Myplanet Q Terms of Service
These Myplanet
Terms of Services ("Agreement") is a legal agreement entered into by Myplanet
Internet Solutions LTD. ("Myplanet") and the entity executing this Agreement
("You"). This agreement governs Your use of the Myplanet Q digital marketing
assistant product ("Service"). BY CLICK THE "I ACCEPT" BUTTON, COMPLETING THE
REGISTRATION PROCESS, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE
REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND
BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. THIS AGREEMENT INCLUDES ANY
FORMS, POLICIES OR EXHIBITS REFERENCED HEREIN. In consideration of the
foregoing, the parties agree as follows:
1. DEFINITIONS
1.1
"Account"
refers to the billing account for the Service.
1.2
"Add-On"
means integrations, applications and other add-ons that are used with the
Services.
1.3
"Affiliate"
means any entity controlled by, in control of, or is under common control with
a party to this Agreement, where "control" means either the power to direct the
management or affairs of such entity or ownership of 50% or more of the voting
securities of such entity.
1.4
"Aggregate/Anonymous Data"
means (i) data generated by aggregating Customer Data with other data so that
results are non-personally identifiable with respect to Customer or its
Visitors and (ii) anonymous learnings, logs and data regarding use of the
Service.
1.5
"Authorized User"
means Customer"s employees, contractors, consultant or agencies who are acting
for Customer"s benefit and on its behalf.
1.6
"Confidential Information"
means code, inventions, know-how, product plans, technical and financial
information exchanged under this Agreement, that is identified as confidential
at the time of disclosure or should be reasonably be considered confidential
based on the circumstances surrounding the disclosure and nature of the
information disclosed.
1.7
"Content"
means text, images, videos or other content for the Customer Property that the
Customer selects for use with the Service. This Content becomes public on the
Customer Properties, so Customer should only provide Content tat it wishes
other to see.
1.8
"Customer Data"
means (i) Content; (ii) Submitted Data; (iii) Visitor Data; and (iv) any other
Customer Data specified.
1.9
"Customer Property or Properties"
means (i) Customer Sites; (ii) Customer Apps; or (iii) other types of platforms
or properties (as may be supported by the Service) specified in the applicable
operation of the Service.
1.10
"Customer Sites"
means the web domains and subdomains expressly identified in the operation of
the Service.
1.11
"Documentation" means the
documentation and other related materials, or any portion thereof, regardless of
its form or medium, pertaining to the Service provided or made available to you
by Myplanet, and shall include any condensed form of the documentation, and any
other work derived therefrom.
1.12
"Intellectual Property Rights"
means any right, claim or protection existing from time to time in a specific
jurisdiction, whether registered or not, and whether existing under law, equity
or under any other theory including, without limitation, under any patent law
or other invention or discovery law, copyright law, performance or moral rights
law, design law, trade-secret law, confidential information law (including
breach of confidence), trade-mark law, trade-name law, passing off, unfair
competition law or other similar laws, and includes legislation or regulation
by competent governmental authorities, administrative decisions and judicial
decisions under common law or equity, and for greater certainty includes where
applicable the right to file any applications to claim that right, claim or
protection, and the right to claim for the same the priority rights derived
from any applications filed under any treaty, convention, or any domestic laws
of a country in which a prior application is file.
1.13
"Myplanet Code"
means the code developed and provided by Myplanet to the Customer for use in
connection with the Service, which may include Myplanet"s JavaScript code (for
Customer sites), Add-Ons or other code developed and provided by Myplanet.
1.14
"Myplanet Service" means
the specific, proprietary, Software-as-a-Service product of Myplanet specified
in Customer"s order form, including any related Myplanet code and
Documentation." "Myplanet Service"
expressly excludes any and all third party products.
1.15
"Myplanet Technology" means
the Myplanet Services, any and all related or underlying Documentation,
Technology, Code, Know-how, Logos and Templates, anything delivered as part of
Support or Other Services, any updates, modifications or derivative works of
any of the foregoing, including as may incorporate any Feedback.
1.16
"Processing Software"
means the Myplanet server-side software and any upgrades, which analyzes
customer data and generates insights or reports.
1.17
"Privacy Policy"
means the privacy policy on a property.
1.18
"Profile"
means the collection of settings that together determine the information to be
included in, or excluded from, a particular report.
1.19
"Regulated Data" means: (i) any personally identifiable information (other than
information about Authorized Users necessary to create user
accounts); (ii) any patient, medical or other protected or regulated
health information (including HIPAA-regulated data); or (iii) any
government IDs, financial information (including bank account or payment card
numbers) or any other information subject to regulation or protection under
specific laws or regulations (including data covered under the
Gramm-Leach-Bliley Act or related rules or regulations).
1.20
"Report"
means the resulting analysis shown by the Service for a given Profile.
1.21
"Scope of Use" means the usage limits or other scope of use descriptions for the
Service included in the applicable Order Form or Documentation. These include
any numerical limits on Visitors or Authorized Users, descriptions of product
feature levels and names or numerical limits for Customer Properties.
1.22
"Servers"
means the servers controlled by Myplanet on which the processing software and
customer data are stored.
1.23
"Software"
means the Myplanet Service and processing software.
1.24
"Submitted Data" means data uploaded, inputted or otherwise submitted by Customer to the Service,
including Third Party Content.
1.25
"Term" means
the term for the subscription to the applicable Service, as specified on
Customer"s order form(s).
1.26
"Third Party Content" means content, data or other materials that Customer provides to the Service
from its third-party data providers, including through Add-Ons used by
Customer.
1.27
"Third Party Product" means any Add-On, applications, integrations, software, code, online
services, systems and other products not developed by Myplanet.
1.28
"Visitor" means any end user of a Customer Property.
1.29
"Visitor Data" means the data concerning the characteristics and activities of Visitors
on the Customer Properties collected for Customer by the Service, including any
such data specified in the Service-Specific Terms.
The words "include", "includes" and "including" mean
"including but not limited to".
2. Account REGISTRATION, USAGE
Customer and its Authorized Users may need to register for an
account with the Service in order to place orders or to access or receive
Service. Account information must be accurate, current and complete, and will
be governed by Myplanet"s Privacy Policy (currently available at https://www.myplanet.com/article/privacy). Customer agrees to keep this information up-to-date so that Myplanet
may send notices, statements and other information by email or through
Customer"s account. Customer must ensure that any user IDs, passwords and other
access credentials (such as API tokens) for the Service are kept strictly
confidential and not shared with any unauthorized person. If any Authorized
User stops working for Customer, Customer must immediately terminate that
person"s access to its account and any Service. Customer will be responsible
for any and all actions taken using its and its users" accounts, passwords or
access credentials. Customer must notify Myplanet immediately of any breach of
security or unauthorized use of its account. Accounts are granted to specific
Customers and must not be shared with others.
3. RIGHTS OF USE
3.1
Use of Myplanet Services.
Subject to all terms and conditions of this Agreement, Myplanet grants Customer
a worldwide, non-exclusive, non-transferable, non-sublicensable right and
license during the applicable Subscription Term to access and use the Service
designated on Customer"s Order Form solely for Customer"s internal business purposes,
but only in accordance with this Agreement (including without limitation any
applicable Service-Specific Terms), the Documentation, and all applicable Scope
of Use descriptions. Where specified in the Service-Specific Terms, the Service
may require installation of Myplanet Code on Customer Properties. In such
cases, subject to the same conditions above, the rights granted in this Section
further include the right to install and use the relevant Myplanet Code on the
specified Customer Properties and, in the case of Customer Apps, to distribute
the installed Myplanet Code with Customer Apps.
3.2
Use by Others.
Customer may permit its Authorized Users to use the Service provided their use
is for Customer"s benefit only and remains in compliance with this Agreement.
Customer will be responsible and liable for all Authorized Users" use and
access and their compliance with the terms and conditions herein. Use by all
Authorized Users in aggregate will count towards applicable Scope of Use
restrictions.
3.3
General Restrictions.
Customer must not (and must not allow any third party to): (i) rent, lease,
copy, transfer, sublicense or provide access to the Service to a third party
(except Authorized Users as specifically authorized above); (ii) incorporate
the Service (or any portion thereof) into, or use it with or to provide, any
site, product or service, other than on Customer Properties owned-and-operated
by Customer and as specifically permitted above; (iii) use the Service (or any
portion thereof) for time sharing purposes or for a third party"s benefit; (iv)
publicly disseminate information regarding the performance of the Service
(which is deemed Myplanet Confidential Information); (v) modify or create a
derivative work of the Service or any portion thereof; (vi) reverse engineer,
disassemble, decompile, translate, or otherwise seek to obtain or derive the
source code, underlying ideas, algorithms, file formats or non-public APIs to
any Service (including Myplanet Code), except to the extent expressly permitted
by applicable law and then only upon advance notice to Myplanet; (vii) break or
circumvent any security measures or rate limits for Myplanet Services;(viii)
distribute any portion of the Service other than the Myplanet Code installed in
Customer Apps as specifically permitted above; or (ix) remove or obscure any
proprietary or other notices contained in the Service including in any reports
or output obtained from the Service.
3.4
Beta Releases and Free Access Subscriptions. Myplanet
may provide Customer with a Myplanet Service or Myplanet Code for free or on a
trial basis (a "Free Access Subscription") or with "alpha", "beta" or other
early-stage Myplanet Services, Myplanet Code, integrations or features ("Beta
Releases"). This Section will apply to any Free Access Subscription or Beta
Release (even if a Beta Release is provided for a fee or counts towards
Customer"s Scope of Use allocations) and supersedes any contrary provision in
this Agreement. Myplanet may use good faith efforts in its discretion to assist
Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and
without limiting the other disclaimers and limitations in this Agreement,
CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED
ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY, SUPPORT,
MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO
BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY
NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND
OTHER PROBLEMS FOR WHICH MYPLANET WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE
OF A BETA RELEASE IS AT CUSTOMER"S SOLE RISK. Myplanet makes no promises that
future versions of a Beta Release will be released or will be available under the
same commercial or other terms. Myplanet may terminate Customer"s right to use
any Free Access Subscription or Beta Release at any time for any reason or no
reason in Myplanet"s sole discretion, without liability.
4. CUSTOMER DATA
4.1
Rights in Customer Data. As between the parties, Customer retains
all right, title and interest (including any intellectual property rights) in
and to the Customer Data, all Customer Properties and all content contained
therein (excluding any Myplanet Technology). Customer hereby grants Myplanet a
non-exclusive, worldwide, royalty-free right and license to collect, use, copy,
store, transmit, modify and create derivative works of the Customer Data solely
to the extent necessary to provide the Service and related services to Customer
and as otherwise provided below. For Content, this includes the right to
publicly display and perform Content and the Customer Properties (including
derivative works and modifications) as directed by Customer through the
Service.
4.2
Aggregate/Anonymous Data. Customer agrees that Myplanet will have
the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the
contrary herein, the parties agree that Aggregate/Anonymous Data is Myplanet
Technology, which Myplanet may use for any business purpose during or after the
term of this Agreement (including without limitation to develop and improve
Myplanet"s products and services and to create and distribute reports and other
materials). Myplanet will not distribute Aggregate/Anonymous Data in a manner
that personally identifies Customer or its Visitors.
4.3
Security. Myplanet agrees to maintain technical and
organizational measures designed to secure its systems from unauthorized
access, use or disclosure. These measures will include: (i) storing Customer
Data on servers located in a physically secured location and (ii) using
firewalls, access controls and similar security technology designed to protect
Customer Data from unauthorized disclosure. Myplanet takes no responsibility
and assumes no liability for any Customer Data other than its express security
obligations in this Section.
4.4
Storage. Myplanet does not provide an archiving service.
During the Subscription Term, Customer acknowledges that Myplanet may delete
Content no longer in active use. Myplanet expressly disclaims all other
obligations with respect to storage. Additional storage terms may be specified
in the applicable Service-Specific Terms.
5. CUSTOMER OBLIGATIONS
Customer
agrees to: (i) maintain a legally-adequate privacy policy on its Customer Properties
and provide all required disclosures to its Visitors; (ii) obtain all necessary
rights, releases and consents to allow Customer Data to be collected, used and
disclosed in the manner contemplated by this Agreement and to grant Myplanet
the rights herein; (iii) not submit, collect or use any Regulated Data to or
with the Service (including from Third Party Products) except where expressly
permitted by the Service-Specific Terms; (v) comply with any third party terms
applicable to any Customer Apps (such as app store terms) and to Third Party
Products used in connection with the Service; and (vi) not take any action that
would cause Myplanet, the Service or the Myplanet Code to become subject to any
third party terms (including open source license terms). Customer represents
and warrants that its Customer Properties and the collection, use and
disclosure of Customer Data will not violate third party rights, including
intellectual property, privacy and publicity rights. If Customer receives any
take down requests or infringement notices related to Customer Data or its use
of Third Party Products, it must promptly stop using these items with the
Services and notify Myplanet. Reseller
and/or Myplanet in accordance with the Reseller Supply Agreement, subject to
your customary security protocols.
6. SERVICES
Myplanet provides Customers with
email-based support via support@askq.io. Additional support services may be available to Customer upon
payment of applicable fees (if any), as specified in Customer"s Order Form. Any
support services are subject to this Agreement and Myplanet"s applicable
support policies. Myplanet may also provide onboarding, deployment and other
services under this Agreement. The scope, pricing and other terms for these
additional services will be set forth in an Order Form, Order Form exhibit or
other document referencing this Agreement. Customer may use anything delivered
as part of these additional services internally during its Subscription Term to
support its authorized use of the Myplanet Service, subject to the restrictions
in Section 4 (Use Rights) above applicable to the Service itself. Myplanet"s
ability to deliver services will depend on Customer"s reasonable and timely
cooperation and the accuracy and completeness of any information from Customer
needed to deliver the services. For avoidance of doubt, Customer retains
ownership of any Confidential Information it provides to Myplanet.
7. Fees and payment
Customer agrees to
pay all fees in U.S. dollars within thirty (30) days of the invoice date,
unless a different currency or payment period is specified in the applicable
Order Form. Myplanet"s fees are exclusive of all taxes, and Customer must pay
any applicable sales, use, VAT, GST, excise, withholding or similar taxes or
levies, whether domestic or foreign, other than taxes based on the income of Myplanet.
Customer will make tax payments to Myplanet to the extent amounts are included
in Myplanet"s invoices. Some customers may have the option to pay by credit
card. If Customer is paying by credit card, it authorizes Myplanet to charge
fees and other amounts automatically to Customer"s credit card without invoice.
Unless otherwise specified in an Order Form or Service-Specific Term, such
charges typically occur monthly in advance, though overage fees (if any) may be
charged in arrears. Payments are non-refundable and non-creditable and payment obligations
non-cancellable. Late payments may be subject to a service charge equal to the
lesser of 1.5% per month of the amount due or the maximum amount allowed by
law.
8. TERM AND TERMINATION
8.1
Term. This Agreement is effective until all Subscription
Terms for the Myplanet Service(s) have expired or are terminated as expressly
permitted herein.
8.2
Subscription Term and Renewals. By placing an Order Form for purchase of
a Myplanet Service, Customer is agreeing to pay applicable fees for the entire
Subscription Term. Customer cannot cancel or terminate a Subscription Term
except as expressly permitted by Section 9.4 (Termination for Cause) or a
Service-Specific Term. Each Subscription Term will automatically renew for
additional successive twelve-month periods unless: (i) otherwise stated on the
applicable Order Form or (ii) either party gives written notice of non-renewal
at least thirty (30) days before the end of the then-current Subscription Term.
If no subscription start date is specified on the applicable Order Form, the
subscription starts when Customer first obtains access to the Service. Pricing
for any Subscription Term renewal, new Order Form or Order Form change will be
at Myplanet"s then-applicable rates.
8.3
Suspension of Service. Myplanet may suspend Customer"s access to
the Service(s) if: (i) Customer"s account is overdue or (ii) Customer has
exceeded its Scope of Use limits. Myplanet may also suspend Customer"s access
to the Myplanet Service(s), remove Customer Data or disable Third Party
Products if it determines that: (a) Customer has breached Sections 4 (Use
Rights) or 6 (Customer Obligations) or (b) suspension is necessary to prevent
harm or liability to other customers or third parties or to preserve the
security, stability, availability or integrity of the Service. Myplanet will
have no liability for taking action as permitted above. For avoidance of doubt,
Customer will remain responsible for payment of fees during any suspension
period. However, unless this Agreement has been terminated, Myplanet will
cooperate with Customer to restore access to the Myplanet Service once it
verifies that Customer has resolved the condition requiring suspension.
8.4
Termination for Cause. Either party may terminate this
Agreement, including any related Order Form, if the other party: (i) fails to
cure any material breach of this Agreement (including a failure to pay fees)
within thirty (30) days after written notice detailing the breach; (ii) ceases
operation without a successor; or (iii) seeks protection under any bankruptcy,
receivership, trust deed, creditors" arrangement, composition or comparable
proceeding, or if any such proceeding is instituted against that party (and not
dismissed within sixty (60) days thereafter). Myplanet may also terminate this
Agreement or any related Order Forms immediately if Customer breaches Sections
4 (Use Rights) or 6 (Customer Obligations) or for repeated violations of this
Agreement.
8.5
Effect of Termination. Upon any expiration or termination of
this Agreement or an Order Form: (i) Customer"s license rights shall terminate
and it must immediately cease use of the applicable Myplanet Service(s)
(including any related Myplanet Technology), cease distributing any Myplanet
Code installed on its Customer Properties, and delete (or, at Myplanet"s
request, return) any and all copies of the Myplanet Code, any Myplanet
documentation, passwords or access codes and any other Myplanet Confidential
Information in Customer"s possession, custody or control and (ii) Customer"s
right to access any Customer Data in the applicable Myplanet Service will cease
and Myplanet may delete any such data in its possession at any time. If Myplanet
terminates this Agreement for cause as provided in Section 9.4 (Termination for
Cause), any payments for the remaining portion of the Subscription Term will
become due and must be paid immediately by Customer. Except where this
Agreement specifies an exclusive remedy, all remedies under this Agreement,
including termination or suspension, are cumulative and not exclusive of any
other rights or remedies that may be available to a party.
8.6
Survival. The following Sections survive any expiration or
termination of this Agreement: 2 (Definitions); 3 (Account Registration and
Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access
Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data);
8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information);
11 (Myplanet Technology); 12 (Indemnification); 13 (Disclaimers); 14
(Limitations of Liability); 15 (Third-Party Products and Integrations); and 16
(General).
9. CONFIDENTIAL INFORMATION
9.1
Obligation
of Confidentiality. Each party (as the receiving party) must: (i)
hold in confidence and not disclose the other party"s Confidential Information
to third parties except as permitted by this Agreement; and (ii) use the other
party"s Confidential Information only to fulfill its obligations and exercise
its rights under this Agreement. Each party may share the other party"s
Confidential Information with its employees, agents or contractors having a
legitimate need to know (which, for Myplanet, includes the subcontractors
referenced in Section 16.4), provided that such party remains responsible for
any recipient"s compliance with the terms of this Section 10 and these
recipients are bound to confidentiality obligations no less protective than
this Section.
9.2
Exclusions. These
confidentiality obligations do not apply to (and Confidential Information does
not include) information that: (i) is or becomes public knowledge through no
fault of the receiving party; (ii) was known by the receiving party prior to
receipt of the Confidential Information; (iii) is rightfully obtained by the
receiving party from a third party without breach of any confidentiality
obligation; or (iv) is independently developed by the receiving party without
using the disclosing party"s Confidential Information. A party may also
disclose the other party"s Confidential Information to the extent required by
law or court order, provided it gives advance notice (if permitted by law) and
cooperates in any effort by the other party to obtain confidential treatment
for the information.
9.3
Remedies. The
parties acknowledge that disclosure of Confidential Information may cause
substantial harm for which damages alone may be an insufficient remedy, and so
upon breach of this Section each party is entitled to seek appropriate
equitable relief in addition to any other remedies it may have at law.
10. MYPLANET TECHNOLOGY
10.1
Ownership and Updates.
This is a subscription agreement for access to and use of the Service. Customer
acknowledges that it is obtaining only a limited right to use the Service and
that irrespective of any use of the words "purchase", "sale" or similar terms,
no ownership rights are transferred to Customer under this Agreement. Customer
agrees that Myplanet (or its suppliers) retains all rights, title and interest
(including all intellectual property rights) in and to all Myplanet Technology
(which is deemed Myplanet"s Confidential Information) and reserves any licenses
not specifically granted herein. Other than the Myplanet Code, the Service is
offered as an on-line, hosted product. Accordingly, Customer acknowledges and
agrees that it has no right to obtain a copy of the software behind any
Myplanet Service and that Myplanet at its option may make updates, bug fixes,
modifications or improvements to the Service from time-to-time.
10.2
Feedback.
If Customer elects to provide any suggestions, comments, improvements,
information, ideas or other feedback or related materials to Myplanet
(collectively, "Feedback"), Customer hereby grants Myplanet a worldwide,
perpetual, non-revocable, sublicensable, royalty-free right and license to use,
copy, disclose, license, distribute and exploit any such Feedback in any manner
without any obligation, payment or restriction based on intellectual property
rights or otherwise. Nothing in this Agreement limits Myplanet"s right to
independently use, develop, evaluate or market products, whether incorporating
Feedback or otherwise.
11. INDEMNIFICATION
Customer will indemnify and hold Myplanet harmless from
and against any third-party claims and related costs, damages, liabilities and
expenses (including reasonable attorney"s fees) arising from or pertaining to
any Customer Data, Customer Property (including services or products provided
through such property), or breach or alleged breach of Section 6 (Customer
Obligations). Customer also agrees to defend Myplanet against these claims at Myplanet"s
request, but Myplanet may participate in any claim through counsel of its own
choosing and the parties will reasonably cooperate on any defense. Customer
must not settle any claim without Myplanet"s prior written consent if the
settlement does not fully release Myplanet from liability or would require Myplanet
to admit fault, pay any amounts or take or refrain from taking any action.
12. DISCLAIMERS
ALL MYPLANET TECHNOLOGY AND RELATED SERVICES ARE PROVIDED
"AS IS" AND ON AN "AS AVAILABLE" BASIS. NEITHER MYPLANET NOR ITS SUPPLIERS MAKE
ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT. MYPLANET MAKES NO REPRESENTATION, WARRANTY OR
GUARANTEE THAT MYPLANET TECHNOLOGY WILL MEET CUSTOMER"S REQUIREMENTS OR
EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE OR PRESERVED
WITHOUT LOSS, OR THAT MYPLANET TECHNOLOGY WILL BE TIMELY, SECURE, UNINTERRUPTED
OR ERROR-FREE. MYPLANET DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE
ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND
ITS REASONABLE CONTROL. MYPLANET WILL NOT BE RESPONSIBLE OR LIABLE IN ANY
MANNER FOR ANY CUSTOMER PROPERTIES, THIRD PARTY PRODUCTS, THIRD PARTY CONTENT,
OR NON- MYPLANET SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS,
TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE
ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT,
FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS
AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED
UPON MYPLANET TECHNOLOGY OR MYPLANET"S RELATED SERVICES (INCLUDING CHANGES TO
CUSTOMER PROPERTIES). CUSTOMER ACKNOWLEDGES THAT MYPLANET IS NOT A BUSINESS
ASSOCIATE OR SUBCONTRACTOR (AS THOSE TERMS ARE DEFINED IN THE HEALTH INSURANCE
PORTABILITY AND ACCOUNTABILITY ACT) AND THAT THE MYPLANET SERVICE IS NOT HIPAA
COMPLIANT. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT
NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY
REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE
SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
13. LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW,
IN NO EVENT WILL MYPLANET OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST
OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY,
REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR
CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE
OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MYPLANET"S OR ITS
SUPPLIERS" TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR
PAYABLE BY CUSTOMER TO MYPLANET FOR THE APPLICABLE MYPLANET SERVICE OR RELATED
SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS
SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, MYPLANET"S TOTAL
LIABILITY SHALL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US). NOTWITHSTANDING
THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER
PARTY"S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT
CAUSED BY A PARTY"S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY
NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE
LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 SHALL APPLY TO THE
MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES
THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE
ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS
ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY MYPLANET TECHNOLOGY OR ANY
RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND
TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. GENERAL
14.1
Assignment. This Agreement will bind and inure to the benefit of
each party"s permitted successors and assigns. Neither party may assign this
Agreement without the advance written consent of the other party, except that Myplanet
may assign this Agreement without consent to an affiliate or in connection with
a merger, reorganization, acquisition or other transfer of all or substantially
all of its assets or voting securities. Any attempt to transfer or assign this
Agreement except as expressly authorized under this Section 16.1 will be null
and void.
14.2
Notices. Any notice or communication under this Agreement
must be in writing. Customer must send any notices under this Agreement
(including breach notices) to Myplanet at the following address, legal@askq.io, and include "Attn. Legal Department" in
the subject line. Myplanet may send notices to the e-mail addresses on
Customer"s account or, at Myplanet"s option, to Customer"s last-known postal
address. Myplanet may also provide operational notices regarding the Service or
other business-related notices through conspicuous posting of such notice on Myplanet"s
website or the Service. Each party hereby consents to receipt of electronic
notices. Myplanet is not responsible for any automatic filtering Customer or
its network provider may apply to email notifications.
14.3
Publicity. Unless otherwise specified in the applicable Order
Form, Myplanet may use Customer"s name, logo and marks (including marks on
Customer Properties) to identify Customer as a Myplanet customer on Myplanet"s
website and other marketing materials.
14.4
Subcontractors. Myplanet may use subcontractors and permit them to
exercise the rights granted to Myplanet in order to provide the Service and
related services under this Agreement. These subcontractors may include, for
example, Myplanet"s hosted service and CDN providers. However, subject to all
terms and conditions herein, Myplanet will remain responsible for: (i)
compliance of its subcontractors with the terms of this Agreement; and (ii) the
overall performance of the Myplanet Services if and as required under this
Agreement.
14.5
Subpoenas. Nothing in this Agreement prevents Myplanet from
disclosing Customer Data to the extent required by law, subpoenas, or court
orders, but Myplanet will use commercially reasonable efforts to notify
Customer where permitted to do so.
14.6
Independent Contractors. The parties to this Agreement are
independent contractors, and this Agreement does not create a partnership,
joint venture, employment, franchise, or agency relationship. Neither party has
the power to bind the other or incur obligations on the other party"s behalf
without the other party"s prior written consent.
14.7
Force Majeure. Neither party will be liable for any delay or
failure to perform its obligations under this Agreement (except payment
obligations) if the delay or failure is due to causes beyond its reasonable
control, such as a strike, blockade, war, act of terrorism, riot, natural
disaster, failure or reduction of power or telecommunications or data networks
or services, or government act.
14.8
Export. Customer is responsible for obtaining any required
export or import authorizations for use of the Myplanet Services. Customer
represents and warrants that it, its affiliates, and its Authorized Users are
not on any U.S. government list of prohibited or restricted parties or located
in (or a national of) a country subject to a U.S. government embargo or that
has been designated by the U.S. government as a "terrorist supporting" country.
Customer must not access or use the Myplanet Service in violation of any U.S.
export embargo, prohibition or restriction.
14.9
U.S. Government Rights. If the use of the Service is being acquired by or on
behalf of the U.S. Government or by a U.S. Government prime contractor or
subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for
Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for
non-DOD acquisitions), the Government's rights in the Software, including its
rights to use, modify, reproduce, release, perform, display or disclose the
Software or Documentation, will be subject in all respects to the commercial
license rights and restrictions provided in this Agreement.
14.10
Amendments; Waivers. Myplanet may update or modify this
Agreement (including any Service-Specific Terms, referenced policies and other
documents) from time to time. If Myplanet modifies the Agreement during
Customer"s Subscription Term, the modified version will take effect upon
Customer"s next Subscription Term renewal, except that: (i) changes to the
policies referenced herein (such as the Acceptable Use Policy) will take effect
thirty (30) days from the date of posting; (ii) if Myplanet launches new
products or optional features that require opt-in acceptance of new terms,
those terms will apply upon Customer"s acceptance; and (iii) any updated or
modified Agreement will take effect immediately for Free Access Subscriptions
or if Customer accepts new Order Forms or Order Form changes following the
modification. Customer may be required to click through the updated Agreement
to show acceptance; in any event, continued use of Free Access Subscriptions or
any renewal of a Subscription Term following the update shall constitute
acceptance of the updated Agreement. If Customer does not agree to the updated
Agreement after it takes effect, Customer will no longer have the right to use
the Service. Except as otherwise described in this Section, any modification or
amendment to this Agreement must be made in writing and signed by a duly
authorized representative of each party (each in its discretion). No waiver
will be implied from conduct or failure to enforce or exercise rights under
this Agreement. Waivers must be made in writing and executed by a duly
authorized representative of the waiving party.
14.11
Severability. If any provision of this Agreement is found by any
court of competent jurisdiction to be unenforceable or invalid, that provision
will be limited to the minimum extent necessary so that this Agreement may otherwise
remain in effect.
14.12
No Third Party Rights. Nothing in this Agreement confers on any
third party the right to enforce any provision of this Agreement. Customer
acknowledges that each Order Form only permits use by and for the legal entity
or entities identified in the Order Form and not any affiliated entities.
14.13
Attorneys" Fees and Costs. The substantially prevailing party in any
action to enforce this Agreement will be entitled to recover its reasonable
attorneys" fees and costs for the action.
14.14
Entire Agreement. This Agreement represents the parties"
complete and exclusive understanding relating to the Agreement"s subject
matter. It supersedes all prior or contemporaneous oral or written
communications, proposals and representations with respect to the Myplanet
Technology or any other subject matter covered by this Agreement. The terms of
the United Nations Convention on Contracts for the Sale of Goods do not apply
to this Agreement. The Uniform Computer Information Transactions Act (UCITA)
shall not apply to this Agreement regardless of when or where adopted. Any
terms provided by Customer (including as part of any purchase order or other
business form used by Customer) are for administrative purposes only, and have
no legal effect.
14.15
Governing Law; Jurisdiction and Venue. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
Ontario (without reference to conflicts of laws principles)." The competent courts in the Province of Ontario
shall have non-exclusive jurisdiction over all disputes relating to this
Agreement." The parties irrevocably
attorn and consent to the non-exclusive jurisdiction of those courts."