Last Updated: March 14, 2024
This Master Subscription Agreement (the “Agreement”) entered into by and between You and Salesbricks, Inc. Salesbricks (referred to as "Us", "We", "Our") and govern Your right to access the use of and access to the Services by You, Your Affiliates, Users and End-Customers. By executing an order form that references this agreement, You agree to be bound by these Terms. If You have registered for a trial or beta test of the Services, the applicable provisions of this Agreement will also govern that trial or beta test of the Services. In the event of a conflict between these terms of service and Our Privacy Policy, these terms of service shall prevail. If You are using Our Services for an organization, You are agreeing to these Terms on behalf of that organization and in these Terms, "You" or "Your" refers to that organization. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and should not access or use the Services and/or Websites.
In these Terms, You and We are individually referred to as a "Party" and collectively as "Parties". You, as an individual, must be eighteen (18) years or older to access the Websites and register for and use the Services.
When used in these Terms with the initial letters capitalized, in addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of You for access and use of the Services.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby "control" (including, with correlative meaning, the terms "controlled by" and "under common control") means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Applicable Data Protection Law: means all laws and regulations, including laws and regulations of the United States, European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under these Terms.
Data Processing Addendum: means the data processing addendum available upon request as updated periodically and which is incorporated into these Terms by reference; or a separate addendum that the Parties have executed in this regard, as the case may be, pursuant to which We shall Process Personal Data forming part of Your Service Data.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Us to You or Users through the Services or otherwise.
End-Customer: means Your customers and/or any person or entity other than You or Users with whom You interact using the Services.
Order Form: means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us.
Personal Data: means data forming part of the Service Data and relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into the possession of the data controller or such other similar term as defined under Applicable Data Protection Law.
Privacy Policy: means Our privacy policy found here- https://www.salesbricks.com/privacy-policy as updated periodically and which is incorporated into these Terms by reference.
Process/Processing: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Plan: means the pricing plan found here- https://www.salesbricks.com/products/platform that You choose in connection with a Subscription for the associated functionality and services.
Services: means Our cloud-based commerce platform and related products and services that you utilize, and/or any new services or features that We may introduce as a Service to which You may use, and any Updates to the Services, including individually and collectively, any software, APIs and Documentation.
Service Data: means all electronic data, text, messages or other materials, including Registration Data and Personal Data of End-Customers and Users, submitted to the Services through an Account in connection with Your use of the Services.
Service Plan: means the plan set forth in the User Form, as distinguished from free services or those provided pursuant to a trial or beta test.
Third Party Services: means the third party Services offered for purchase via the salesbricks purchasing gateway. Third Party Services are not affiliated with salesbricks in any way.
User: means anyone who uses the Services to purchase items and/or services (“Buyers”) and users who sell items (“Sellers”), collectively referred to as “Users.”
Websites: means the websites that We operate.
Subject to the payment of all applicable Fees and Your (including Users' and End-Customers') compliance with these Terms and solely during the Term, We grant You a limited, non-exclusive, non-transferable, non-assignable (except to the extent expressly permitted by the Section titled Assignment), worldwide (subject to applicable law) and revocable right to access and use the Services that You have selected for Your own internal business purposes. You may use the Documentation solely in connection with Your use of the Services.
3.1 Registration Data. You agree to provide Us with current, complete and accurate registration information as prompted by the Services' registration process ("Registration Data"). You agree not to omit or misrepresent any Registration Data, and further agree to update the Registration Data periodically to ensure that it is current, complete and accurate. You further authorize Us to verify the Registration Data as required for Your use of the Services.
3.2 Account Activities. You are solely responsible for Your (including Users' and End-Customers') access and use of the Services in compliance with these Terms; without prejudice to Our obligations under the Section titled Confidentiality and the Section titled Data Security and Privacy, maintaining the confidentiality of unique login information, credentials and passwords associated with Your Account, and the privacy and security of Your Account; ensuring that Your use of the Services to store, process and transmit Service Data is compliant with applicable laws and regulations; any sum of amount that is due to or owed by You relating to transactions that are processed through any payment gateways, merchant account providers or payment processors that You utilize in connection with the Services; all activities that occur regarding Your Account regardless of whether the activities are undertaken by You, Users, End-Customers or a third party (including Your contractors or agents); immediately ceasing use of the Services for a prohibited activity or purpose if We inform You that a specified activity or purpose is prohibited with respect to the Services; and determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. In using the Service Buyers and Sellers enter into a contract for the sale and purchase of items and or third-party services directly between themselves, and We are not a party to such sale or purchase.
3.3 Your Use of the Services. You agree to use the Services in accordance with these Terms (including any addendum, schedules and exhibits), Documentation and any API policies We implement in this regard. Further, You agree, on behalf of Yourself and Users, not to (a) modify, adapt, or hack the Services or otherwise attempt to gain or gain unauthorized access to the Services or related systems or networks or tamper with or breach the security of the Services; (b) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (c) not use or permit the use of any software, hardware, application or process that interferes with the Services, interferes with or disrupts servers, systems or networks connected to the Services, or violates the regulations, policies or procedures of such servers, systems or networks, accesses or attempts to access Our other customers' accounts, servers, systems or networks without authorization, or harasses or interferes with Our other customers' use and enjoyment of the Services; (d) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover or attempt to derive the source code or underlying program of any software making up the Services; (e) falsely imply any sponsorship or association with Us; (f) use the Services in any unlawful manner, including but not limited to violation of any person's privacy rights; (g) use the Services to send unsolicited communications junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (h) use the Services to store or transmit any content that infringes upon any person's intellectual property rights; (i) remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Services or the Documentation, or add any other markings or notices to the Services or the Documentation; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory or promotes any financial exploitation or a criminal activity; (k) modify, port, adapt, translate or create any derivative work based upon the Services or the Documentation; (l) use the Services to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, worms or cancelbots or any other similar harmful software ("Malicious Software"); (m) establish a link to the Websites in such a way as to suggest any form of association, approval or endorsement on Our part where none exists; (n) use of the Services for any purpose prohibited by applicable export laws and regulations, including without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology or related to the sale of controlled substances such as illegal drugs, tobacco products, prescription drugs or medications, steroids such as human growth hormone; (o) use the Services in a manner that that is not in compliance with PCI DSS; or (p) try to use, or use the Services in violation of these Terms and/or applicable law. Neither You nor any of Your Affiliates shall access or use the Services or Websites if such individual or entity is a competitor of salesbricks. You and Your Affiliates shall not access or use the Services or Website to evaluate its functionality or performance for competitive purposes, including for developing any similar application, product or service. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.
3.5 Your Account Responsibility. Except to the extent caused by Our willful breach of these Terms, salesbricks will not be responsible for any alteration, compromise, corruption, damage or loss that may result from Your failure to protect Your login information, including any passwords. You agree to notify Us immediately of any unauthorized access or use of Your Account, log-in information, credentials or passwords, or any unauthorized activity in Your Account. We have the right to suspend or terminate the Services without notice to You, if We reasonably suspect any unauthorized activity and You agree to cooperate with Us in any investigation into suspected or actual unauthorized activity. Where Your Account is suspended You are unable to cure the breach, We reserve the right to terminate Your Account permanently.
4.1 Websites. We have the right but not the obligation to change content on Our Websites at any time. We may discontinue or change any part of Our Websites at any time, with or without notice.
4.2 Services. We may upgrade, update, or modify the provision of all or any part of the Services from time to time, however such updates or modifications will not materially degrade Your use of the Services.
5.1 Ownership. All right, title and interest in and to all of Our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and other intellectual property and/or proprietary rights in or related to the Services, including the Websites, and any part of it (collectively, the "salesbricks Intellectual Property Rights"), are owned or licensed by and shall remain exclusively with Us and/or the Sub-processors. We are the owner or the licensee of all salesbricks Intellectual Property Rights in the Websites, and the content or material published on it. You must not use any part of the content on the Websites for commercial purposes without obtaining appropriate licenses. Subject to the limited rights expressly granted by Us to You in Section 2 (Rights to use the Services) of these Terms, You do not have any right, title to or interest in the salesbricks Intellectual Property Rights. By using the Services, You grant Us a limited license to access, disclose, process, transmit and use Your Service Data for providing the Services to You and for complying with these Terms. We claim no intellectual property rights over the Service Data. All rights not expressly granted to You in these Terms are reserved by Us and/or the Sub-processors.
5.2 Grant of License to Us. You may choose or We may invite You to submit suggestions, recommendations, enhancement requests or other feedback about the Services ("Feedback"). By submitting any Feedback, You agree that such Feedback is gratuitous, unsolicited and without restriction, and You grant Us a fully paid up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate Feedback, in whole or in part, into the Services or Websites. Further, unless You notify Us otherwise via e-mail to legal@salesbricks.com, You grant Us a fully paid up, royalty-free, worldwide, transferable license to use Your name and logo to identify You as Our customer on the Websites or in other sales or marketing materials, provided however, We will not issue any press release without Your prior consent.5.3 Your Marks. We may include Your name and logo in a list of Our customers online and in print and electronic marketing materials. You acknowledge and agree to Our use of Your name and/or logo in disclosures to third parties, either in print or online, regarding Our current Customers.
6.1 Sub-processors. Certain third parties (each, a "Sub-processor") may assist Us in providing the Services by delivering their products and/or services as part of the Services. We contract directly with the Sub-processors for the provision of their products and/or services, which are integrated with or are an integral part of the Services. The products and services provided by the Sub-processors do not include any of the Other Services.
6.2 Other Services. Certain other services ("Other Services") such as integrations and apps may be made available to You for use with the Services. These Other Services are governed by their own terms and privacy policies and You agree that We are not responsible for Your use of these Other Services where You choose to enable these Other Services and integrate them into the Services. By enabling the Other Services, You understand and agree that We do not provide any warranties for Other Services and We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You understand that We are not responsible for providing technical support for Other Services or for the data hosting and data transfer practices followed by providers of such Other Services. To this extent, You agree to address any comments, queries, complaints or feedback about such Other Services with the respective developers or publishers as specified in those forums.
6.3 Third-Party Services. The Services and Websites may also contain links to websites, resources and/or other services provided by third parties (the "Third-Party Services"). We do not endorse any Third-Party Services. You agree that We are not responsible for the quality, performance, reliability or security of any Third-Party Services, and that We are not responsible for any damages in connection with Your and/or Users' and/or End-Customers' access or use of any Third-Party Content, or Your reliance on the privacy practices, data security measures or other policies of any Third-Party Services. You acknowledge and agree that Third-Party Services are governed by that third-party provider's terms and that We do not have any control over such Third-Party Services. To this extent, You agree to address any comments, queries, complaints or feedback regarding the Third-Party Services with the third party providing them.
7.1 Payment Processing. Payment processing services for Buyers and Sellers on salesbricks are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to use the Services, You agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Our enabling payment processing services through Stripe, You agree to provide Us with accurate and complete information about You and Your business, and you authorize Us to share it and transaction information related to Your use of the payment processing services provided by Stripe.
7.2 Payment. You agree to pay all fees specified in the Order Form. Except as otherwise specified herein or in an Order Form fees are based on the Service Plan purchased and not actual usage. All fees are payable in full and in advance until this agreement is terminated.
7.4 Refunds. Unless otherwise specified in these Terms, all Fees are non-refundable. All purchases made using the Services are final, with no returns, refunds or cancellations, unless the purchase is explicitly permitted by Us under this Agreement or in explicitly permitted in writing to You from Us. We do not provide refunds or credits on behalf of third parties. Any modifications to purchases made via the Services must be handled between the Buyer and Seller directly.
7.5 Taxes. Unless otherwise specified, the Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority, for which You are responsible except for taxes imposed on Our income.
8.1 Term. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term.
8.2 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
8.3 Refund or Payment Upon Termination. If You terminate this agreement in accordance with the Termination section above, we will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with the “Termination” section above, You will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
8.4 Consequences of Termination
8.4.1 Consequences. We shall not be liable to You or any other third party for suspension or termination of Your Account or Your access to and use of the Services, including any destruction of Service Data, if such suspension or termination is in accordance with these Terms. Upon any termination of your Account, all rights, including the right to access and use the Services granted to You. You shall immediately destroy (or, at Our request, return) Our Confidential Information in Your possession or control.
8.4.2 Data Export. Following deactivation or termination of your Account, We will retain that Account's Service Data for thirty (30) days from such date of termination ("Data Retention Period") beyond which, We will have no obligation to maintain or provide You, Users and End-Customers access to Service Data. Thereafter, unless legally prohibited, We reserve the right to destroy all Service Data in Our possession in the normal course of Our operations in accordance with the Privacy Policy. You agree that You are solely responsible for exporting Service Data prior to termination of an Account, and if You require assistance for exporting Service Data during the Data Retention Period, You may be required to pay a separate fee to Us.
9.1 How Confidentiality Applies to This Agreement. The access, disclosure and use of Confidential Information and any other rights and obligations regarding such information shall be solely and exclusively governed by these Terms. The provisions of this Section shall supersede any non-disclosure agreement between the Parties entered prior to these Terms that would purport to address the confidentiality of Confidential Information and such agreement shall have no further force or effect with respect to Confidential Information. All confidentiality obligations shall remain in force and effect for the Term set forth on the Order Form plus one (1) year following Account termination or deactivation.
9.2.2 Nature of Confidential Information. Either Party (the "Disclosing Party") may from time to time, disclose to the other (the "Receiving Party") the Disclosing Party's confidential, proprietary and/or non-public information, materials or knowledge that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information, materials or knowledge and/or the circumstances of disclosure (the "Confidential Information"). For purposes of these Terms, Your Confidential Information includes Service Data, and Our Confidential Information includes the Services and Documentation. The Receiving Party agrees to protect the Disclosing Party's Confidential Information from unauthorized access, disclosure or use in the same manner that the Receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The Receiving Party will only access and use the Disclosing Party's Confidential Information in connection with performing these Terms (or as expressly authorized by the Disclosing Party in writing), and will disclose the Disclosing Party's Confidential Information only to the employees and contractors of the Receiving Party who have a need to know the Confidential Information for purposes of performing these Terms (or for other purposes as expressly authorized by the Disclosing Party in writing) and who are under a duty of confidentiality no less restrictive than the Receiving Party's duty hereunder.
9.3 Obligations. The Receiving Party's obligations with respect to Confidential Information of the Disclosing Party will terminate if the Receiving Party can document that such information (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party free from any obligation of confidence, (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions, (iii) is, or through no fault of the Receiving Party has become, generally available to the public or (iv) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party's Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or a court or other judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such compelled disclosure promptly and in writing (to the extent legally permitted) and cooperates with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
9.4 Return of Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party's possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party. At the Disclosing Party's request, the Receiving Party will certify in writing that it has fully complied with its obligations.
10.1 Security of Service Data. We use appropriate technical and organizational measures to protect the Service Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the Service Data.
10.2.1 Use of Sub-processors. You understand that We and any applicable Sub-processors shall Process Service Data in accordance with Applicable Data Protection Laws, the Privacy Policy and to the extent applicable, the Data Processing Addendum. You acknowledge and agree that We and any applicable Sub-processors may also access or disclose information about You, Your Account, Users and End-Customers, including Service Data, to (a) provide the Services and perform obligations under these Terms, including, without limitation, to respond to Your support requests; (b) comply with the law or respond to lawful requests or legal process; (c) professionals and advisors in order to protect the rights or property of Us, You, and other users of the Services; (d) act on a good faith belief that such disclosure is necessary to protect the personal safety or avoid violation of applicable law or regulation.
10.2.2 Processor Classification. We Process Service Data only as per Your instructions to the extent they are consistent with the functionality of the Services. For purposes of the GDPR, We are the processor and not the controller of the Service Data. Between the Parties, You are the "controller" of that data and are responsible for compliance with the Applicable Data Protection Laws.To exercise your rights under compliance regulations such as CCPA and GDPR, please send an email with your request to privacy@salesbricks.com.
10.2.3 Your Responsibilities as Controller. In Your role as a controller of Personal Data, (i) You hereby authorize, on behalf of Yourself, Users and End-Customers, and represent that You have the authority to provide such authorization to the Processing and transfer of Personal Data in and to the United States and other countries which may have different privacy laws from Your country of establishment/residence; (ii) You understand that it shall be Your responsibility to inform the Users and End-Customers about the Processing, and, where required, obtain necessary consent or authorization for any Personal Data that is collected as part of the Service Data through Your use of the Services. We do not own, control or direct the use of Service Data and only access such information as reasonably necessary to provide the Services (including to respond to support requests), as otherwise authorized by You or as required by law. Unless We explicitly agree otherwise in writing, You shall not provide Sensitive Data at any time to the Services and We will have no liability whatsoever for and in connection with the Sensitive Data. For purposes of these Terms, "Sensitive Data" means (i) social security number, passport number, driver's license number, or similar identifier (or any portion thereof), (ii) employment, financial, genetic, biometric or health information, (iii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (iv) account passwords, (v) date of birth, (vi) criminal history, (vii) mother's maiden name or (viii) any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction.
11.1 Aggregated Analytical Data. The Group Companies and the service providers they use may use (but not disclose) data collected regarding Your use of the Services for Our internal business purposes, including for creating anonymized, aggregated and otherwise non-personal data. We may freely use and make available such anonymized, aggregated and otherwise non-personal data regarding the use of the Services for Our business purposes. We will ensure that this anonymized, aggregated and otherwise non-personal data cannot identify You or End-Customers and can in no way be specifically associated to You or End-Customers.
OUR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT OUR SERVICES OR ANY PART THEREOF, OR USE THEREOF WILL BE ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS FREE, WILL MEET YOUR QUALITY AND PERFORMANCE REQUIREMENTS, OR WILL BE CORRECTED FOR ANY DEFECTS WITHIN A STIPULATED PERIOD PURSUANT TO ANY SERVICE LEVEL AGREEMENT. YOU UNDERSTAND THAT IN USING OUR SERVICES, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES THAT ARE NOT UNDER OUR CONTROL. WE MAKE NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES. YOU ASSUME THE ENTIRE RISK OF AND SHALL NOT HOLD US RESPONSIBLE FOR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF SERVICE DATA NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY US.
EXCEPT FOR YOUR MISAPPROPRIATION OR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS AND BREACH OF YOUR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF BUSINESS, GOODWILL, USE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, OR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF CUSTOMER DATA) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OUR SERVICES, THE DOCUMENTATION OR USE THEREOF OR THESE TERMS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE SOLEY RESPONSIBLE FOR YOUR INTERACTIONS WITH END-CUSTOMERS (IF YOU ARE A SELLER) AND WITH SELLERS (IF YOU ARE AN END-CUSTOMER) AND YOU AGREE THAT WE WILL HAVE NO LIABILITY OR RESPONSIBILITY WITH RESPECT TO SUCH INTERACTIONS, PURCHASES OR SALES. IF, NOTWITHSTANDING THIS LIABILITY LIMITATION, SHOULD WE HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE, AND EXCEPT FOR YOUR MISAPPROPRIATION OF INTELLECTUAL PROPERTY AND BREACH OF YOUR CONFIDENTIALITY OBLIGATIONS, EACH PARTY'S AGGREGATE LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY YOU FOR OUR SERVICES FOR THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR SUCH DAMAGE. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS TO US FOR THE SERVICES. NO CLAIM MAY BE PURSUED BY YOU MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN. THIS LIABILITY LIMITATION FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
14.1 Indemnification by Us. If We reasonably believe that Your use of the Services is likely to be enjoined, or if the Services are held to infringe a valid United States patent, copyright or trademark and all use of such Services by You is thereby enjoined, We shall, at Our expense and sole option, (i) procure for You the right to continue using the Services as set forth hereunder, (ii) replace the Services with other non-infringing services or software of substantially equivalent functionality or (iii) modify the Services so that there is no infringement, provided that such modified services or software provides substantially equivalent functionality. If, in Our reasonable opinion, the remedies above are infeasible or commercially impracticable, We may, at Our sole discretion, terminate Your Account(s).
14.2 Our Indemnification Process and Limits. Subject to Your compliance with these Terms, We, if notified promptly in writing and given authority, control, information and assistance at Our expense for defense and settlement of same, shall defend You against any third party action, suit or proceeding brought against You so far as it is based on a claim that the use of the Services infringes a United States patent, copyright or trademark, and shall indemnify You and hold You harmless for (i) all attorneys' fees, and court or tribunal costs incurred by Us with respect to defense and settlement of such third party claim, (ii) any judgments, fines, costs and penalties awarded by any court or tribunal against Us and/or Our customers, including You, for such third party claim and (iii) any amounts paid in settlement of such third party claim as mutually agreed by Us and the third party in such claim. We will have no liability or obligation with respect to any third party claim if such claim is caused in whole or in part by (i) modification of the Services by anyone other than Us; (ii) the combination, operation or use of the Services with any other software, hardware, application or process where the Services would not by themselves be infringing; (iii) compliance with designs, data, materials, instructions or specifications provided by You; (iv) use of the Services by You and/or Users in violation of these Terms; or (v) any ‘Other Services' and/or ‘Third-Party Content'.
14.3 Exclusive Remedy. THIS INDEMNIFICATION SECTION SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY AND OUR SOLE, EXCLUSIVE AND ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS. You agree that You shall, in no event, settle any matter without Our prior written approval.
15.1 The Sections with the following titles are intended to survive termination, shall survive any expiration or termination of these Terms. Termination of these Terms shall not limit either Party's liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
• Your Responsibilities
• Intellectual Property Rights
• Billing and Payments
• Term, Termination and Suspension
• Confidentiality
• Data Security and Privacy
• Disclaimer of Warranties
• Limitation of Liability
• Indemnification
• Survival
• General
We may communicate with You directly via e-mail at the e-mail address associated with Your Account, or through the Services (such as, through pop-ups), or Our blog or Our Website or over phone, including, regarding Your Subscription, system updates or other matters related to Your Account; as contained in the Privacy Policy; if You and/or Users are in violation of these Terms; if a specific activity or purpose is prohibited with respect to the Services, so that You immediately cease use of the Services for such prohibited activity or purpose; or if Your or Users' and/or End-Customers' activities on the Service causes excessive stress on the Services and associated infrastructure.
17.1 Parties. The Parties are independent contractors. Nothing in these Terms shall be deemed to constitute a partnership, joint venture, employment or franchise between the Parties, nor constitute any Party as the agent of the other Party for any purpose or entitle any Party to commit or bind the other Party in any manner.
17.2 Entire Agreement and Revisions. These Terms including any exhibits constitute the entire agreement, and supersede all prior or contemporaneous, written or oral understandings, communications or agreements between the Parties regarding such subject matter, including any click-wrap terms. We may amend these Terms from time to time by posting the most current version on Our Website, in which case the new Terms will supersede prior versions. Please check these Terms periodically to take notice of changes as they will be binding on You. If an amendment materially affects Your rights, We will notify You (by, for example, sending a message to the e-mail address associated with Your Account, or posting on Our blog or on the Website or as a notification inside the Services). Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. If You do not agree to an amendment, You may terminate Your use of the Services or deactivate your Account.
17.3 Severability and Waiver. If any provision of these Terms is held to be unenforceable by a court of competent jurisdiction, the unenforceable provision shall be replaced by the court with an enforceable provision that comes closest to the Parties' intent underlying the unenforceable provision, and the remaining provisions of these Terms shall remain in full force and effect. The unenforceability of any provision in any jurisdiction shall not affect the enforceability of such provision in any other jurisdiction. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.
17.4 Assignment. Neither this Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent (which shall not be unreasonably withheld, delayed or conditioned), provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assigning party under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party's assets. In the event of such assignment by You under (i) or (ii) above, You must notify Us as soon as reasonably possible after the completion of any such change in control. In the event of an assignment under (ii) above by You, following such notice We shall have the ability to terminate the agreement with immediate effect We determine (acting reasonably) that the change in control was to: (i) a direct competitor or (ii) an affiliate of a direct competitor of Us. Any assignment in violation of this Section 15.3 shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.
17.5 Third Party Beneficiaries. Except as expressly provided in these Terms, nothing in these Terms, express or implied, is intended to confer upon any party (other than the Parties hereto, their respective successors and permitted assigns and the Sub-processors) any rights or obligations, to enforce these Terms.
17.6 Governing Law. These Terms shall be governed by the laws of the State of Delaware, United States. These Terms shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The respective courts of Delaware, United States shall have exclusive jurisdiction for any dispute between the Parties, and the Parties consent to venue and personal jurisdiction there. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY. YOU AGREE THAT ANY PROCEEDINGS, INCLUDING ANY ARBITRATION, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Each Party shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce these Terms, which remedy will be cumulative and not exclusive. If any action is pursued to enforce or obtain compliance with these Terms, the prevailing Party shall be entitled to reasonable attorneys' fees and costs, in addition to any other relief to which such Party may be entitled.
17.7 Export Controls and Sanctions Compliance. You acknowledge that the Services (including the software and other components of the Services) may be controlled by the laws of one or more countries governing technology use and transfer, including U.S. Export Administration Regulations, and/or may be subject to the sanctions programs of one or more countries. You shall not access, use or transfer the Services or any part of the Services in violation of such laws and sanctions programs. You represent and warrant that You are not, and You are not acting on behalf of, (i) any person who is a citizen, national, or resident of, or any entity registered in, or any person or entity who is controlled by the government of, any country to which the United States or any other government has prohibited export or other transactions, or (ii) any person or entity listed on any denied persons or entities list maintained by the United States or any other government, including lists maintained by the U.S. Office of Foreign Assets Control regarding sanctions programs that it administers, the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, and the U.S. Commerce Department Denied Persons List or Entity List. You also represent, warrant and covenant that You shall not permit any person or entity described in the preceding sentence to access or use the Services or any part of the Services, whether in any U.S. embargoed or sanctioned country or otherwise, or any person or entity to access or use the Services or any part of the Services in violation of any U.S. or other export embargoes, sanctions or laws. You agree to comply with all applicable laws regarding the access and use of the Services or any part of the Services by You and Users. Notwithstanding anything contained in these Terms to the contrary, We may, at Our sole discretion, immediately terminate Your access and use of the Services without prior written notice or an opportunity to cure in the event of an actual or threatened breach of this Section.
17.8 Force Majeure and Other Events. We shall not be liable for inadequacy of or irregularity in the Services caused by (i) any circumstance beyond Our reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, technical failures (including failures in telecommunications, internet, internet service provider or hosting facilities, power shortages) or acts undertaken by third parties, including without limitation, denial of service attacks; (ii) sub optimal functionality, availability or downtime of Other Services; (iii) Your, Users' or End-Customers' use of the Services in an unauthorized, improper or unlawful manner; or for any misuse or modification or damage of the Services caused by You, Users or End-Customers; or any breach of these Terms by You or Users; or (iv) planned downtime for maintenance, upgrades and updates for which We will use commercially reasonable efforts to provide at least forty-eight (48) hours prior notice (collectively, the "Force Majeure and Other Events"). Despite Our efforts, the Services or any functionality may from time to time encounter technical or other problems and may not continue to be uninterrupted. We are not responsible for any such problems, interruption, any ongoing obligation to offer Our Services or any functionality, or any damages resulting therefrom.
17.9 Notices. All notices to be provided by Us to You under these Terms may be delivered in writing by an internationally recognized overnight courier or U.S. mail to the mailing address provided by You while subscribing to the Services, or by electronic mail to the e-mail address provided by You in connection with Your Subscription. You may opt out of receiving e-mails from Us by clicking on the "unsubscribe" or "opt-out" link in the e-mails, and in the absence of such links, by reaching out to Us at contact@salesbricks.com or by deactivating Your Account. The contact information for a notice to Us by is by email to legal@salesbricks.com. All notices shall be deemed delivered upon receipt.
