Welcome to CannaBuild and thank you for choosing Us!
CannaBuild is a cloud-based software platform that can assist with workflow related to business formation, land use, licensing and operations in the legal cannabis arena. Interested users can preview a limited version of the platform for a 30-day trial period after setting up a customer account. More substantial access is available for a fee once the trial period has expired. Please read this document, as well as any referenced documents, because they govern your relationship with us regardless of the level of access you request. We look forward to working with you to help your business succeed.
Terms, Conditions and Limitations of Access (Terms)
Original Post: May 9, 2018, 11:00 a.m. (Pacific Standard Time)
PLEASE READ THESE TERMS CAREFULLY. INCLUDED ARE IMPORTANT PROVISIONS REQUIRING ARBITRATION AND DETAILING HOW YOUR PERSONAL INFORMATION WILL BE HANDLED, AMONG OTHERS. BY CLICKING “LET’S GO” BELOW, CUSTOMER CONFIRMS THAT IT/HE/SHE HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS.
These Terms constitute a legally binding agreement (hereafter, Agreement) by and between Covered360, Inc., a Delaware corporation with its principal place of business at 320 NW Bond St. Suite 208, Bend, Oregon 97702 (hereafter, Covered360, Inc., We, Our(s), and/or Us), and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (hereafter, Customer, You, and/or Your(s)). This Agreement is effective as of the date and time that Customer clicks “LET’S GO” below (hereafter, Effective Date). This Agreement governs both Customer’s access to, and use of, Covered360, Inc.’s System (defined below), as well as the obligations of Covered360, Inc.
Customer hereby acknowledges that neither Covered360, Inc., its Associates (defined below), nor any of the providers of information that appear on the System, are engaged in rendering any legal, accounting, management, business or other professional services or advice to Customer or its Associates (hereafter, Professional Advice). If Customer requires Professional Advice of any type or nature, Customer hereby agrees that it will obtain the services of a competent, professional person or company and will not rely on information provided on the System, or by Covered360, Inc., as a substitute for such Professional Advice. Neither the presentation of this Agreement to Customer, nor Customer’s: (A) use of the System, (B) payment to Covered360, Inc., or (C) acceptance of the Terms of this Agreement creates an attorney-client relationship, or Professional Advice relationship, between Customer and Covered360, Inc. in any way.
- THE SYSTEM
1.1 System Definition. As a stand-alone term, the System shall collectively mean any and all terrestrial or cloud-based hardware, software, processors, platforms, programs, applications, functions, inputs, algorithms, programs, storage systems and/or code utilized by Covered360, Inc. to create, develop, maintain, provide and implement the Website and System Content (defined below), including, without limitation, any and all programs, platforms, offerings, products, services, Orders, demos, or trial programs, in any way or to any extent. Website shall mean the maintenance and provision of www.covered360.com and/or www.cannabuild.covered360.com via the System.
1.2 Ownership. The System is owned and operated by Covered360, Inc. All right, title and interest in and to the System Content are owned either by the Covered360, Inc. or its third-party authors, developers or vendors (Third Party Providers). System Content shall include, but shall not limited to any and all: information, content, documents, logos, graphics, recommendations, directions, formulas, workflow, data, logos, marks, designs, layouts, graphics, pictures, Forms (defined below), sound files, other files, including their selection and arrangement, located on, in or expressed through the System in any way, shape or form. Except as otherwise expressly provided by the Terms, or an Order, none of the System Content may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted or distributed in any way without the express permission of Covered360, Inc.
1.3 Use of the System. During the Agreement Period, Customer may access and use the System and System Content pursuant to the Terms, as well as the scope of work established in any Order(s), to facilitate, impellent and fulfill the tasks associated with the Customer’s Account, 30-day Trial Period, and/or Order(s) (the Purpose). Customer shall mean the primary person or entity who/that establishes, and is responsible for, the Account, and who/that enters into the Agreement with Us by accepting the Terms. The Customer’s Account may or may not have Users separate from the Customer attached to it, but only to the extent permitted by Covered360, Inc. User shall mean the Customer, any individual who accesses or uses the System on Customer’s behalf, or though Customer’s Account or passwords, whether authorized or not. Order shall mean an order by a Customer for access to additional capabilities of the System, beyond the initial 30-day Trial Period, to be implemented in accordance with the requirements, fees and scope of work set forth in the Order. Customer may have 1 or more Orders associated with its account. Any fees required for the Order shall be paid at the time the Order is made.
1.4 Limited License to Use System Content and Forms. Covered360, Inc. hereby grants Customer a limited, personal, non-exclusive, non-transferable license to use, download, upload, view, fill in requested information, copy and print the forms made available to Customer via its Account on the System (hereafter, the Forms), as well as the System Content in general. This license is contingent upon the following: (A) the System Content is only used and accessed to the extent necessary to facilitate the Purpose; (B) where provided, the copyright and trademark notices appearing on any System Content shall not be altered or removed; (C) the System Content shall not used on any other website or in a networked computer or cloud environment; and (D) You hereby acknowledge and agree that You have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Forms or the System Content in any manner, except for modifications in filling out the Forms for Your authorized use consistent with the scope of the Purpose.
1.5 License Termination. This license terminates automatically and without notice: (A) upon termination of the Agreement; (B) upon expiration of the Agreement; (C) upon fulfillment of the Purpose; or (D) if Customer breaches any of the Terms of the Agreement or the Purpose. On any such termination for breach, Customer agrees to immediately destroy any downloaded, printed or electronically saved System Content. Any unauthorized use of any System Content may violate the Agreement in addition to copyright laws, trademark laws, laws of privacy and publicity, and communications regulations and statutes.
1.6 System Forms. The System may offer generic self-help “fill in the blank” Forms corresponding to the scope of work required by the Purpose. You understand that Your purchase, download, upload, and/or use of a Form document does not constitute Professional Advice, legal advice or the practice of law, and that each form and any applicable instructions or guidance is not customized to Your particular needs.
1.7 Resale Prohibited. You further agree that the Forms You purchase or download, and the System Content that You access and use, may only be used by You for Your personal or business use and may not be sold or redistributed without the express written consent of Covered360, Inc.
1.8 System Revisions. Covered360, Inc. may revise System features and functions at any time, including, without limitation, by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality necessary for the implementation of the Purpose or management of an Account, Customer may, within 15 calendar days of Notice of the revision, terminate such affected Order, or terminate this Agreement.
1.9 Performance Levels. Covered360, Inc. shall provide the remedies set forth in the Terms for any failure of the System that interrupts the ability to fulfill the Purpose in a timely manner. Such remedies are Customer’s sole remedy for any such failure of the System and Customer recognizes and agrees that if the Terms do not list a remedy for a given failure, it has no remedy. Credits issued, if any, apply to outstanding or future invoices or Orders only, and are forfeited upon termination of this Agreement. Covered360, Inc. is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
1.10 Usage or Access Means Acceptance of Terms. Accessing or using the System, in any way, constitutes an automatic representation that Customer:
(A) has read, understands and agrees to be bound by the Terms. If You do not understand the Terms in their entirety, or do not accept any part of them, You may not use the System in any way, and must immediately stop accessing or using the System;
(B) agrees to be responsible for any and all conduct of Users of the Account, whether authorized or not;
(C) has authority to legally bind the business or organization on behalf of which the Account and/or Order is made; and
(D) is over 21 years old. If Covered360, Inc. determines that a Customer is under the age of 21, all Accounts associated with that Customer will be terminated.
- ACCOUNT INFORMATION AND SECURITY
2.1 Account Creation and Maintenance. Customer shall establish an Account to enroll in the initial 30-day Trial Period, and to further access the System after the expiration of the trial period. The Account will be password protected and unique to each Customer. Customer hereby agrees to safeguard the Account information in a manner that ensures it is secure and confidential. Customer further agrees to provide accurate, complete and current information, and to promptly update any Account information to ensure that it is accurate, complete and current.
2.2 Unauthorized Access. Covered360, Inc. shall have no responsibility for any intentional or accidental disclosure of Account and/or security information by Customer. Customer shall take all reasonable steps to prevent unauthorized access to, or use of, the Account including, without limitation, by protecting passwords and other log-in credentials. Customer shall notify Us immediately of any known or suspected unauthorized access to its Account, or breach of its security, and shall use best efforts to stop said unauthorized access or use.
2.3 Revocation upon Compromise. The access credentials associated with Customer’s Account are the property of Covered360, Inc. and may be revoked at any time and without notice if We determine, in Our sole discretion, that You have shared them with a third party in violation of the Terms, have violated the Terms in another manner, or if Your Account access credentials have been compromised in any way.
2.4 System Access. You are responsible and liable for the access, use, activity and charges that occur on or through Your Account, whether authorized or unauthorized.
2.5 Account Users. Additional Users for each Account (beyond the Customer), and the extent of their access to the Account, shall only be permitted where allowed within the Account functionality, or with the express agreement of Covered360, Inc.
- USER CONTENT
3.1 Use of User Content. Portions of the System allow Users to upload, submit, store, send or receive content and information to the System (User Content). User Content is the User’s property. Users retain ownership of any existing intellectual property, or other rights, in User Content. These Terms do not give Us any rights to User Content, except for the limited rights that allow Us to offer and implement the System, Account and/or Order(s), or as set forth in these Terms. User Content shall also include any Forms generated in connection with a paid Order.
3.2 User Content Filed with Public Entities. Some programs offered through the System may require interaction with public entities, including the filing of documentation, requests, fees, permits, forms, reports, etc. (Public Filing, herein). Generally, documents filed with a public entity, or that are a matter of public business, are required to be made available to the public at large by the public entity. Where required by the public entity, the Public Filing(s) may contain personally identifiable information including, but not limited to name, address, phone number, email, birth date, social security number, etc. as a condition of approval by the public entity. Once the Public Filing is made, Customer hereby acknowledges that: (A) the public entity has its own requirements regarding the protection of personally identifiable information in conjunction with making documents available to the public at large; (B) the Public Filing may become part of the publicly available record accessible to the public at large, either in part or in whole; (C) some or all Customer’s personally identifiable information required by the public entity may be made available to the public at large by the public entity; (D) Covered360, Inc. has no further responsibility for the security of the Public Filing, or the information contained therein, once it has been filed with a public entity, (other than what We maintain within the System), and (E) Customer shall direct any complaints or issues with the handling of a Public Filing with the public entity requiring the filing.
3.3 Disclosure Required by Law. Notwithstanding the foregoing, We may disclose User Content as required by applicable law or by proper legal or governmental authority. We shall give You notice of any such legal or governmental demand, and reasonably cooperate with You in any effort by You to seek a protective order or otherwise to contest or limit such required disclosure, at Your expense. Any required disclosure shall be as limited as legally possible.
3.4 Your License to Us. An Account, Order or product available through the System may include review, revision, compilation, filing, distribution, analysis of, and consultation regarding, Your User Content. For any of Your User Content that is uploaded, downloaded, stored, submitted, sent or received to or through the System, You hereby grant Us and Our Associates, a worldwide, irrevocable, perpetual, royalty-free license to access, use, copy, delete in its entirety from the System, adapt, publish, translate, process, host, compile, modify, submit, file, reproduce and/or store Your User Content. The rights You grant in this license are for the limited purpose of providing, operating, developing and improving the Account, Order or product available through the System. This license continues even if You stop using Our System or terminate Your Order or Account.
3.5 User Content is User Responsibility. We have no responsibility or liability for User Content, or for any loss or damage User Content may cause to You, or other entities or individuals. Although We have no obligation to do so, We have the sole discretion to remove, screen or edit without notice any User Content posted or stored on the System, and We may do this at any time and for any reason. You are solely responsible for maintaining copies of and replacing any User Content You post, upload or store on the System.
3.6 User Content and Data Accuracy. We have no responsibility or liability for the accuracy or completeness of data, or User Content, uploaded to the Application by You or any other User.
3.7 Risk of Exposure. You hereby recognize and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, You assume such risks. We offer no representation, warranty, or guarantee that User Content will not be exposed or disclosed through errors, or the actions of third parties.
3.8 User Content and Account Deletion. We may permanently erase User Content and/or Account information if an Account is delinquent, suspended, or terminated for 30 days or more.
- USER DATA
4.1 Usage Data. The System may contain technologies that monitor, record and report to Us regarding Your usage of the System including, but not limited to the devices used to access the System, the frequency of access of the System, the type and manner of use of the System (collectively Usage Data herein). You hereby agree that We may, in Our sole discretion, use and collect the Usage Data to support, maintain and improve the System, Your Account, Your Orders, and to enforce Our rights under the Terms.
4.2 Aggregated Data. In addition, the System may contain technologies that aggregate Usage Data and information regarding individual Users, or a group of Users (Aggregated Data herein). For example, We may aggregate data regarding how many Customers have filed for, or have been granted, licenses in a particular jurisdiction. Any Aggregated Data will be anonymized and will not include personally identifiable information, identifiable User Content, contact information or Customer information. You hereby agree that We may use, reproduce, sell, publicize, or otherwise exploit Aggregated Data in any way, in Our sole discretion.
- FEES & SCOPE(S) OF WORK
5.1 Trial Period. Free access is provided to limited areas of the Website and System for a 30-day trial period (Trial Period) upon the establishment of an Account. Customer will be able to access the System and interact with the platform, including uploading User Content, but shall not be able to generate, export or print any completed Forms. Access to the System beyond the Trial Period, including the generation of completed Forms, requires the placement of a paid Order.
5.2 Fee-Based Orders. Upon expiration of the Trial Period, Customer will be prompted to select a fee-based package to further utilize the System. You will be automatically charged for Your fee-based package selection before additional access, and license to use, the System will be granted. The cost of the fee-based package selection, any additional fees, renewal period and scope of the requested fee-based package shall be established on the Website at the time of enrollment and payment confirmation. Combined, these items shall generate and be referred to as an Order, and shall be assigned a specific Order number for reference and tracking. We reserve the right to change fees and charges at any time, but will provide reasonable Notice. Your Order will be immediately suspended and/or terminated if payment fails or is not timely received.
5.3 Additional Orders. Additional Orders can be added to the Account and will receive a unique scope of work and fee.
5.4 Taxes. All fees and charges shall be quoted and payable in U.S. Dollars. Customer is responsible for all taxes that apply to the use of the System, if any, in all applicable jurisdictions.
5.5 Cancellation. Customer may cancel an Order at any time, but will not be entitled to a refund unless allowed under other provisions of the Terms. This provision is not intended to override any local applicable laws regarding cancellation rights.
5.6 System Interruption and Modification. We reserve the right to interrupt, delay, pause or discontinue System for maintenance, upgrades or due to unforeseen circumstances. In the event that We need to do so, We will provide as much Notice as is reasonably possible. We further reserve the right to amend, augment, increase, reduce and/or change the System, including any components thereof, at any time and at Our sole discretion.
- AGREEMENT PERIOD & TERMINATION
6.1 Agreement Period. The Agreement will commence on the Effective Date and continue until: (A) the end of the 30-day Trial Period if Customer does not engage Covered360, Inc. for additional work pursuant to an Order; (B) the Customer accepts the final deliverable required under the existing work Order, and no other Orders for Work are in place; or (C) until either party terminates the Agreement (the Agreement Period).
6.2 Termination. You are free to stop using Your account at any time for any reason. Notwithstanding any provision of these Terms, We reserve the right at Our sole discretion, and without any notice or liability, to suspend or terminate Your Account and access to the System at any time, and in Our sole discretion, if: (A) You are not meeting, or have violated, any of the Terms of the Agreement or of the Purpose; (B) You are using the System in a way that poses a risk of harm, loss or damage to Us, other Users or third parties; (C) you have not placed an Order for 12 consecutive months (provided another Order is not still open or outstanding); (D) You are not timely and diligently providing the User Content and information necessary for Covered360, Inc. to fulfill the Purpose; or (E) We suspend or cancel operation of the System, or cease operations for any period of time.
Where possible, We will provide You with reasonable advance Notice to remedy the activity or inactivity that is prompting the suspension or termination, and give You access to a copy of Your User Content from the System. If You fail to timely address the basis for termination or suspension, We will terminate Your Account, Order(s) and/or access to the System.
6.3 Effects of Termination. The following provisions will survive termination and/or expiration of this Agreement: (A) any obligation of Customer to pay fees incurred before termination or expiration; (B) provisions regarding Ownership, Intellectual Property, Feedback, Confidential Information, Warranty Disclaimers, Indemnification, Limitation of Liability; and (C) any other provision of this Agreement that must survive to fulfill its essential purpose.
- USER RESPONSIBILITIES & RESTRICTIONS
7.1 Acceptable Use. Customer shall comply with all Terms regarding access and use of the System as set forth in this Agreement or an Order.
7.2 Limitations on Use. Permission to access the System is subject to these Terms, the applicable Order and further conditioned upon the following: Customers and Users shall not: (A) provide Account passwords or other log-in credential to any third party or unauthorized User; (B) modify or otherwise make derivative works of the System or System Content either directly or indirectly; (C) reproduce, distribute or display the System or System Content except as expressly permitted in these Terms; (D) remove or modify any copyright, trademark, or other proprietary notices that have been placed in the System or System Content, including Forms; (E) use any data mining, robots or similar data gathering or extraction methods in connection with the System in any way; (F) use the System or System Content other than for their intended purpose; (G) infringe upon the intellectual property rights of others; (H) use the System for service bureau or time-sharing purposes, or in any other way allow third parties to exploit the System; (I) access or share non-public System features or content directly or indirectly; (J) Access or utilize the System in any way that exceeds the scope of permissions established for the Account or in any Order(s); or (K) access or use the System or System Content, directly or indirectly, in whole or in part, to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy, decompile, dissect or reverse engineer any ideas, features, designs, layouts, functions or graphics of the System, including any hardware and software supporting the System, for any or no purpose.
7.3 Use of Communal Areas and the System. The System may include publicly accessible discussion forums, bulletin boards, blogs, posts, review services or other forums in which You and/or third parties may post reviews or other content, messages, materials or other items on the System (Communal Areas, herein). You are solely responsible for Your use of such Communal Areas and use them at Your own risk. Notwithstanding any other provisions regarding Confidential Information in these Terms, information posted to a Communal Area will not be considered Confidential Information in part or in full. You further agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the System any of the following:
- any User Content that is Confidential Information;
- any message, data, information, text, music, sound, photos, graphics, code or other material that is false, unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that impersonates any person or entity or otherwise misrepresents an affiliation with, or the position of, a person or entity;
- unsolicited promotions, political campaigning, advertising or solicitations, including solicitations for clients of any type;
- private information of any third party, including, without limitation, addresses, phone numbers, email addresses or credit card numbers;
- viruses, corrupted data or other harmful, mining, disruptive or destructive files;
- User Content that is unrelated to the topic of the Communal Area(s) in which such User Content is posted; or
- User Content that, in Our sole judgment, is objectionable, offensive or which restricts or inhibits any other person from using or enjoying the Communal Areas or the System, or which may expose Us or Our affiliates or other users to any claim, harm or liability of any type.
Covered360, Inc. has a “zero-tolerance” policy towards SPAM: You may not use the Communal Areas or the System generally to send commercial or other messages to any third-party if those messages are not solicited, authorized or welcomed by the third-party, and in Your use of the System You must comply with all applicable laws, including laws that apply in any jurisdiction to SPAM and marketing practices, and with any applicable marketing association guidelines on ethical marketing practices.
7.4 Consequences of Violation. Except as expressly permitted, any use of any portion of the System or System Content without the prior written permission of Covered360, Inc. is strictly prohibited. In the event that We suspect, whether proven or not, any breach of the requirements of this section, or the Terms in general, by third parties, Customers and/or Users, We may suspend Your Account, the Agreement and access to the System without advanced notice, in addition to any other available remedies. Any such unauthorized use may also violate applicable laws, including without limitation American and international copyright and trademark laws.
7.5 For Your Use Only. The free 30-day Trial Period, Your Account and any Order is for Your personal or business-related use only. You may not resell, assign, lease or provide access to Your Account, or the free Trial Period, Order(s) or output associated with Your Account, to any other person or entity except as expressly permitted by the Terms, the System, Account, Order or written approval by Covered360, Inc. If You are an attorney or professional, and intend to use the System to benefit Your clients, that usage will be subject to additional terms to be provided under a separate agreement.
7.6 Compliance with Laws. In its access to or use of the System, User shall comply with all applicable local, state, federal and/or international laws to the fullest extent required.
7.7 Your Warranty. By accepting the Terms, You represent and warrant that Your use of the System will be consistent with all of the conditions and Terms set forth herein, Your Account and Order(s), and will not infringe or violate the rights (including intellectual property) of Covered360, Inc., or any other party, or breach any contract or legal duty to Covered360, Inc.
- INTELLECTUAL PROPERTY OF COVERED360, INC. AND OTHERS
8.1 Covered360, Inc. IP Rights to the System. Other than expressly granted in these Terms, Covered360, Inc. does not grant Customer or User any intellectual property license or rights in or to the System, or to any of its individual or combined components or Content. Other than the User Content, the System and all System Content is the exclusive property of Covered360, Inc. and/or its Associates, and is protected by American and international copyright laws. Covered360, Inc. hereby expressly reserves all rights, titles, and interest in and to the System, including, but not limited to, all Forms, software, graphics, and interfaces. All trademarks, registered trademarks, product names and company names or logos referenced in the System are also the exclusive property of Covered360, Inc. and/or its Associates, and are hereby expressly reserved.
8.2 No Licenses Conferred. Unless explicitly stated herein, nothing in these Terms or the System shall be construed to confer any license to any intellectual property rights of Covered360, Inc. or its Associates, whether by estoppel, implication, or otherwise. Any rights not expressly granted in the Terms, or an Order, are expressly reserved by Covered360, Inc. and its Associates.
8.3 User Feedback. Feedback shall refer to any suggestion or idea expressed by User for improving or otherwise modifying any of Covered360, Inc.’s products or System. Covered360, Inc. has not agreed to, and does not agree to, treat as confidential any Feedback User provides, and nothing in these Terms or in the parties’ dealings arising out of or related to this Agreement will restrict Covered360, Inc.’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting the User. Notwithstanding any other provisions in these Terms, Feedback will not be considered Confidential Information in part or in full.
8.4 Limited Referrals. As part of, or separate from an Account or Order, We may refer You to a third party for additional services, advice or input. Such referrals could include professionals such as accountants, lawyers or consultants. Any such referral is intended only as a convenience to You, and does not constitute an endorsement of or guarantee for, such referred individual or entity. We hereby disclaim any responsibility whatsoever for the credentials, performance or outcomes achieved, if any, by any individual or entity that We may recommend to You at any time. Rather, You hereby agree to perform Your own due diligence investigation into the selection of any individual or entity with whom/which You elect to do business, including any referrals from Us, and hereby release Us from any liability for such referrals. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Covered360, Inc. or its Associates. Associates shall mean Covered360, Inc.’s officers, directors, employees, consultants, shareholders, investors, parents, subsidiaries, agents, affiliates, independent contractors, licensors, suppliers, advertisers, agents, sponsors, successors, partners, representatives, and legal assigns.
8.5 Copyright Notice/DMCA Notice
Covered360, Inc. respects claims to intellectual property, including copyrights, trademarks, patents, trade secrets, etc. consistent with the terms of the Digital Millennium Copyright Act (DMCA), Customer is hereby put on notice that We will terminate the Account(s) of any and all Customers who are copyright infringers. For claims of copyright infringement, please immediately contact email@example.com.
- CONFIDENTIAL INFORMATION
9.1 Limit Your Provision of Confidential Information. Confidential Information shall refer to any User Content uploaded and/or stored in the System that the User physically has marked conspicuously with the term “Confidential”. Notwithstanding the foregoing, Confidential Information does not include information that: (A) is already in Our possession at the time of disclosure from another source that is not under a confidentiality obligation; (B) is independently developed by Us without use of or reference to Confidential Information; (C) becomes known publicly, before or after disclosure, other than as a result of Our improper action or inaction; (D) is approved for release in writing by You; or (E) is considered at any point in time to constitute Your trade secret. Your use of, and Our provision of, the System does not in any way require information that could or does constitute Your trade secret, and You hereby agree that You will not upload, store and/or share any trade secret information with Us in any way or format at any time unless it is the subject of a separate written agreement.
9.2 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto by Customer to Covered360, Inc. User will retain all right, title, and interest in and to all Confidential Information.
9.3 Nondisclosure. We will not use Your Confidential Information for any reason other than to facilitate, further and fulfill the requirements of the Purpose. We shall not: (A) disclose Confidential Information to any independent contractor unless such person needs access in order to facilitate the Purpose, and executes a nondisclosure agreement with Us; or (B) intentionally disclose Confidential Information to any other third party without Your prior written consent.
9.4 Reasonable Care & Legal Obligation. We will protect Confidential Information with the same degree of care We use to protect Our own confidential information of similar nature and importance, but with no less than reasonable care. You shall promptly notify Us of any suspected or confirmed misuse or misappropriation of Confidential Information that comes to Your attention. Notwithstanding the foregoing, We may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Under such circumstances, We shall give You prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest or limit such required disclosure, at Your expense.
- DISCLAIMERS, INDEMNITY AND LIMITATION OF LIABILITY
10.1 Warranty Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, YOUR USE OF THE SYSTEM IN ANY WAY CONSTITUTES AN ACCEPTANCE THAT YOU ARE USING THE SYSTEM AT YOUR OWN RISK AND THAT THE SYSTEM AND ITS COMPONENTS ARE PROVIDED AS IS AND AS AVAILABLE, WITH NO REPRESENTATION, PROMISES OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER VENDOR, NOR ANY OF ITS ASSOCIATES: (A) HAS ANY OBLIGATION TO INDEMNIFY OR DEFEND USERS AGAINST THIRD PARTY CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) REPRESENTS OR WARRANTS THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (C) REPRESENTS OR WARRANTS THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, FREE FROM BUGS, VIRUSES, INTERRUPTION, DATA LOSS, ERRORS, THEFT OR DESTRUCTION, OR THAT USER CONTENT OR ACCOUNT INFORMATION WILL REMAIN PRIVATE OR SECURE, OR (D) THAT YOUR USE OF THE SYSTEM WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATION, LAW, REGULATION OR ADMINISTRATIVE REQUIREMENT.
10.2 Indemnity. Customer shall defend, indemnify, and hold harmless Covered360, Inc. and its Associates against any Indemnified Claim. Indemnified Claim shall mean any third party claim, suit, or proceeding arising out of or related to a User’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (A) claims by Users or by User’s employees, as well as by User’s own customers; (B) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including User Content; (C) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through User’s Account, including without limitation by User’s Content; and (D) claims that use of the System through User’s Account harasses, defames, or defrauds a third party, violates the Terms, or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Covered360, Inc.’s negligence in whole or in part. Customer’s indemnification obligations set forth above include retention of attorneys and/or payment of attorneys’ fees selected by Us, expert fees and fees and costs in any way related to the claim or litigation, as well as settlement at User’s expense and payment of judgments. Covered360, Inc. will have the right, to be exercised reasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
10.3 Limitation of Liability
10.4 Dollar Cap. ANY LIABILITY OF VENDOR OR ITS ASSOCIATES ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SYSTEM, OR THESE TERMS, (REGARDLESS OF ALLEGED CAUSE) SHALL NOT EXCEED THE TOTAL DOLLAR AMOUNT OF FEES PAID BY USER TO VENDOR FOR THE ORDER(S) THAT IS THE SUBJECT OF THE DISPUTE, OR $2000.00, WHICHEVER IS GREATER. THIS SHALL CONSTITUTE THE SOLE REMEDY AVAILABLE TO USER FROM VENDOR AND/OR ITS ASSOCIATES (JOINTLY, NOT INDIVIDUALLY) REGARDLESS OF THE LEGAL THEORY, CAUSE OF ACTION, ALLEGED DAMAGE OR BASIS OF CLAIM.
10.5 Exclusion of Consequential and Punitive Damages. WITHOUT LIMITATION, NEITHER VENDOR NOR ITS ASSOCIATES WILL BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S ASSOCIATES FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SYSTEM, OR THESE TERMS, REGARDLESS OF THE LEGAL THEORY, CAUSE OF ACTION OR BASIS OF CLAIM.
10.6 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF CLAIM OR ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, INFRINGEMENT, OR OTHERWISE; (C) REGARDLESS OF ALLEGED CAUSE OF LIABILITY, (D) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (E) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
If applicable law limits the application of the limitations of liability set forth in these Terms, in whole or in part, the total liability, if any, of Covered360, Inc. and its Associates (jointly, not individually) shall be limited to the maximum extent permissible under the applicable law.
- DISPUTE RESOLUTION AND TRIAL WAIVER
THE PARTIES HEREBY ACKNOWLEDGE AND WAIVE THEIR RIGHT TO A PUBLIC TRIAL PROCESS BY JURY OR JUDGE IN FAVOR OF THE ALTERNATIVE DISPUTE RESOLUTION PROCESS SET FORTH HEREIN.
11.1 Mediation. As a condition precedent to Arbitration, the parties shall be required to make a good faith attempt at mediating any disputes. The parties will select a mutually agreeable mediator and share the costs evenly unless another arrangement is agreed upon. At least one good faith mediation session shall occur before arbitration can be initiated. The parties shall each bear their respective costs.
11.2 Arbitration. The parties hereby agree to arbitrate any disputes that cannot be resolved in mediation. If the parties cannot agree on a suitable arbitrator, the following shall be utilized: (A) American Arbitration Association if in North America (located in Oregon), or (B) International Chamber of Commerce Arbitration Tribunal on any other continent (located in London). The prevailing party shall be entitled to an award of its attorney’s fees an arbitration costs subject to potential offset at the discretion of the arbitrator(s) if both parties prevail upon some claims, but not others.
11.3 No Class Action. The parties hereby agree that: (A) no arbitration proceeding hereunder, regardless of the basis for the dispute, shall be certified as a class action or proceed as a class action, or on a basis involving claims brought in a purported representative capacity on behalf of the general public, other customers or potential customers or persons similarly situated, and (B) no arbitration proceeding hereunder shall be consolidated with, or joined in any way with, any other arbitration proceeding without the written agreement of both parties.
12.1 Best Efforts. Covered360, Inc. strives to keep the forms and documents utilized in the System accurate, current and up-to-date. However, because the law and requirements changes rapidly, Covered360, Inc. cannot guarantee that all of the information on the forms and documents utilized in the System is completely current. In addition, the law is different from jurisdiction to jurisdiction, and may be subject to interpretation by different courts.
12.2 Beta Products. We may offer access to a Beta product or platform to certain Users. The Terms of this Agreement shall apply to participation in any such Beta offering, unless different terms and conditions are supplied at the time of enrollment.
12.3 Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.4 Notices. Covered360, Inc. shall send all notices required under this Agreement to Customer’s email address associated with the Account, and such notices will be deemed received 24 hours after they are sent. Customer shall send notices required under this Agreement to firstname.lastname@example.org, and such notices will be deemed received 24 hours after they are sent.
12.4 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, malicious hacking or electronic infiltration, hurricanes, earthquakes, extended power outages, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.5 Assignment & Successors. Customer may not assign the Terms, this Agreement or any of the rights or obligations thereunder without Covered360, Inc.’s express written consent. Except to the extent forbidden in this Assignment & Successors section, the Terms and this Agreement will be binding upon and inure to the benefit of the parties’ respective legal successors.
12.6 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.7 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. Conversely, while these Terms do not require Covered360, Inc. to take any action for violation of any Terms, Covered360, Inc. may take any such action as necessary and permissible.
12.8 Choice of Law. This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Oregon, including without limitation applicable federal law, without reference to: (A) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (B) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (C) other international laws. This Choice of Law section governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.10 Construction. The parties agree that the terms of this Agreement result from negotiations between them and the exchange of valuable monetary consideration in exchange for access to a web-based system. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.11 Technology Export. Customer shall not: (A) permit any third party or User to access or use the System in violation of any U.S. law or regulation; or (B) export any software provided by Covered360, Inc. or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any User or third party to access or use the System in, or export such software to, a country subject to a United States embargo as identified by the U.S. Department of the Treasury on the Effective Date (most recently, Cuba, Iran, North Korea, Sudan, and Syria).
12.12 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THESE TERMS, UNDERSTANDS EACH TERM, AND AGREES TO BE BOUND BY EACH TERM. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND HEREBY ENTER INTO THIS AGREEMENT.