Terms & Privacy
This document discloses some or all of the ways a party gathers, uses, discloses, and manages, a customer or client's data.
2.1 Digital Millennium Copyright Act (“DMCA”). Copyright Infringement Notification Instructions
Thank you for visiting our website (the “Website”). These Copyright Infringement Notification Instructions are for copyright related claims only. Should you have any comments, questions, concerns, or issues related to abuse, harassment, inappropriate content, or privacy issues, please email us at firstname.lastname@example.org.
By utilizing the Website you agree that you have consulted with an attorney of your own choosing and at your own expense in order to fully understand all of your legal rights and obligations as a result of utilizing the Website and these Copyright Infringement Notification Instructions.
WARNING: PURSUANT TO 17 U.S.C. § 512(k), ANY PERSON WHO KNOWINGLY MATERIALLY MISPRESENTS THAT MATERIAL OR ACTIVITY IS INFRINGING MAY BE SUBJECT TO LIABILITY OR DAMAGES. DO NOT MAKE FALSE CLAIMS OF COPYRIGHT INFRINGEMENT.
Should you desire to review the full Bill Text of the Digital Millenium Copyright Act (“DMCA”), you may click here or should you desire to review a memorandum summarizing each title of the DMCA you may click here. The information contained at the afore-mentioned linked webpages is for your convenience only and we make no promises or representations related to the information contained therein including its accuracy.
Pursuant to 17 U.S.C. §512(k)(1) of the DMCA, this Website is a “Service Provider” and is entitled to certain protections commonly referred to as the “Safe Harbor” provisions.
2.2 Claim of Infringement
If you believe that someone has posted material that infringes your copyright, a notification of a claimed copyright infringement must be provided via email or regular mail to us and must include the following information (the list below comes substantially straight from the statute 17 U.S.C. §512(c)(3); if you do not understand the language please seek independent legal advice):
- 1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- 2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- 3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- 4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- 5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- 6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Please send your Claim of Infringement to email@example.com .FAILURE TO SUBMIT COPYRIGHT INFRINGEMENT NOTIFICATIONS AS DESCRIBED ABOVE WILL RESULT IN NO LEGAL NOTICE OR ACTION ON BEHALF OF MAXYMIZELY, INC.
2.3 Claim of Infringement Counter-Notification
If you have received a Copyright Infringement Notification and you feel that material you have placed online that has been removed following an infringement complaint is in fact not an infringement, you may file a counter-notification. 17 U.S.C. §512 (g)(3) requires that to be valid, the counter-notification must be written and addressed to our designated agent (listed above) and must provide the following information (the list below comes straight from the statute; if you do not understand the language please seek independent advice):
- 1. Identification of the specific URLs of material that the Website has removed or to which the Website has disabled access;
- 2. Your full name, address, telephone number, and email address;
- 3. The statement: "I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which the Website is located, and will accept service of process from the claimant";
- 4. The statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled";
- 5. Signature. A scanned physical signature or a valid electronic signature will be accepted.
Our designated agent will present your counter-notification to the Complaining Party. Once your counter-notification has been delivered, Maxymizely, Inc., is allowed under the provisions of 17 U.S.C. §512 to restore the removed material in no less than 10, nor more than 14, business days, unless the Complaining Party notifies us that it has filed an action seeking a court order to restrain you, the subscriber, from engaging in infringing activity related to the material on Maxymizely Inc. system or network.
Please note that when we forward the counter-notification to the Complaining Party, it includes your personal information. By submitting a Counter-Notification, you consent to having your information revealed in this way.
MAXYMIZELY, INC. IS NOT REQUIRED TO RESPOND TO COUNTER-NOTIFICATIONS THAT DO NOT MEET THE REQUIREMENTS ABOVE.
2.4 Claim of Infringement Retractions
In the event that after you submit a Copyright Infringement Notification, you realize that you have either misidentified content, failed to comply with the requirements of the DMCA or that you simply changed your mind, you may retract your Copyright Infringement Notification by sending us a Notification of Retraction with all of the following:
- 1. A statement indicating that you are retracting your Copyright Infringement Notification;
- 2. The complete and specific URL of the material in question;
- 3. An electronic signature; and
- 4. A copy of your original Copyright Infringement Notification.
2.5 Claim of Infringement Retractions
This Website terminates the account(s) of any repeat copyright infringer, when appropriate and maintains a Repeat Infringer Policy pursuant to 17 U.S.C. § 512(i).
THESE COPYRIGHT INFRINGEMENT NOTIFICATION INSTRUCTIONS MAY BE AND SHALL BE MODIFIED FROM TIME TO TIME WITHOUT NOTICE. YOU ARE SOLELY RESPONSIBLE FOR REGULARLY REVIEWING THESE COPYRIGHT NOTIFICATION INSTRUCTIONS.
OUR COPYRIGHT INFRINGEMENT AGENT IS NOT ASSOCIATED WITH THIS WEBSITE OR THE LEGAL ENTITY THAT CONTROLS THIS WEBSITE. DO NOT SEND ANY OTHER INFORMATION OR MATERIAL TO OUR DMCA AGENT.
We are committed to protecting and respecting your privacy and we make it our highest priority to safeguard the confidentiality of any and all personal details you provide to us. As a visitor to our website you have the right to know and understand our information privacy practices prior to providing Maxymizely, Inc. with any of your personal details.
3.1 Information Collection and Use
If you submit a request for documentation or further information on our site, we require that you provide certain information, including your name, address, phone number, and company name. We use this information as necessary to fulfill your request and to contact you.
We may collect information about your computer, including your referring URLs and access times. We use such information for system administration and to analyze trends. This is statistical data about our users’ browsing actions and patterns, and does not identify any individual.
One of the biggest challenges of designing a great website is that you rarely get to meet the customers. At Maxymizely we help brands improve the way they serve customers online.
Maxymizely is a new appeared expert in analytical, anti-fraud, and fingerprint solutions. Our technology uses testing methodologies along with personalization to help the people who run those sites design and improve their online experience.
To make websites more aware of your needs when browsing their site, cookies are used to distinguish you from other users by assigning you an ID. A cookie is a small file containing a combination of letters and numbers that is stored on your computer by your web browser and is a key to how most web sites work. Maxymizely never shares data or observations with anyone outside of the website owner and the data is used at an aggregated level so it does not and is never used to identify you. You can find below more information about each individual cookie and how to recognize them here.
3.3 Personal Information
We may collect the following data (“Personal Information”) about you: any information that you provide by filling in forms on our website. This includes information provided by you if downloading material or requesting further services.
If you contact us, we may keep a record of that correspondence.
3.4 Use of Information
3.5 Data Storage
All Information you provide to us is stored on our secure servers.
3.6 Links to third party websites
3.7 Sharing Information
We do not share any of the information collected through this website.
Contact Information: firstname.lastname@example.org , email@example.com
4.1 Terms of Service
PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT” OR “TERMS OF SERVICE”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY MAXYMIZELY, INC. (“MAXYMIZELY”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITES AND THE SERVICE (EACH AS DEFINED BELOW). BY USING THE SUBSCRIPTION SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
- • “Documentation” means the Integration Guides, Navigation Guides, Reporting Guide; other help information and user documentation regarding the Service that is provided by Maxymizely to Customer in electronic or other form.
- • “Maxymizely Property” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information acquired, created, developed or licensed by Maxymizely prior to or outside the scope of this Agreement and any improvement, modification, extension or other derivative works thereof and all intellectual property rights thereto including without limitation the Service, Documentation, and Aggregate Data. Maxymizely Property excludes Customer data and results.
- • “Service”means Maxymizely’s application analytics, different types of testing, designer's services, and marketing services (including any Maxymizely Property used to provide such service), as hosted by or on behalf of Maxymizely and provided to Customer under this Agreement, as updated from time to time by Maxymizely in its sole discretion.
- • “Sites” means websites operated by Maxymizely that are made accessible to Customer under this Agreement.
- • “User” (further “Customer”) means any subject (a person(s) or company(s)) that exploit(s) the Maxymizely system.
5.1 Service Start Up
Each party will provide the other with reasonable cooperation, assistance, information and access as may be necessary to initiate Customer’s use of the Service. Maxymizely will provide implementation services to Customer to the extent set forth in the Pricing Offer.
5.2 Service Access and Availability
(a) Customer Systems.
Customer is responsible for providing (i) all equipment, subscriptions and credentials necessary for Maxymizely to receive the Customer Data and (ii) all servers, devices, storage, software (other than the Customer’s data), databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service at its facility (collectively, “Customer Systems”). Customer shall ensure that all Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.
(b) Service Access
As part of the implementation process, Customer will identify a primary administrative email address (a login) and password that will be used to set up Customer’s account. Customer may use the administrative login and password to provide permissions for its employee users (each with unique login IDs and passwords). Customer shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Customer. Maxymizely reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to notify Maxymizely immediately upon learning of any unauthorized use of Customer’s account or any other breach of security. From time to time, Maxymizely’s personnel may log in to the Service under Customer’s account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.
5.3 Service Availability
Maxymizely will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. Maxymizely will attempt to notify Customer electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, Maxymizely will not be liable for any failures in the Service or any other problems which are related to (a) the Customer Data or Customer Systems or (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Maxymizely’s facilities or control.
Maxymizely grants Customer a nonexclusive, nontransferable, revocable right during the Service term specified in a Pricing Offer, to (a) access and use the Service as described in Section 5 hereof, solely for Customer’s internal business purposes and (b) download, install and use the Customer’s data in connection with Customer’s authorized use of the Service. The Service is made available to Customer solely as hosted by or on behalf of Maxymizely, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of the Service or any software. Customer’s access and use of the Service shall comply with all other conditions set forth in the Pricing Offer and Documentation. (such as, for example, any requirements regarding data formats, number of permitted users or prohibited uses)
5.5 Service Support
Maxymizely will provide Customer with e-mail support for Customer’s use of the Service. Customer agrees that Maxymizely is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer Systems.
5.6 Professional Services
From time to time, Customer may request and Maxymizely may agree to provide certain custom development, consulting, training or other professional services as mutually agreed to by the parties (“Professional Services”). The terms and conditions of any such arrangement for Professional Services shall be set forth in a separate statement of work executed by the parties that specifically references this Agreement (each, a “Statement of Work”), each of which shall be governed by the terms of this Agreement with the fee set by Maxymizely and agreed by the parties. Unless otherwise agreed to by the parties and set forth in the applicable Statement of Work, all intellectual property, and all rights embodied therein, that are created by Maxymizely during the performance of Professional Services shall be owned solely and exclusively by Maxymizely.
6. Service Restrictions and Customer Obligations
6.1 Service Restrictions
Customer shall not directly or indirectly: (i) use the Service or any of Maxymizely Property or Confidential Information to create any service, software or documentation that performs substantially the same functionality as the Service, (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (iii) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any Maxymizely Property in any service bureau arrangement or otherwise for the benefit of any third party, (iv) adapt, combine, create derivative works of or otherwise modify any Maxymizely Property, or (v) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information it obtains or learns pursuant to this Agreement in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
6.2 Integration restrictions
MAXYMIZELY HIGHLY RECOMMENDS STUDYING THOROUGHLY INTEGRATION GUIDES AND ACCOMPLISHING ONE OF 3 INTEGRATION TYPES SPECIFIC FOR EACH CUSTOMER, STRICTLY FOLLOWING THE STEPS PROVIDED THEREIN. OTHERWISE MAXYMIZELY DOESN’T TAKE RESPONSIBILITY FOR SYSTEM INAPPROPRIATE BEHAVIOR AFTER INTEGRATION OR UNACCOMPLISHED INTEGRATION, UNLESS CUSTOM INTEGRATION TAKES PLACE.
There are 3 types of integration accomplishing:
- 1. One-click integration. Customer shall not directly or indirectly change the integration code received from Maxymizely. Customer shall paste it accurately in the header.
- 2. Oneself integration. (with SDK depending on the platform) Customer shall not directly or indirectly change an integration library received from Maxymizely. Customer shall paste the library accurately in the tag “head” and apply functions of the library according to the corresponding technical manual of the library application.
- 3. Custom integration. Maxymizely takes full responsibility for the operation of Maxymizely’s code integrated on the Customer’s resource according to the Terms of Reference agreed and approved by the parties.
6.3 Unauthorized Use of Service
Customer shall not directly or indirectly: (i) use unique values or a continuous set of values as inputs to event attributes, (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any privacy settings or measures Maxymizely may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run mail list, Listserv, any form of auto-responder or “spam” on the Service; or (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Sites.
6.4 Privacy and Data Protection
7. Pricing, Fees, and Payments
7.1 Pricing Offer
The parties may enter into Pricing Offer pursuant to this Agreement. Each Pricing Offer shall specify the Service to be provided, Service Fees, the term during which the Service is to be provided, invoicing terms and any other terms mutually agreed to by the parties. Maxymizely shall only be responsible to provide the Service identified in a Pricing Offer for the term specified in the Pricing Offer.
7.2 Service Fees
Customer shall pay a fee for the right to use the Service (the “Service Fees”) in the amount and pursuant to the invoicing schedule set forth in the Pricing Offer.
Professional services fee shall be mutually agreed by the parties and set in the Agreement.
After registration at Maxymizely Service, Customer is provided with a trial period of Service usage. This period includes 14-day usage of Service since registration with an account balance 25 000 Monthly Active Users. (the “MAU”)
The trial period is considered as finished on the 15th day since registration or/and if the account balance equals zero. (25 000 MAU have been used by Customer).
Trial period account data of Customer is stored not less than 7 days after the end of the trial period. After the trial period has come to end, the data can be erased at the sole discretion of Maxymizely.
Maxymizely offers Customer 4 types of pricing offers. Customer can purchase Pricing Offer any time after registering. The Pricing Offer becomes activated right after being purchased by Customer.
Maxymizely unilaterally reserves the right to change the pricing policy and a service suite to be provided.
7.3 Payment Terms
Payments shall be made in US dollars as it set forth in the Pricing Offer options, in full without set-off, counterclaim or deduction right after the applicable services are chosen from the Pricing Offer or agreed as Professional Services. Therefore Maxymizely shall receive the set fee before services are provided.
Customer agrees to reimburse Maxymizely for all costs (including attorneys’ fees) incurred by Maxymizely in collecting late payments. In addition to its other rights and remedies, Maxymizely may, at its option, suspend Customer’s access to the Service or terminate this Agreement in the event that Customer is not current in the payment of fees owed to Maxymizely.
All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Maxymizely’s net income. All amounts payable by Customer hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Customer’s payment of such amounts to Maxymizely.
“Confidential Information” means all financial, business, operational, marketing or technical information disclosed by or for a party in relation to this Agreement whether disclosed in tangible, written, oral or electronic form that is of a nature that should reasonably be considered to be confidential and proprietary. Without limitation, (a) the Service, Maxymizely Property and pricing information are Maxymizely’s Confidential Information and (b) all Customer Data (including any PII) shall be deemed Customer’s Confidential Information for purposes of this Section 8. Confidential Information expressly excludes any information (other than PII) to the extent that a recipient can demonstrate such information is (a) already known by it prior to receipt for the disclosing party without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by the recipient without reference to or use of any of the disclosing party’s Confidential Information.
Except for the specific rights expressly granted by this Agreement, the receiving party shall not use, copy or disclose any of the disclosing party’s Confidential Information without disclosing party’s prior written consent. The receiving party shall use the disclosing party’s Confidential Information solely for the purpose of exercising its rights and performing its obligations hereunder. The receiving party shall only disclose Confidential Information to its employees, contractors and agents (“Representatives”) who have a need to know for the purposes of this Agreement and are bound by substantially similar confidentiality obligations and shall use reasonable care to safeguard the disclosing party’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its Representatives, as applicable. Promptly upon the disclosing party’s request at any time, the receiving party shall return all of the disclosing party’s tangible Confidential Information, permanently erase all Confidential Information in electronic form and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Each party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement or otherwise disclose its terms on a confidential basis in connection with any financing transaction or due diligence inquiry.
8.3 Compelled Disclosure
Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
9. Proprietary Rights
9.1 Results and Customer Data
Customer shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Results, Customer Data and Customer Systems. Customer hereby grants Maxymizely a nonexclusive, irrevocable, worldwide, sublicensable, royalty-free right and license to access, use, copy, process and store the Customer Data solely for the purpose of providing the Service. Customer agrees that the Service depends on the availability of the Customer Data. Customer will be solely responsible for all Customer Data collected from end users as a result of Customer’s use of the Service including the accuracy and completeness of such information. Unless otherwise set forth in the Pricing Offer form, Maxymizely shall not have any obligation to store any Customer Data or Results. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Results, Customer Data and Customer Systems.
9.2 Service Feedback
Customer may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedbacks shall be solely owned by Maxymizely (including all intellectual property rights therein and thereto) and shall also be Maxymizely’s Confidential Information. Customer shall and hereby does make all assignments necessary to achieve such ownership.
9.3 Maxymizely Property
Customer to the extent that Maxymizely includes any Maxymizely Property in the Results, then subject to all terms and conditions of this Agreement, Maxymizely agrees to grant Customer (without the right to sublicense) a nonexclusive, nontransferable, revocable, nonsublicensable, royalty-free right and license to use such Maxymizely Property as combined with or embodied in the applicable Results, solely for Customer’s internal business purposes in connection with its use of the Results. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Maxymizely (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service and the Maxymizely Properties.
9.4 General Learning; Aggregate Data
Customer agrees that Maxymizely is free to (i) collect, use and create derivative works of data regarding Service usage and performance derived from the Results; (ii) aggregate such data with other data to create compilations and analysis of such data (the “Aggregated Data”); and (iii) use, copy, modify, create derivative works of, publish and disclose such Aggregated Data in a manner that does not directly or indirectly identify Customer or any individual person. Maxymizely shall own all right, title and interest to the Aggregated Data and any derivative works thereof. In addition, Maxymizely shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer).
10. Warranties and Disclaimers
10.1 Customer Data
Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data and PII as may be necessary to permit the use contemplated under this Agreement.
Maxymizely represents and warrants to Customer that the Service will be provided in a professional manner in accordance with the terms of this Agreement and the Documentation. Any warranty claim under this Section 10.2 must be made in writing within ten (10) days after performance of the portion of the Services giving rise to the claim. Maxymizely’s sole liability and Customer’s exclusive right and remedy for a breach of such warranty is for Maxymizely to correct or re-perform the nonconforming Service.
EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS SECTION 10, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF, ITS AFFILIATES AND THEIR SUPPLIERS) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, MAXYMIZELY MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE.
11.1 Maxymizely Infringement Indemnity
Except as provided below, Maxymizely agrees to (a) defend Customer against any allegation demand, claim, action, proceeding or suit (each, a “Claim”) by a third party that Customer’s authorized use of the Service infringes any US patent or copyright or misappropriates any trade secret of such third party and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees, “Loss(es)”) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim; provided, that (i) Customer promptly provides Maxymizely with a written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Maxymizely shall have sole control and authority to defend, settle or compromise such Claim. If the Service becomes or, in Maxymizely’s opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, Maxymizely may, at its option (1) obtain for Customer the right to continue using the Service or (2) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Maxymizely, then it may terminate this Agreement upon written notice to Customer and refund to Customer any unused prepaid Service Fees, pro-rated for the remainder of the prepaid period. Maxymizely shall have no liability or obligation to Customer hereunder with respect to any Claim or Loss to the extent based upon (a) any unauthorized use of the Service, (b) any modification or combination of the Service with data, software, hardware, or systems not provided by Maxymizely, (c) any portion of the Service that implements Customer’s specific requirements, (d) Customer’s continuing allegedly infringing activity after being notified to cease use as provided for herein or (e) Customer’s continuing use of any version of the Maxymizely Properties after being provided modifications that would have avoided the alleged infringement. The foregoing states the sole and exclusive liability of Maxymizely, and Customer’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.
11.2 Customer Indemnity
Customer agrees to (i) defend Maxymizely against any Claim by a third party that results from or arises out of (a) any breach by Customer of any of its obligations in Section 6.4 hereof, (b) any breach by Customer of its representations and warranties set forth in Section 10.1 hereof, or (c) any violation of any third party’s (including any of Customer’s end users) privacy right or PII arising out of Customer’s use of the Service; and (ii) indemnify Maxymizely for any Losses awarded by a court of competent jurisdiction or agreed to as part of a monetary settlement and arising out of such Claim; provided, that (i) Maxymizely promptly provides Customers with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Customer shall have sole control and authority to defend, settle or compromise such Claim.
12. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF OR DAMAGE TO DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, PRICING OFFER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE TOTAL OF THE AMOUNTS PAID TO IT OR THE TOTAL OF THE AMOUNTS PAID AND PAYABLE HEREUNDER (IN THE CASE OF CUSTOMER) DURING THE THEN CURRENT TERM OF THE PRICING OFFER FORM GIVING RISE TO THE CLAIM. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY BREACH OF CONFIDENTIALITY OR PROPRIETARY RIGHTS OR FOR COST OF DEFENSE OR LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
13. Term and Termination
13.1 Term of Agreement
This Agreement shall commence on the Effective Date and continue in effect thereafter until the later of (i) such time as a party provides forteen (14) calendar days prior written notice of termination to the other party if there is no Pricing Offer (s) then in effect or (ii) if there is one or more existing Pricing Offer (s) then in effect, upon the expiration of the last to expire of such existing Pricing Offer.
13.2 Term of Pricing Offer
Such a term of each Pricing Offer is the term indicated in the Pricing Offer. (the “Primary Term”) Pricing Offer shall not be a subject to termination except as provided in Section 13.3 hereof.
13.3 Termination of Pricing Offer Form
A Pricing Offer form may be earlier terminated by either party (a) if the other party materially breaches a material term of this Agreement or the Pricing Offer form and fails to cure such breach within thirty (30) days after receiving a written notice of such breach from the other party, or (b) immediately upon a written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
Pricing Offer is considered inactive if its balance has not been changing for one hundred eighty (180) days.
13.4 Effects of Termination
Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement shall survive, confidentiality, proprietary rights provisions, warranties and disclaimers), indemnification, limitation of liability, and general provisions shall survive. Maxymizely has no obligation to retain any Customer Data or Results after the Term and will destroy all Customer Data and Results in its possession within one hundred eighty (180) days Maxymizely after the end of the Term; provided, upon Enterprise Customer’s written request received within thirty (30) days after termination, Maxymizely will deliver to Enterprise Customer a copy of the Customer Data then currently stored by Maxymizely (in the same format maintained by Maxymizely).
14. General Provisions
14.1 Entire Agreement
This Agreement (including the Billing Plan and all Statements of Work) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under this Agreement. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any use of the terms “include,” “included” or “including” shall also be deemed to mean “but not limited to” or “without limitation.”
14.2 Governing Law and Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of the state of California, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Except with respect to claims for injunctive or other equitable relief, which may be brought at any time before any court of competent jurisdiction, in the event of any dispute arising from or relating to the subject matter of this Agreement, the senior executive officers of the parties shall use good faith efforts to attempt to amicably resolve the dispute within thirty (30) day period. In the event the parties are unable to amicably resolve the dispute within such thirty (30) day period, the dispute shall be finally settled by arbitration in California, USA, in accordance with the American Arbitration Association Rules and Procedures then in effect, by a single arbitrator selected in accordance with said AAA rules. Judgment upon the award so rendered may be entered in a court having jurisdiction. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
14.3 Compliance with Laws
Each party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, which may be available at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 8 (Confidentiality) or 9 (Proprietary Rights) or the scope of any license granted hereunder, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
14.5 Force Majeure
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
Maxymizely will not use Customer’s trademarks, service marks and logos (“Customer Marks”) in press releases or as a testimonial without obtaining Customer’s prior written approval. Customer hereby consents to inclusion of its name and logos in customer lists that may be published as part of Maxymizely’s marketing and promotional efforts.
You agree that Maxymizely can provide disclosures and notices regarding the Service to you by posting such disclosures and notices on our website, or emailing them to the email address listed in your Maxymizely account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered.
Except as expressly provided herein, this Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent. However, without consent, Maxymizely may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any assignment in violation of this Section 14.8 shall be deemed null and void ab initio. Maxymizely may use contractors and other third party service providers in performing the Service provided that Maxymizely shall be liable for the acts and omissions of its subcontractors to the same extent as for its own acts and omissions. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
14.9 Independent Contractors
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
This Agreement may be executed in counterparts, which, taken together, will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic means or in writing shall be sufficient to bind the parties to the terms and conditions of this Agreement.