KEEPSOLID, INC. END USER AGREEMENT
Last Updated: November 26, 2019
MANDATORY BINDING ARBITATION. THIS KEEPSOLID, INC. END USER AGREEMENT CONTAINS A LEGALLY BINDING MANDATORY ARBITRATION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS PROVISION GOVERNING DISPUTES ARISING FROM YOUR USE OF KEEPSOLID, INC.’S SERVICES. THIS PROVISION AFFECT YOUR LEGAL RIGHTS AS DETAILED IN SECTION 14 BELOW. PLEASE REVIEW THIS PROVISION CAREFULLY BEFORE AGREEING TO BE LEGALLY BOUND BY THIS AGREEMENT.
This KeepSolid, Inc. End User Agreement, and any addenda, order forms, exhibits, schedules, appendices, and amendments thereto and incorporated herein (collectively, “Agreement”) is a legally binding agreement between you, the end user of KeepSolid, Inc.’s websites, mobile and other applications, products, services, software, and accompanying documentation (each, a “Service,” collectively, “Services”) and any entity that you represent (“you,” “your”), and KeepSolid, Inc. and its affiliates (“KeepSolid,” “we,” “our,” or “us”).
CONTACTING KEEPSOLID. Please direct all notices, questions, and/or concerns related to the Services and/or this Agreement to [email protected].
BY ACTIVATING, USING, AND/OR ACCESSING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE, OR THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION (IF DIFFERENT THAN 18), AND YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO LEGALLY-BINDING AGREEMENTS ON YOUR OWN BEHALF, AND YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACTIVATE, USE, AND/OR ACCESS THE SERVICES.
Certain Services have the following additional Agreement addenda (“Addenda”), which cover the terms and conditions applicable to your use of such Services. Other KeepSolid policies listed below also constitute Addenda. These Addenda are incorporated into and are made a part of this Agreement by this reference. In case of any direct conflict between the terms of an Addendum and this Agreement, unless expressly otherwise indicated in this Agreement, the terms of the Addendum shall govern with respect to the Service(s) covered by the Addendum.KeepSolid VPN Unlimited ADDENDUM KeepSolid VPN Lite ADDENDUM KeepSolid Sign ADDENDUM
LIMITED LICENSE. Subject to the terms of this Agreement, KeepSolid grants to you a limited, revocable, non-exclusive, non-assignable, non-sublicensable, and non-transferable license, to access, display, and use the Services for:
- In the case of Services that we designate for corporate, commercial, or business use, by you for internal business purposes only and not for resale;
- In the case of all other Services, by a natural person for personal, noncommercial purposes use only.
LICENSE RESTRICTIONS. Unless otherwise indicated in the applicable Addendum, the license granted to you under this Agreement is limited to a single authorized account to access, display, and use the Services on a single authorized device. You may not resell or distribute the Services, in whole or in part, by any means. No license is granted to you in the human readable code or source code of the Services. You may not make any modifications to, or unauthorized copies of, the Services. You may not edit, alter, abridge or otherwise change in any manner the content of the Services, including, without limitation, all copyright and proprietary rights notices. You may not, and may not permit others to:
- reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the Services;
- modify, translate, adapt, alter, or create derivative works from the Services;
- copy (other than one back-up copy), distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Services; or
- distribute, sublicense, rent, lease, loan, or grant access to or use of, the Services to any third party.
These License Restrictions are in addition to the Use Restrictions contained in Section 6.
- UPDATES. You acknowledge and agree that KeepSolid may from time to time, in KeepSolid’s sole discretion, cause the Services to download and install updates, which may take the form bug fixes, patches, additional features, or new versions of the Services. You will allow the Services to download and install such updates. If you fail to allow the Services to download and install such updates, the Services may not function as intended and/or not function at all. We may choose, in our sole discretion, to not provide support for a Service until all updates have been downloaded and installed. You agree that KeepSolid has no obligation to make any updates available to you.
KeepSolid may modify this Agreement at any time for any reason, including, without limitation, in order to reflect changes to applicable law or changes to our Services. You should review this Agreement regularly. We will indicate that changes to this Agreement have been made by updating the date indicated after “Last Updated:” at the beginning of this Agreement. If you do not accept any of the modifications made to this Agreement, your sole and exclusive remedy is to terminate your use of the Services. Notwithstanding the terms of any Refund Policy applicable to a Service and subject to the terms of this section, if you choose to terminate your use of the Services due to our modification of this Agreement, we will refund, on a pro-rata basis, any unearned pre-paid Fee (as defined in Section 3) that you paid for the Services. For example, if you pre-paid the Fee for a 30-day month for one of our Services, and on the 15th of the month you notify us that you are terminating your use of the Service due to a modification to this Agreement, we will refund to you half of the pre-paid unearned Fee representing the remainder of the month. We will not refund any unearned pre-paid Fee if you have breached this Agreement. By continuing to use or access the Services after the modifications are in effect for thirty (30) days, you are deemed to be bound by the modified Agreement and you will have no right to any refund under this section.
3. FEES AND REFUND POLICY
- FEES. You shall pay all fees charged by KeepSolid for each of the Services (“Fees”) in effect at the time in accordance with the relevant pricing plan (“Pricing Plan”). You may review our current Pricing Plan by viewing the Addenda for the relevant Services or the page of our website containing the most current Pricing Plan for the relevant Services. We generally charge Fees on a pre-paid subscription basis, but we may, in our sole discretion, change our Fees and/or Fee structure at any time by updating the Pricing Plans. We may take steps to collect the Fees from you. You will pay our reasonable out-of-pocket collection costs and expenses, including, without limitation, attorney’s fees.
PAYMENT. You will pay the applicable Fee via a third-party payment processors’ method of payment. We currently use the following methods of payment:
- for iOS devices – Apple iTunes In-App Purchase;
- for macOS devices – Apple Mac Store, Amazon, or PayPal; and
- for Windows devices – Amazon, PayPal, Stripe, or Paymentwall.
If we have notice that any Fee payment is not processed for any reason, we will notify you via email address that we have on file for you; your access to the applicable Services will be suspended until we receive payment of the applicable Fees.
FREE TRIALS; REFUNDS; DISCOUNTS. We may offer temporary free trial or beta versions for all or some of the Services. Free trial versions of the Services may not contain full functionality and may have certain features disabled. Our free trials are generally for a period of seven (7) days, but we may, in our sole discretion, cease offering, or lengthen or shorten, free trials at any time. A beta version does not represent the final product and may contain bugs. We may, in our sole discretion, collect the applicable subscription Fee from you at the beginning or at the end of the free trial period.
Subject to the terms and conditions of this Agreement, we also offer a refund for a period of seven (7) days after your initiation of a Service subscription for all subscriptions. For clarity: (i) for non-recurring subscriptions, we offer a refund for a period of seven (7) days after you subscribe for the particular Service subscription (and pay the applicable Fee); and (ii) for recurring subscriptions, we offer a refund for a period of seven (7) days after you first subscribe for the particular recurring Service subscription (and pay the applicable recurring Fee for the first time). This means that any and all subsequent payments of a recurring subscription Fee are not eligible for a refund. For example:
You subscribe for a monthly recurring Service subscription, for which you pay your first applicable Fee on September 1. You are eligible to receive a refund of your first applicable Fee through September 8. On October 1, you pay your second applicable Fee for the monthly recurring Service subscription. You are not eligible to receive a refund your second applicable Fee at any time.
You can claim your refund from third-party payment processors as follows:
- Apple In-App Purchase refunds can be claimed at (https://expresslane.apple.com) or a successor website;
- Google Play Store In-App Purchase refunds can be claimed at (https://support.google.com/googleplay/contact/play_request_refund_apps) or a successor website;
- Amazon purchase refunds can be claimed at (http://www.amazon.com/gp/css/returns/homepage) or a successor website;
In our experience, it can take up to ten (10) days after cancellation to receive a refund. KeepSolid does not control, and is not responsible for, the third-party payment processors’ refund process. In certain cases, we may not be able to refund the applicable Fee via the same third-party payment processor used to pay us such Fee. In such cases, you will work with us to process the refund of the applicable Fee by other means.
In our sole discretion, at any time and for any term, we may make available certain promotions, offers, and/or discounts (each, a “Promotion,” collectively, “Promotions”) on any of our Services. You may not assign, exchange, sell, transfer, combine with any other Promotion, or redeem for cash or other goods and services any promotion. Our Promotions are void where prohibited or otherwise restricted by law. We may offer or discontinue offering any Promotion at any time in our sole discretion.
- TAXES. You will pay all applicable taxes, including, without limitation, value-added, use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees and surcharges, on your purchase and/or use of the Services, whether charged to you or to KeepSolid, immediately when due. You will pay all applicable third-party fees, including, without limitation, telephone toll charges, mobile carrier fees, internet service provider charges, data plan charges, credit card fees, foreign exchange fees, and foreign transaction fees. KeepSolid is not responsible for the above-described taxes and third-party fees. You may not withhold any amounts for the above-described taxes and third-party fees from the Fees.
4. ELECTRONIC AGREEMENT AND COMMUNICATIONS
ELECTRONIC AGREEMENT. By activating, accessing, and/or using the Services, you agree and consent to:
- transact business related to the Services with us electronically;
- receive all documents, notices, communications, invoices, policies, agreements, and contracts, including, without limitation, this Agreement (each, a “Disclosure”; “collectively, Disclosures”), from us electronically; and
- agree to the Disclosures in the same manner as if the Disclosures were made on paper, and your signature, if required by applicable law, were a “wet-ink” signature. All Disclosures in either electronic or paper format from us to you will be considered "in writing."
- SCOPE. We will provide Disclosures to you electronically either via the email address we have for you on file or through the Services. We will not send you a paper copy of any Disclosure unless we deem it appropriate to do so. You may obtain a paper copy of an electronic Disclosure by printing it. We reserve the right, but assume no obligation, to provide a paper (instead of electronic) copy of any Disclosure that you have authorized us to provide electronically. We may choose to discontinue electronic Disclosures at any time, in our discretion.
- SOFTWARE AND HARDWARE REQUIREMENTS. In order to receive, access, and retain Disclosures electronically, you must meet the following computer hardware and software requirements: access to the internet; an email account and the ability to receive email through internet; a web browser which is SSL-compliant and supports secure sessions, or the equivalent software; and hardware capable of running this software.
- WITHDRAWING YOUR CONSENT. You can withdraw your consent to electronically receive Disclosures by contacting us by using the means indicated above in the “CONTACTING KEEPSOLID” paragraph. In the event that you withdraw consent to transact business with KeepSolid electronically, in our sole discretion, we may immediately terminate this Agreement and your access and/or use of the Services.
- NOTIFYING KEEPSOLID OF A CHANGE IN YOUR EMAIL ADDRESS. You must notify us of any change in your email address by logging into your KeepSolid account at https://my.keepsolid.com/login/ and updating the “email address” field in your profile.
EXPRESS CONSENT TO RECEIVE TELEPHONE COMMUNICATIONS. You consent to receive telephone calls and SMS/text messages using automated dialers or similar devices, or using a prerecorded or artificial voice, or using Voice over Internet Protocol technology from us or our service providers at any telephone number (including a cellular or mobile telephone number) that you have provided, will provide to us in the future, or that KeepSolid has otherwise obtained. We may place such calls and text messages to you for any lawful purpose. You agree that you may incur telephone minute and/or text message charges from my cellular service provider when KeepSolid calls and texts me. You agree that KeepSolid’s service providers may also place calls and text messages to you for any lawful purpose, but such service providers may do so only as authorized by KeepSolid, and not for their own purposes. You may revoke this consent to be called or texted at any time by contacting KeepSolid by using the means indicated above in the “CONTACTING KEEPSOLID” paragraph.
IMPORTANT: Certain Services are only offered by KeepSolid only if we have consent to call and/or text you. In the event that you withdraw consent to be called or texted by KeepSolid, in our sole discretion, we may immediately terminate this Agreement and your access and/or use of the Services.
Except as stated in this Agreement, we do not grant to you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the Services. You agree and acknowledge that in providing the Services, KeepSolid utilizes (i) the name, logo, and domain name of the product names associated with the Services and other trademarks, (ii) certain audio and visual information, documents, software and other works of authorship, and (iii) other technology, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information that is protected by intellectual property rights owned or licensed by KeepSolid (“KeepSolid IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the KeepSolid IP Rights are granted to you, and all such rights are hereby expressly reserved.
6. USE OF KEEPSOLID SERVICES
- ACCOUNT INFORMATION. You will ensure that any and all information that you provide to KeepSolid is true, accurate, and correct, and you will provide KeepSolid with updated information, including, without limitation, your name and email address, immediately upon any changes to such information. You are responsible for all activity that occurs via your KeepSolid account. You agree not to leave your devices unattended while logged in to your KeepSolid account and to log off immediately at the end of each session. You may not: (i) provide your KeepSolid account username and/or password or other access information to any other person; or (ii) use another person’s account. You are responsible for taking reasonable precautions to ensure the safety, security, and integrity of your KeepSolid account, transactions, and related access information, and for complying with any security procedures and features available on your device or through KeepSolid that are used to protect your device and KeepSolid account against unauthorized use. If you believe that someone may have unauthorized access to your KeepSolid account, you will immediately provide KeepSolid with notice by using the means indicated above in the “CONTACTING KEEPSOLID” paragraph. You will cooperate with KeepSolid in any investigation of unauthorized access and use any fraud prevention or other related measures that we prescribe. KeepSolid does not have access to your KeepSolid account password. If you lose or forget your KeepSolid account password, we will not be able to assist you in gaining access to your KeepSolid account or your Content (as defined in Section 8) stored therein. We will maintain a binary file of your Content, provided that you are a paid-subscriber of synchronization services. The binary file is created when you synchronize or back up your data and is kept in order to restore your Content in case of a local system crash, damage, loss, or hack attempt that results in the destruction of your Content.
USE RESTRICTIONS. You may not use the Services to engage in any activity that, in our sole discretion:
- Violates or facilitates the violation of any applicable law;
- Violates or facilitates the violation of any applicable industry standards, including, without limitation, the guidelines published by the CTIA, the Mobile Marketing Association, or any other accepted industry associations;
- Violates or facilitates the violation of any agreement between you and a third party, or otherwise constitutes a breach of a third party’s rights;
- Enables or permits others to use the Services using your KeepSolid account information;
- Constitutes unsolicited advertising, marketing, or other similar activities, including, without limitation, unsolicited or unwanted telephone calls, SMS/text messages, emails, voicemails, or faxes, or any other activity that may violate applicable anti-spam laws including, without limitation, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act;
- Constitutes harassing, abusive, uncivil, indecent, sexually explicit, pornographic, defamatory, libelous, vulgar, vicious, malicious, or otherwise inappropriate activity;
- Constitutes harvesting, screen-scraping, database-scraping, or otherwise collecting information, including, without limitation, email addresses and telephone numbers, about others;
- Constitutes using the Services on any device that you do not own or control (or for which you do not have authorization to install or run the Services, such as where prohibited by applicable security policies in the case of corporate users), and you may not distribute or make the Services available over a network where it could be used by multiple devices at the same time;
- Constitutes “hacking,” distribution of viruses and/or malware, phishing, accessing a KeepSolid account of another user, fraud, identity theft, or any other activity aimed at unlawful commercial or personal gain, including, without limitation, creating a false identity or forged email address, phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or telephone call;
- Infringes any right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights, including, without limitation, downloading, uploading, or otherwise transmitting copyrighted material without the rightful owner appropriate consent or otherwise in violation of applicable intellectual property law or agreement (see our DMCA Policy);
- Disrupts, overburdens, destroys, or otherwise interferes with access, functionality, or use of any of the Services;
- Constitutes downloading, uploading, or otherwise transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity;
- Constitutes scanning for open proxies or open relays, port scanning, pop-up launching, and/or co-branding, framing or linking any KeepSolid website or applications;
- Constitutes accessing and/or using the Services from any country under sanctions by the United States Office of Foreign Assets Control, or exporting or re-exporting the Services in violation of applicable export control laws;
- Constitutes any breach of this Agreement; and/or
- Constitutes an attempt to engage in any of the above Use Restrictions.
Please report any violation or perceived violation of the above Use Restrictions to [email protected]. Nothing in this Agreement obligates KeepSolid to monitor for or to pursue violations of the above Use Restrictions, but we may do so in our sole discretion.
7. USER REPRESENTATIONS AND WARRANTIES
You represent and warrant to us that: (a) you have all necessary licenses and permissions to register for and use the Services, and have the right, power, and ability to enter into and perform under this Agreement; (b) have all the rights to grant any licenses under this Agreement; (c) your access to and/or use of the Services will comply with all applicable laws; and (d) you, or the entity on behalf of which you are using the Services, are not a “restricted person,” “denied person,” or “specially designated national” under applicable United States law; (e) any and all information that you submit to KeepSolid is, and shall remain, true, accurate, and correct. If you are agreeing to this Agreement on behalf of an organization or entity, you represent and warrant that you have the right, power, and ability to agree to the Agreement on that organization or entity’s behalf and bind organization or entity to this Agreement.
8. USER CONTENT
- “Content” means any material, including, without limitation, audio files, video files, electronic documents, or electronic images;
- “Share” or “Sharing” means (to) email(ing), post(ing), transmit(ing), upload(ing), or otherwise make(ing) available.
10. THIRD PARTY LINKS AND AGREEMENTS
You will indemnify, defend, and hold KeepSolid (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all direct or indirect claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) resulting from any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, and/or obligations set forth in this Agreement; (b) your use of the Services; (c) your violation of any third-party right, including, without limitation, any right of privacy, publicity rights, or intellectual property rights; or (d) your violation of any applicable law.
12. SERVICE QUALITY AND LIMITATION OF LIABILITY
- SERVICE QUALITY. Subject to the terms of this Agreement, we make commercially reasonable efforts to provide an Uptime for each Service of 99.9% or better during each month. “Uptime” is calculated, separately with respect to each Service, by subtracting from 100% the percentage of minutes during the month in which a Service was down (i.e. not operational and capable of transmitting data). Uptime measurement excludes downtime resulting directly or indirectly from scheduled technical maintenance and repair. Contact us at [email protected], if you are experiencing any issues with any of our Services.
- NO WARRANTIES. THE SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE AVAILABLE”, AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KEEPSOLID OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, KEEPSOLID, ITS PROCESSORS, ITS SERVICE PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT: THAT THE CONTENT OF THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. KEEPSOLID DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR THIRD-PARTY LINKS, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND KEEPSOLID WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. IN ORDER FOR OUR SERVICES TO OPERATE FOR YOU, YOU MUST HAVE AT ALL TIMES AN ACTIVE AND STABLE CONNECTION TO THE INTERNET.
- LIMITATION OF LIABILITY AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KEEPSOLID, ITS PROCESSORS, SUPPLIERS OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL KEEPSOLID BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KEEPSOLID AND ITS PROCESSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (d) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (f) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT SHARING THROUGH THE SERVICES; AND/OR (g) USER CONTENT OR DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL KEEPSOLID, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY KEEPSOLID IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KEEPSOLID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
13. TERM AND TERMINATION
- TERM. This Agreement shall be effective from the date you accept and are legally bound by this Agreement and shall continue in effect until any termination or expiration in accordance with this Agreement.
- TERMINATION. Except as otherwise provided in this Agreement, we may terminate this Agreement and block, restrict, suspend, or revoke your access to and/or use of the Services, for any reason or no reason, at any time, without notice to you. We may also terminate this Agreement and block, restrict, suspend, or revoke your access to and/or use of the Services if you: (i) breach this Agreement; (ii) pose an unacceptable fraud risk to us; (iii) provide any false, incomplete, inaccurate, or misleading information to us; or (iv) otherwise engage in fraudulent, illegal, or improper conduct. We will not be liable to you for compensation, reimbursement, or damages of any kind in connection with any termination or suspension of your access to and/or use of the Services and/or this Agreement. We are not obligated to continue providing access to any Service beyond the date when KeepSolid ceases providing such Service to users generally. If this Agreement is terminated or expires for any reason, you agree, except as required otherwise by applicable law: (i) to immediately stop accessing and/or using the Services; (ii) that the license provided under this Agreement shall end; (iii) that we reserve the right (but have no obligation) to delete all of your Content stored on our servers; and (iv) that KeepSolid shall not be liable to you or any third party for termination of your access to and/or your use of the Services and/or deletion of your Content.
Except as otherwise provided in this Agreement, pre-paid Fees are not refundable upon any termination or expiration of this Agreement.
14. MANDATORY BINDING ARBITRATION
YOU AGREE THAT ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING NOW OR IN THE FUTURE UNDER OR RELATING IN ANY WAY TO THIS AGREEMENT, OR TO THE SERVICES ("CLAIMS") SHALL BE RESOLVED BY BINDING MANDATORY ARBITRATION. CLAIMS SUBJECT TO ARBITRATION INCLUDE CLAIMS THAT ARE MADE AS COUNTERCLAIMS, CROSS CLAIMS, THIRD PARTY CLAIMS, INTERPLEADERS, OR OTHERWISE. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, AND YOU THEREFORE AGREE TO WAIVE ANY RIGHT THAT YOU OR KEEPSOLID MIGHT OTHERWISE HAVE HAD TO A JURY TRIAL OR THE OPPORTUNITY TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY. YOU FURTHER AGREE THAT YOU WILL NOT BE ABLE TO BRING A CLASS ACTION OR OTHER REPRESENTATIVE ACTION (SUCH AS AN ACTION IN THE FORM OF A PRIVATE ATTORNEY GENERAL) TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY; NOR WILL YOU BE ABLE TO PARTICIPATE AS A CLASS MEMBER IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN ARBITRATION OR IN COURT BEFORE EITHER A JUDGE OR JURY. IF THE PRECEDING SENTENCE IS NOT ENFORCED FOR ANY REASON, THEN YOU AGREE THAT IN SUCH CASE ANY CLASS DISPUTE WILL NOT BE RESOLVED THROUGH ARBITRATION.
This binding mandatory arbitration provision applies to all Claims that you have against KeepSolid, our parent, subsidiaries, affiliates, licensees, predecessors, successors, assigns, and against their respective employees, agents, or assigns, or that we have against you. This binding arbitration also applies to all Claims regarding the applicability of this arbitration provision or the validity of the Agreement, in whole or in part. This Agreement and arbitration provision is made pursuant to a transaction involving interstate commerce and shall be governed by the United States Federal Arbitration Act, 9 U.S.C. §§ 1-16, as it may be amended.
The party filing a Claim in arbitration must file its Claim before JAMS or the American Arbitration Association under the rules of such arbitration administrator in effect at the time the Claim is filed. Arbitration hearings shall be held at a place within Bronx County or New York County, New York, and each Party hereby consents to personal jurisdiction in the foregoing forums. Judgment upon any arbitration award may be entered in any court having jurisdiction.
This binding mandatory arbitration provision shall survive: (i) termination or changes in the Agreement, and the relationship between you and us concerning the Agreement; and (ii) the bankruptcy of any party or any similar proceeding initiated by you or on your behalf. If any portion of this binding mandatory arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.
The parties acknowledge and agree that a breach of a party’s obligations with respect to the non-breaching party’s intellectual property or other proprietary rights could cause irreparable harm to the non-breaching party for which the non-breaching party would have no adequate remedy at law. Therefore, the parties agree that, notwithstanding the agreement of the parties to arbitrate Claims as set forth above, the non-breaching party may apply to a court of competent jurisdiction to seek to enjoin preliminarily or permanently any breach or threatened breach of the non-breaching party’s intellectual property or other proprietary rights.
- GOVERNING LAW. This Agreement will be governed by the substantive law of the state of New York, United States, as applied to agreements entered into and to be performed entirely within New York, without regard to New York’s choice of law or conflicts of law principles that would require application of law of a different jurisdiction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.
- ENTIRE AGREEMENT; SEVERABILITY; CONSTRUCTION. The terms of this Agreement are a complete statement of the agreement between you and KeepSolid with respect to its subject matter. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. You agree that you have read this Agreement, have had the opportunity to review it with an attorney of your choice, and have agreed to all of the terms of this Agreement. This Agreement shall be construed without regard to any presumptions against the party who drafted the Agreement.
- HEADINGS. Headings are included for convenience only and shall not be considered in interpreting this Agreement.
- CUMULATIVE. The Agreement does not limit any rights or remedies that KeepSolid may have under trade secret, copyright, patent, or any other laws.
- WAIVER. A party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Any waiver under this Agreement shall be in writing signed by an authorized representative of the waiving party. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
- ASSIGNMENT. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by KeepSolid without restriction. Any assignment or attempted assignment in violation of this provision is null and void.
- INDEPENDENT CONTRACTORS. Both parties acknowledge and agree that the parties are independent contractors and are not agents or representatives of each other. This Agreement is not creating, and does not intend to create, a joint venture, partnership, or franchise relationship between the parties.
- NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement confers, or is intended to confer, upon any person other than the parties (and KeepSolid’s affiliates), any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. No person other than the parties (and KeepSolid’s affiliates) may bring a claim pursuant to this Agreement.
- NOTICE. We may provide notice under this Agreement to you by email, postal mail, postings within the Services, or other legally permissible means. You may provide notice to us under this Agreement by email (at [email protected]), postal mail (at our corporate address), or other legally permissible means.
- FORCE MAJEURE. Except for any payment obligations, neither party will be liable for any failure or delay in performance, due in whole or in part, to utility failures (including power), failure of the internet, failure of telecommunications or information technology services, failure of telecommunications or information technology equipment, strikes or other labor disturbances (including, without limitation, a strike or other labor disturbance affecting a party), acts of war or terror, denial of service attacks or other information technology attacks or breaches affecting a party, floods, sabotage, fire, other natural disasters or Acts of God, or any other cause beyond a party’s reasonable control.
- SURVIVAL. Upon any termination or expiration of this Agreement, a party’s indemnification obligations, warranty disclaimers, or limitations of liabilities, arbitration, and miscellaneous provisions stated in this Agreement will survive such termination or expiration.