your first use of the Site or Services. The Sites and Services are not available to individuals under the age of 18 or who do not meet any of the other qualifications included in this Agreement. You represent and warrant that you are at least 18 years of age and that you have the right and authority to enter into this Agreement and that all of the information you provide will be complete and accurate. If you are registering on behalf of a corporation or other entity, you warrant that you have the authority to bind the corporation or other entity. You agree to be financially and otherwise responsible for your use of the Sites and Services and to comply with your responsibilities and obligations as stated in this Agreement.
2. MODIFICATIONS TO THIS AGREEMENT
We may amend or modify this Agreement at any time by posting a revised version on the Site or by otherwise notifying you in accordance with the other methods provided for in this Agreement. The modified Agreement will become effective immediately upon the earliest date of posting or other such notice if given. Continued use of the Sites or Services or non-termination of any Order or Account after the effective date of any modifications to this Agreement indicates your acceptance of the modified Agreement, which you agree to be bound by. It is your responsibility to check the Sites regularly for modifications to this Agreement. Although we may employ additional notification methods, we are not required to do so, or continue to do so.
Capitalized terms that are not otherwise defined will have the meaning given to them as set forth below:
“Personal Data” means: any data that could potentially identify a specific individual.
“Protected Parties” means SocketLabs, its shareholders, members, directors, managers, officers, employees, contractors, subsidiaries, representatives, agents, service providers, partners, affiliates, licensors, suppliers and permitted assigns.
“Sensitive Data” means: a) social security numbers, passport numbers, drivers license numbers (or any similar identifiers), health information, biometric data, religious, political or racial affiliations, sexual orientation, credit card numbers (other than the last 4 numbers), date of birth, mother’s maiden name, financial, education or employment information, or b) any information which if disclosed without authorization, could result in economic, reputational, privacy or other harm to the data subject or owner of such data and c) any information that is deemed private, confidential, sensitive or restricted under applicable law or regulation.
“User Data” shall be defined as all data and content created, transmitted or provided by or obtained from you through your use of the Sites and Services including but not limited to messages, files, lists, email addresses and images.
4. PRIVACY & ACCEPTABLE USE POLICIES
You use of the Sites and Services is also subject to our Acceptable Use Policy (“AUP”) and Privacy Policies (“Privacy Policies”), collectively the (“Other Policies”), which are incorporated herein by reference, and which are available at http://www.socketlabs.com/legal or other such area on the Sites as designated by SocketLabs from time to time. Your use of the Sites or Services indicates your acceptance of and agreement to the Other Policies as an integral part of this Agreement.
5. USER DATA
You are fully and solely responsible for the User Data and agree and acknowledge that a) you are the owner or authorized user of all User Data and that SocketLabs is not the author, publisher, owner or licensor of the User Data and b) SocketLabs is merely acting as a passive conduit for User Data and is not undertaking any obligation or liability relating to User Data except as otherwise provided for herein.
You instruct SocketLabs to collect, analyze, monitor, use and store User Data for the purpose of helping ensure your compliance with the terms of this Agreement, to provide features in the Sites and Services and to improve the quality of the Sites and Services. SocketLabs shall maintain reasonable measures to protect the security, confidentiality and integrity of User Data, however this is not a guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of any of our safeguards or measures.
SocketLabs will not disclose User Data to third parties except: a) to our service providers, agents, representatives and vendors that are necessary to provide the Sites or Services; b) to any law enforcement or government agency if requested, or if we believe that your conduct may violate applicable law; c) as required by law; or d) in response to a subpoena or other compulsory legal process, provided that we provide written notice to you at least seven days prior to disclosing User Data (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
User Data shall belong solely and exclusively to you and SocketLabs does not acquire any ownership in User Data, however you agree that SocketLabs has the right to compile and distribute anonymous statistical data obtained from User Data and such data will not be considered User Data and all rights thereto shall be owned exclusively by SocketLabs forever and may be used by SocketLabs for any lawful business purpose without a duty of accounting to you. SocketLabs may change its practices and limitations concerning storage and any retention periods of User Data, at any time without notice. You further agree that SocketLabs has no responsibility or liability whatsoever for the deletion, loss, unintended disclosure of, or failure to store User Data.
6. ACCOUNTS, PASSWORDS, AND SECURITY
When you initially signup or register for any area of the Sites or Services that require signup or registration, upon approval from SocketLabs, an account will be created for you “Account”. It is possible to have more than one Account; however, this Agreement will refer to Account when it means one or more accounts.
You must complete the sign-up or registration process by providing us with current, complete and accurate information as prompted by the applicable signup or registration form. You agree to notify SocketLabs promptly of any changes to this information as required to keep it current, complete and accurate. You also will choose a password. You are entirely responsible for maintaining the security and confidentiality of your passwords, your Account and any other confidential information relating to your Account or any users associated with your Account. Furthermore, you are entirely responsible for any and all activities that occur with your Account by you or any user associated with your account as well as any unauthorized use of your Account.
You are responsible for all fees resulting from use of your Account, including but not limited to unlawful or unauthorized use, in which case you are also responsible for taking steps to prevent its further occurrence.
You agree to notify SocketLabs immediately of any unauthorized use of your Account or any other breach of security. SocketLabs will not be liable for any loss that you may incur as a result of someone else using your password or Account, either with or without your knowledge. However, you could be held liable for losses incurred by SocketLabs or another party due to someone else using your Account or password. You may not use anyone else’s Account at any time, without the written permission of the Account holder.
You may not assign or transfer your Account without the prior express written consent of SocketLabs.
An Order is created whenever you ask us (electronically or otherwise) to create an Account or modify the Services available to you or your Account, such as without limitation, signups, upgrades, downgrades, additional resources, additional features or additional servers.
Upon approval from SocketLabs, Orders are estimated to be fulfilled within one business day, however in some cases it may take longer and we make no guarantee regarding the time it will take to fulfill an Order or provision Services. SocketLabs reserves the right to refuse the Services or fulfillment of any Order, for any reason, at its sole discretion, upon notice to you.
SocketLabs may assign dedicated resources to you or your Account, including but not limited to hardware or IP addresses, however SocketLabs is under no obligation to do so, and may un-assign or reassign any dedicated resources as SocketLabs deems necessary. These resources are and shall remain the exclusive property of SocketLabs.
8. FEES, PAYMENTS & TAXES
You must obtain and pay for all equipment and third-party services (e.g., computer equipment and internet access) required for you to access and use the Sites and Services. You agree to pay all fees for the Services according to your Order(s) and the terms of this Agreement. Failure to use the Sites or Services will not be deemed a basis for refusing to pay any charges. Fees for each Order are billed separately on its billing date. Recurring charges for each Order are collected in advance on a monthly basis (or annual basis for Orders specifying annual payments) on the billing date. Non-recurring fees, such as message and bandwidth overages, are billed in arrears.
SocketLabs reserves the right to change fees or institute new fees for access to or use of the Sites or Services upon 30 days notice to you. Continued use of the Sites or Services or non-termination of any Order or Account after fee changes or additions are effective, constitutes your acceptance of the changes.
Failure to pay any fee is a material breach of this Agreement and grounds for termination by SocketLabs. If payment is not received by SocketLabs from the card issuer or its agents, you agree to pay all amounts due upon demand by SocketLabs. Each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that SocketLabs is authorized to charge your designated card. Your card issuer’s agreement governs your use of your designated card in connection with SocketLabs, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You agree that SocketLabs may (at its option) accumulate fees incurred during your monthly (or other) billing period and submit them as one or more aggregate fees during or at the end of each period, and that SocketLabs may delay obtaining authorization from your card issuer until submission of the accumulated fee(s). This means that accumulated fees may appear on the statement you receive from your card issuer.
You agree that SocketLabs may submit charges for fees each month, year or as otherwise necessary, without further authorization from you, until you provide prior notice (in accordance with our verification procedures, as may be established by SocketLabs from time to time in its sole discretion) that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before SocketLabs reasonably could act on your notice.
If you believe there is an error on any invoice or charge, you must notify us in writing. Your dispute must include sufficient facts for SocketLabs to investigate your claims and be received by SocketLabs prior to 30 days following the date of the invoice or charge. You agree that unless we receive such notice within 30 days following the date of the invoice or charge, the invoice or charge (and its related details, including but not limited to fees, taxes, usage and services provided) is deemed conclusively accurate and you waive your right to dispute the same.
All fees will be exclusive of applicable sales or other taxes, except as required by law. You will be responsible for all use, sales, and other taxes imposed on the Sites, Services or this Agreement. If SocketLabs is required by law to pay taxes for providing the Sites or Services to you or for any of its other obligations to you in this Agreement, you must pay SocketLabs the amount of the tax that is due or provide SocketLabs with evidence of your exemption from the tax, which is satisfactory and acceptable to SocketLabs and the party(s) imposing the tax. You must provide SocketLabs with accurate information to help SocketLabs determine if any taxes are due with respect to this Agreement or your use of the Sites or Services. You are responsible for keeping your billing and other Account information up to date.
All fees must be paid in the currency of the United States of America. Unless otherwise specified herein, all fees paid to SocketLabs are COMPLETELY NON REFUNDABLE. Discounts may not be combined. Unused allowances are not transferrable from month to month. Downgrades and cancellations shall take place at the end of the applicable billing period. Prices include standard setup; complex configurations may require additional charges.
SocketLabs may suspend all Services (including Services provided pursuant to any related Account, Order or other agreement we may have with you), immediately and without liability or cure for breach, if payment of any fee is overdue, and you do not pay the overdue fee within four (4) days of SocketLabs written notice to you. You agree that if your Services are reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee. SocketLabs may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate, whichever is higher). If SocketLabs brings a legal action to collect an overdue fee, you must also pay SocketLabs’ reasonable costs of collection, including attorney fees and court costs. If your check is returned for insufficient funds, SocketLabs may charge you a fee up to the maximum amount permitted by law. If SocketLabs receives a chargeback notice from its credit card processor or merchant bank that disputes a charge, such charge will be deemed unpaid.
9. USE OF THE SITES AND SERVICES
You must take appropriate security precautions in your use of the Sites and Services. You must cooperate with our investigation of any disruption of the Sites or Services, network or security issues, and any suspected breach of this Agreement.
Your right to use the Sites and Services is private and specific to you and you agree not to resell the use of the Sites or Services unless otherwise agreed to in writing by an authorized representative of SocketLabs. At your discretion, you may allow your subsidiaries and affiliated companies to use the Sites or Services however you are responsible for use of the Sites and Services by any third party to the same degree as if you were using the Sites or Services yourself. SocketLabs will only provide support directly to you and not to any other party you allow to use the Sites or Services. There are no third party beneficiaries to this Agreement, meaning that this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than SocketLabs and you.
You will not use the Sites and Services for any purpose that is unlawful or prohibited by this Agreement, the Other Policies or any notices. You may not use the Sites or Services in any manner that could damage, disable, overburden, or impair any SocketLabs device or server, or the network(s) connected to any SocketLabs device or server, or interfere with any other party’s use and enjoyment of the Sites or Services. You may not obtain or attempt to obtain any control, materials or information through any means not intentionally made available to you or provided for your use through the Sites and Services. You may not attempt to gain unauthorized access to the Sites or Services, other Accounts, computer systems or networks connected to any SocketLabs device or server or to any of the Sites or Services, through hacking, password mining or any other means. You will not use or register the name SocketLabs or any other trade name or trademark of SocketLabs without express, prior permission.
You will not modify, publish, transmit, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, participate in the transfer or sale, or in any way exploit any of the content, in whole or in part, found on or in the Sites or Services. You will not make any modification, adaptation, improvement, enhancement, translation or derivative work from the Sites or Services and you will not use the Sites or Services to compete with SocketLabs.
This Agreement and your use of the Sites and Services does not entitle you to make any unauthorized use of any content found in or on the Sites and Services, and in particular you will not delete, obstruct or alter any branding, identification or notices in any content. You will use all content solely for your personal use, and will make no other use of the content without the express written permission of SocketLabs.
You represent and warrant that all User Data and your use of the Sites and Services is for lawful purposes only and that your distribution or transmission of messages, files or other data is not in violation of any federal, state, local or provincial laws including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, provincial, state, national or other law. You may not use the Sites or Services to upload, post, reproduce or distribute, in any way, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the express written permission of the copyright holder. You agree to comply with all applicable laws, regulations, or conventions including, but not limited to those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal information or data.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom SocketLabs is legally prohibited to provide access to or use of the Sites or Services. You may not use the Sites or Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, nor may you provide access to the Sites or Services to any person (including any natural person or government or private entity) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
You may not use the Sites or Services to send, receive, store or process Sensitive Data or any other type of information that imposes independent obligations upon SocketLabs.
You agree that when communicating with SocketLabs, you will not share Personal Data, except to the extent necessary and only within our support website at https://support.socketlabs.com.
In accordance with, or in addition to, the AUP, SocketLabs prohibits the use of the Services or Sites by any person or entity that, encourages, promotes, provides, sells or offers to sell products or content relating to illegal, fraudulent or otherwise prohibited activities (or services related to the same): including, but not limited to, illegal drugs; gambling; lead sales; pornography; obscenity; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; material that exploits children, encourages violence, spam, and similar activities. This is not an exhaustive list, and SocketLabs, in its sole discretion, may determine whether your use is prohibited and its determination shall be final, binding and conclusive for all purposes under this Agreement. SocketLabs will terminate your use of the Sites and Services if SocketLabs determines such prohibited content or use is in violation of this Agreement or the Other Policies. User Data, as well as other data, content or information that is deemed to be unlawful or in contravention of this Agreement, the Other Policies or legal and regulatory requirements may be deleted by SocketLabs at any time without notice.
10. NO MISSION CRITICAL OR HIGH RISK
THE SITES AND SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN ANY MISSION CRITICAL, EMERGENCY, MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SITES OR SERVICES COULD LEAD TO PERSONAL INJURY OR DEATH, OR TO PHYSICAL OR ENVIRONMENTAL DAMAGE. SHOULD YOU OR ANYONE USING YOUR ACCOUNT USE OR ATTEMPT TO USE THE SITES OR SERVICES FOR ANY SUCH UNINTENDED AND UNAUTHORIZED USE, YOU SHALL INDEMNIFY AND HOLD THE PROTECTED PARTIES HARMLESS AGAINST ALL CLAIMS, COSTS, DAMAGES AND EXPENSES, AND ATTORNEY FEES AND EXPENSES ARISING OUT OF, DIRECTLY OR INDIRECTLY, ANY CLAIM OF PRODUCT LIABILITY, DAMAGE, PERSONAL INJURY OR DEATH ASSOCIATED WITH SUCH UNINTENDED OR UNAUTHORIZED USE OR ATTEMPTED USE, EVEN IF SUCH CLAIM ALLEGES THAT A) SOCKETLABS OR ANY OF THE PROTECTED PARTIES WERE NEGLIGENT REGARDING THE DESIGN, OPERATION OR PROVISIONING OF THE SITES OR SERVICES, B) SOCKETLABS OR ANY OF THE PROTECTED PARTIES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY WERE FORESEEABLE OR C) SOCKETLABS OR ANY OF THE PROTECTED PARTIES WERE AWARE OF THE UNINTENDED AND UNAUTHORIZED USE.
11. ADDITIONAL DISCLAIMERS
SocketLabs does not:
a.) Represent or endorse the accuracy or reliability or any opinion, advice or statement made through the Sites or Services.
b.) Assume liability for any harassing, offensive, obscene or sexually explicit material distributed through the Sites or Services by you or others.
c.) Assume any liability for any material distributed through the Sites or Services by you or others, including but not limited to that which is distributed in violation of any third party’s copyright or other intellectual property right.
d.) Assume liability for claims, damages or otherwise, concerning unsolicited or unlawful email messages sent by you or others including but not limited to laws such as the CAN-SPAM Act or CASL.
Our employees are not lawyers and cannot provide legal advice. Although we go to great lengths to make sure our information is accurate and useful, any use of the information we may provide is at your own risk. We recommend that you consult a lawyer if you want legal advice.
SocketLabs is not responsible for unauthorized access to your data, your Account or the unauthorized use of the Sites and Services.
12. CHANGES TO THE SITES OR SERVICES, LIMITATIONS, QUOTAS
We may change, suspend or discontinue the Sites or Services (in whole or in part), including but not limited to the addition, removal or modification of features and functionality from time to time, as we deem necessary. Additionally, we may add, remove or change limitations or quotas on the Sites or Services at our discretion. We will use reasonable efforts to make changes as painless as possible for our customers. We may make these changes without notice however will attempt to notify you if we believe that a change is significant enough to warrant your attention.
13. SUPPRESSION OF EMAIL MESSAGE DELIVERY
The Site and Services make use of a suppression list system that keeps track of undeliverable email addresses, unsubscribed email addresses and email addresses for which a complaint is received. Future messages to these addresses are automatically blocked to increase email deliverability. It is possible for addresses to get on the suppression list in error. For example, SocketLabs may receive a misleading response from the recipient’s SMTP server, or we may misinterpret a response. If you send mail through the Sites or Services: a) it is your responsibility to use the Sites to monitor and maintain your suppression list and b) you agree that suppressed messages count against your message allowances, even though suppressed. You understand and agree that the suppression list system is not perfect and is not error free and release the Protected Parties from any liability for damages arising from a failures or errors of the suppression list system, even due to the negligence of SocketLabs or any of the Protected Parties.
14. AUTOMATED SCANNING SYSTEMS
SocketLabs may use automated systems to scan, analyze and monitor the use of our Sites and Services. These systems are designed to protect our network and our customers. Should these systems detect spam, prohibited content or other abuse of our Sites and Services, they may suspend your use of all or part of the Sites and Services immediately, and without liability to SocketLabs, upon notice to you. You understand and agree that these systems are not perfect and are not error free and release the Protected Parties from any liability for damages arising from the failure of these systems to block content, or from damages caused by the suspension of your use of the Sites or Services, even if the damage was caused by the negligence of SocketLabs or any of the Protected Parties. You also agree that SocketLabs is not required to perform any of these actions, but may do so as it deems necessary.
15. BETA AREAS
Areas of the Sites and Services bearing the word “beta” contain beta features. Beta features are tested internally but are still believed to contain defects. We allow you to access beta features to give you early access to new features in exchange for your feedback on usability, performance and the identification of defects. You should safeguard important data, use caution and not rely in any way on the proper functioning or performance of these beta features. Beta features may likely change over time, or be removed permanently without notice.
16. SOCKETLABS ON-DEMAND EMAIL SERVICE
This section outlines specific terms applicable only to the SocketLabs On-Demand email service.
Each Order includes a specified number of email messages allowed per month. Additional messages will be billed at the same per message rate as the messages included on your Order. The included bandwidth is based on 128 kilobytes per message included on your Order. If the total size of your messages for the month exceeds 128 kilobytes multiplied by the base number of messages included on your Order per month, you will be billed for the extra bandwidth overage at a rate of ten U.S. dollars ($10) per gigabyte. Allowances and overages are counted for every message submitted, handled or otherwise processed by the Service, regardless of whether or not the messages were successfully delivered, handled or processed. Messages with multiple recipients will count as multiple messages, one per recipient.
SocketLabs wants you to be 100% satisfied; therefore, SocketLabs offers a limited money back guarantee. To qualify for the money back guarantee, you must log into the Site and cancel your Services within the first 30 days, and before you have submitted or received 5,000 (five thousand) email messages, whichever occurs first. Beyond the first month of service or 5,000 (five thousand) messages if you cancel your Service, the cancellation will occur at the end of the current billing period and you will be responsible for whatever charges have been incurred or accrued until the end of the current billing period. For the purpose of this guarantee, messages with multiple recipients will count as multiple messages, one per recipient. If you violate any of our terms, including but not limited to the terms of this Agreement or the Other Policies, then this guarantee is void and all fees are non-refundable. This money back guarantee is limited to money you actually paid to SocketLabs for use of the Services.
As of May 25, 2018, you agree that at any time when you have not fully executed, agreed to, and are complying with the SocketLabs Data Processing Addendum (“DPA”), which is available at http://www.socketlabs.com/legal/dpa or other such area on the Sites as designated by SocketLabs from time to time, (or when the DPA is not in full force and effect for any other reason), you shall be prohibited from Processing Customer Personal Data (as defined in the DPA) regulated by EU Data Protection Laws (as defined in the DPA), and shall be obligated to immediately cease and desist from any such processing activities, for as long as the DPA is not in full force and effect. You agree to indemnify and hold harmless the Protected Parties against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind which the Protected Parties may sustain as a consequence of any breach by you of your obligations pursuant to this paragraph.
In the event of a security breach that affects Customer Data, we will notify you if and as we deem necessary based on the nature and extent of the breach, or to the extent required by applicable law. However, we will not notify other parties, including but not limited to the owners of email addresses included in your messages, unless required by applicable law. It will be your responsibility to notify any such other parties, and you agree to do so promptly if requested by SocketLabs.
Notwithstanding anything to the contrary in this Agreement, you agree that SocketLabs may publicly disclose that we are providing (or have previously provided) the Services to you as our customer and may include your company name, trademarks and logo in advertising and promotional materials including but not limited to press releases, case studies, and publication on the web. You grant us these rights perpetually, irrevocably, and free of charge.
18. OWNERSHIP OF INTELLECTUAL PROPERTY
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions, copyrights, trade secrets, materials, text, graphics, logos, content and other intellectual property comprising the Sites and Services are and shall remain wholly owned by SocketLabs or its licensors and service providers. You do not gain any rights, ownership, title or other interest in this property, the Sites, Services or SocketLabs. Any intellectual property developed by SocketLabs before, during or after the term of this Agreement, regardless of your input or involvement, shall belong exclusively to SocketLabs. We do not grant you any license, express or implied, to the intellectual property of SocketLabs or its licensors and service providers unless expressly authorized herein.
19. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE SITES AND SERVICES ARE PROVIDED STRICTLY “AS IS” AND “AS AVAILABLE” AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE WITH RESPECT TO THE SITES OR SERVICES OR ANY OTHER PRODUCT OR DOCUMENTATION PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. SOCKETLABS FURTHER EXPRESSLY DISCLAIMS GUARANTEE OF CONTINUED AVAILABILITY OF THE SITES AND SERVICES OR ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SECURITY OF DATA, ACCURACY, TITLE OR NON-INFRINGEMENT. ADDITIONALLY SOCKETLABS EXPRESSLY DISCLAIMS THAT THE SITES AND SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS, INCLUDING BUT NOT LIMITED TO INTERNET COMMUNICATIONS, COMPUTER/DATA/NETWORK SECURITY AND CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, DATA, USER DATA, CONFIDENTIAL INFORMATION AND PROPERTY.
SOCKETLABS DOES NOT GUARANTEE THAT IT WILL SUCCESSFULLY DELIVER YOUR EMAIL, GET YOUR EMAIL INTO THE INBOX OR IMPROVE THE DELIVERY OR DELIVERABILITY OF YOUR EMAIL.
NO REPRESENTATION OR OTHER AFFIRMATION OF FACT INCLUDING, BUT NOT LIMITED TO, MARKETING LITERATURE OR COLLATERAL OR STATEMENTS REGARDING PERFORMANCE OF THE SITES OR SERVICES BY SOCKETLABS (OR ANY OTHER PARTY) WHICH IS NOT CONTAINED IN THIS SECTION SHALL BE CONSIDERED TO BE A WARRANTY OR REPRESENTATION, AND SHOULD NOT BE RELIED UPON AND IS NOT BINDING UPON SOCKETLABS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SOCKETLABS, ITS EMPLOYEES, OR ANY OTHER PARTY, INCLUDING BUT NOT LIMITED TO DISTRIBUTORS, DEALERS, PARTNERS OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES, IF ANY, EXPRESSLY SET FORTH HEREIN.
YOU ASSUME FULL RESPONSIBILITY FOR ANY LOSS RESULTING FROM THIS AGREEMENT OR YOUR USE OF (OR INABILITY TO USE) THE SITES AND SERVICES. IN NO EVENT SHALL THE PROTECTED PARTIES BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF BUSINESS, LOSS OF REVENUES OR PROFITS, LOSS OF DATA OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (INCLUDING, BUT NOT LIMITED TO, LOSSES RESULTING FROM ERRORS, DELAYS, NON-DELIVERIES, WRONG DELIVERIES, MISDIRECTION OF DELIVERIES, SITE OR SERVICE INTERRUPTIONS, PERFORMANCE OR FAILURE OF THE INTERNET OR SOCKETLABS’ SERVICE PROVIDERS, DELETION, FAILURE TO SAVE, LOSS, COMPROMISE OR UNINTENDED DISCLOSURE OF USER DATA, LOSS OF GOODWILL, DAMAGE TO YOUR REPUTATION, LOSS OF USE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), 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 THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SITES OR SERVICES, EVEN IF SOCKETLABS OR ANY OF THE PROTECTED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF THE PROTECTED PARTIES, UNDER ANY THEORY OF LAW, WHETHER IN CONTRACT (INCLUDING WITHOUT LIMITATION FUNDAMENTAL BREACH OR FAILURE OF AN ESSENTIAL PURPOSE), TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), MISREPRESENTATION, INFRINGEMENT OR OTHERWISE IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURENCES SHALL IN NO CIRCUMSTANCES EXCEED THE FEES PAID BY YOU TO SOCKETLABS HEREUNDER IN THE ONE MONTH PERIOD PRECEDING ANY SUCH INITIAL OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM, OR IF NO SUCH FEES HAVE BEEN PAID, ONE ($1.00) UNITED STATES DOLLAR.
IN THE EVENT APPLICABLE LAW DOES NOT PERMIT SUCH EXCLUSIONS TO BE COMPLETELY DISCLAIMED, THESE EXCLUSIONS SHALL BE INTERPRETED AS NECESSARY TO GIVE THE PROTECTED PARTIES THE FULL MAXIMUM BENEFIT OF ANY DISCLAIMER OR LIMITATION AS PERMITTED BY APPLICABLE LAW.
IF SOCKETLABS IS NOTIFIED OF A CREDIBLE CLAIM THAT THE SITES OR SERVICES INFRINGE UPON THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY AND SOCKETLABS IS NOT REASONABLY ABLE TO OBTAIN THE RIGHT TO USE THE INFRINGING ELEMENT OR MODIFY THE SITES OR SERVICES SUCH THAT THEY DO NOT INFRINGE, THEN SOCKETLABS MAY TERMINATE THIS AGREEMENT AND YOUR SOLE REMEDY WILL BE THE LESSER OF A PRORATED REFUND OF FEES PAID BY YOU FOR ANY PORTION OF THE SITES OR SERVICES UNUSED IN THE CURRENT TERM OR FIVE HUNDRED ($500.00) DOLLARS, WHICHEVER IS LESS. IF SOCKETLABS MODIFIES THE SITES OR SERVICES SUCH THAT THEY DO NOT INFRINGE, SOCKETLABS WILL NOT BE IN BREACH, OR INCUR ANY LIABILITY EVEN IF THE FUNCTIONALITY, PERFORMANCE OR VALUE OF THE SITES OR SERVICES DIMINISHES OR CHANGES OTHERWISE AS A RESULT. THIS SECTION 19 STATES SOCKETLABS’ SOLE AND EXCLUSIVE OBLIGATIONS FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT.
You agree to indemnify and hold harmless the Protected Parties from any and all direct, indirect or consequential claims, losses, fines, damages, judgments, expenses and costs and any other amount that is imposed on SocketLabs or any of the Protected Parties as a result (including, but not limited to, any attorney’s fees and expenses), arising out of your use of or inability to use the Sites or Services, violation of this Agreement, violation of the Other Policies, violation of law or the infringement of any applicable patent, trademark or copyright by you, your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. SocketLabs reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with SocketLabs in asserting any available defenses. Amounts due under this Section must be paid as they are incurred by SocketLabs.
21. SUSPENSION & RESTRICTION
Without limiting other rights it may have, SocketLabs may suspend, block access to, or place restrictions on all or part of the Sites and Services (including Sites and Services provided pursuant to any other Account, Order or other agreement we may have with you), immediately and indefinitely and without liability or cure for breach, with or without notice, upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct regarded by SocketLabs in its sole discretion to be inappropriate or detrimental to the Site or Services, including but not limited to our determination that: (i) the Sites or Services are being used in violation of this Agreement or the Other Policies, (ii) you are not cooperating with our investigation of any suspected violation of this Agreement, (iii) your Account or systems may have been compromised or are being attacked, (iv) your email is generating an unreasonable amount of spam complaints or blacklistings, (v) your use of the Sites or Services may subject us, our affiliates, or any third party to liability, (vi) suspension is required by law, (vii) the suspension is necessary to protect the SocketLabs network, systems, our vendors, or customers, or (viii) suspension is warranted as otherwise provided for in this Agreement. SocketLabs shall have no responsibility to notify any third party of any suspension or restriction.
22. TERM AND TERMINATION
The term of this Agreement begins on the date of your first use of the Site or Services, and ends when your Accounts and Orders have been terminated and you are no longer using the Sites and Services or (b) SocketLabs terminates this Agreement as specified below.
Each Order specifies its initial term, or if not specified the initial term will be 1 month. Unless otherwise provided for herein, Orders will automatically renew for successive extended terms in equal length to the prior term unless we provide you with 30 days written notice of non-renewal. You may terminate your Accounts and Orders by logging into the Site and taking the appropriate actions. Orders will then terminate at the end of their term, and will not renew. Some termination options provided by the Site may require you to take additional steps, such as contacting SocketLabs by phone, email or as otherwise specified by the Site.
SocketLabs may terminate this Agreement for convenience by providing you with 30 days written notice. Upon termination of this Agreement, your Account, Orders and Services will be terminated.
SocketLabs may terminate this Agreement immediately for breach, upon notice to you, if SocketLabs, in its sole discretion, believes that a) the Site or Services are used for a purpose that is unlawful or prohibited by this Agreement or the Other Policies, b) the information you provided is inaccurate, incomplete or incorrect, or c) that you do not have authority to enter into this Agreement for the entity or organization you claim to represent. We may also terminate this Agreement for breach if you violate any other provision of this Agreement or the Other Policies and do not cure the violation to our satisfaction within 4 days of our notice to you or if you violate any other provision of this Agreement or the Other Policies more than once, even if you cure each violation.
Upon termination of an Account, Order or this Agreement, SocketLabs shall have no obligation to provide any Site or Service, or retain any data associated with the terminated Account, Order or this Agreement including but not limited to User Data and logs, nor shall SocketLabs have an obligation to forward any unread or unsent message, User Data or any other data to you or any third party. SocketLabs shall have no responsibility to notify any third party of any termination.
Any termination shall not relieve you from any amounts owing or any other liability accruing under this Agreement prior to the time that such termination becomes effective.
23. JURISDICTION AND GOVERNING LAW
This Agreement shall be governed and construed in all respects pursuant to the laws of the Commonwealth of Pennsylvania without regard to the law of conflicts of laws, and without regard to any rule of interpretation or construction as to which party drafted this Agreement. It is the express intention that the United Nations Convention on Contracts for the International Sale of Goods shall have no application whatsoever with respect to this Agreement. In the event that suit is required to be brought by either party to enforce any of the terms of this Agreement, the parties agree to the exclusive jurisdiction and venue of the state or federal courts of the Commonwealth of Pennsylvania, or of such other jurisdiction in which SocketLabs maintains its principal place of business. You expressly waive any right, and agree not to have any dispute under this Agreement tried or otherwise determined by a jury, except where required by law. You agree that you will not bring a claim related to this Agreement after 1 year of the date that the initial occurrence giving rise to the claim occurred. You agree that you will not bring, join or participate in any class action lawsuit against any of the Protected Parties in any way related to the Sites, Services or this Agreement.
The following provisions shall survive the expiration or termination of this Agreement for any reason: a) any exclusion or limitation of the liability of SocketLabs or the Protected Parties, b) any indemnification by you, c) payment of any fees, taxes or other amounts due or payable by you, d) any provisions designed to protect SocketLabs or the Protected Parties and e) the provisions of Sections 4. Privacy & Acceptable Use Policies, 5. User Data, 8. Fees, Payments & Taxes, 9. Use of the Sites and Services, 17. Publicity, 18. Ownership of Intellectual Property, 19 Disclaimers of Warranties and Limitation of Liability, 20. Indemnification, 23. Jurisdiction and Governing Law, and 32. Additional Terms.
Your routine communications regarding the Site and Services should be sent to SocketLabs via email to [email protected] Formal notices regarding this Agreement should send it by electronic mail and first class United States mail to:
SocketLabs Acquisition, LLC
Attn: Legal Affairs
700 Turner Industrial Way, Suite 100
Aston, PA 19014 USA
We may provide any notice to you under this Agreement by: posting a notice on a Site or sending a message to the email address then associated with your Account. Notices we provide by posting on a Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your Account when we send the email, whether or not you actually receive the email.
If a notice if provided in multiple formats (for example, by email and by posting on a Site) then the notice will be effective upon the earlier effective date.
Notices must be given in the English language.
26. REPORTING COPYRIGHT INFRINGEMENT
If you believe in good faith that your copyrighted work has been used on the Sites or Services without authorization, in a way that constitutes infringement, please contact our designated agent:
SocketLabs Acquisition, LLC
Attn: Copyright Agent
700 Turner Industrial Way, Suite 100
Aston, PA 19014
Please include all of the following information:
a. Your complete contact information (full name, mailing address, phone number and email address if available).
b. A description of the copyrighted work that you claim has been infringed.
c. Information reasonably sufficient to permit us to locate the material on our Sites or Services.
d. A declaration that you have a good faith belief that use of the copyrighted content described above, in the manner you have complained of, is not authorized by the copyright owner, its agent, or the law,
e. A declaration that the information in your notice is accurate, and you declare, under penalty of perjury, that you are the owner or authorized to act on behalf of the owner the copyright that is allegedly infringed.
f. Your electronic signature or physical signature.
27. LINKS TO THIRD PARTY SITES/THIRD PARTY SERVICES
The Sites and Services may contain links or references to other websites (“Linked Site” or “Linked Sites”). The Linked Sites are not under the control of SocketLabs and SocketLabs is not responsible for the contents of any Linked Site, including without limitation any products or services offered on a Linked Site, any link contained on a Linked Site, or any changes or updates to a Linked Site. SocketLabs is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by SocketLabs of the site or any association with its operators.
28. ELECTRONIC COMMUNICATIONS
Using our Sites or Services or sending emails to SocketLabs constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Sites and through the Services, satisfy any legal requirement that such communications be in writing.
29. FORCE MAJEURE
SocketLabs shall not be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, act of sabotage, riot, accident, attack, delay of carrier or supplier, internet outages, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond the reasonable control of SocketLabs.
You may not assign this Agreement without the prior written consent of SocketLabs. We may assign this Agreement in whole or in part to any party that assumes the obligations of SocketLabs hereunder. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
31. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties with respect to its subject matter, and supersedes and replaces all prior agreements, proposals, negotiations, representations, or communications relating to that subject matter whether written, oral or otherwise. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by the President or CEO of SocketLabs and which explicitly states that it will override or supersede the “SocketLabs Terms of Service” (identified specifically by that name).
32. ADDITIONAL TERMS
a. Either party may enforce its respective rights under this Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
b. This relationship is that of independent parties and not business partners. Neither party is the agent for the other, and neither party has the right or ability to bind or enter into any obligation on behalf of the other.
c. To the extent any portion of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such portion will be modified by the court solely to the extent necessary to cause such portion to be enforceable, and this Agreement, as so modified, shall remain in full force and effect.
d. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
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