BUSINESS TERMS OF SERVICE
These ART19 Business Terms of Service (these “Terms”) contain the terms and conditions that govern your access to and use of the Service Offerings (as defined below) applicable between ART19, Inc. (“ART19,” “we,” “us,” or “our,”) and you or the entity you represent (“you,”). These Terms take effect as of the date listed on an incorporating agreement (this “Agreement”) presented with these terms or, if earlier, when you use any of the Service Offerings (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in these Terms.
1. Use of the Service Offerings
1.1 Generally. You may access and use the Service Offerings in accordance with these Terms. You will adhere to all laws, rules, and regulations applicable to your use of the Service Offerings, including the Acceptable Use Policy and the other Policies as defined in Section 14.
1.2 Your Account.To access the Services, you must create an ART19 account associated with a valid e-mail address. You may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of these Terms, we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and Agreement at any time in accordance with Section 7.
1.3 Support to You. Support related to initial setup of your account and support issues dealing with defects in our Service Offerings are included without additional charge. You shall reimburse us for additional support needs due to your related problems (e.g. encoding PC hardware failure) at a consulting rate of $100 per hour to be charged in quarter hour increments and subject to a minimum ½ hour charge. We will not initiate a support ticket unless so directed by you. Custom development will be billed at a consulting rate of $200 per hour to be charged in quarter hour increments and subject to a minimum ½ hour charge.
1.4 Third Party Content. Third Party Content, such as software applications provided by third parties, may be made available directly to you by other companies or individuals under separate terms and conditions, including separate fees and charges. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk.
1.5 Description of Services. ART19 provides a content management system for organizing and distributing digital media content for access by End Users via Internet connected devices. For purposes of these Terms, ART19 is granting you, a license to use the Service Offerings to organize and distribute content owned or licensed by you (“Your Media") with audio and/or video advertisements (the "Advertisements'', and together with Your Media "Your Content") to be made accessible to End Users over the Internet. The use of the Site to upload, manage, manipulate, distribute, syndicate, integrate Your Content into other systems and provide reports shall be deemed the "Service Offerings" which shall include, without limitation, organizing Your Content, storing Your Content on ART19's servers and making Your Content accessible to end users. ART19 will provide you with players which you at your option may use. Should you use these players, you may not modify them or display them in such a way to remove ART19 Marks.
1.6 Hosting. ART19 will host and serve Your Content as set forth under these Terms. You must give ART19 reasonable notice when you expect unusually high distribution of any of Your Media, so ART19 is able to prepare for increased hardware and bandwidth requirements (provided that any inadvertent failure to do so by you shall not constitute a breach of these Terms). ART19 guarantees less than 4 hours down time per month where Your Media is unavailable to the general Internet public solely as a result of our failure (“Service Availability”). Service interruptions not solely due to our failure, including those caused by third-party Ad Server(s), ART19-planned network maintenance activities, maintenance at or failure of your hardware or software, your local access circuits or cross connects, or their connection to the Internet, or Force Majeure Events (each a “Non-Covered Event”), are excluded from the Service Availability measurement. Where fees for bandwidth apply, we charge for Your Content transferred from us out to the internet. We will encode Your Content using different codecs for different distribution channels. For example, we encode MP3 audio files for distribution via RSS at a 128 kilobits per second bitrate. A typical hour-long podcast episode will have a file size of approximately 60 MB, though very large images and other metadata can increase this size.
1.7 Maintenance and updates. ART19 will use best efforts to provide at least one day prior notice to any planned maintenance activities that will result in the Service Offerings’ unavailability for greater than five minutes.
1.8 Service Availability Credits. Service Availability credits are determined in accordance with the following guidelines: (a) should downtime for the Service Offerings in a given calendar month exceed four (4) hours in aggregate, excluding Non-Covered Events, you shall be entitled to a five percent (5%) reduction in that month’s total monthly usage fees; (b) for each additional complete four hours that the Service Offerings is unavailable, you shall be entitled to a five percent (5%) reduction in that month’s total monthly usage fees, subject to a monthly maximum of 20% credit.
1.9 Service Credit Process.
- Filing Period. Service Availability claims must be submitted to ART19 within seven (7) calendar days of the end of the month in which you believe the credit was earned.
- Required Information. Each claim must be filed with primary contact and include the following information: business name, contact's name and contact information, date and beginning/end time of outage(s), and a brief description of the characteristics of the outage(s).
- Claim Process. You must submit the required information by email to firstname.lastname@example.org. ART19 will use best efforts to review all claims within ten (10) business days of receipt. You will be informed by email whether the appropriate service credit claim will be granted or rejected. If rejected, the notification will specify the basis for rejection.
- Credit Process. Approved Service Availability credits will be applied to the billing cycle following the month in which the claim was approved.
2.1 To the Service Offerings. We may change, discontinue, or deprecate any of the Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings, and if You disagree with such change or discontinuation You may terminate this Agreement upon notice without penalty.
2.2 To the APIs. We may change, discontinue or deprecate any APIs for the Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities). In the event we make any of the aforementioned changes, discontinuations or deprecations, and if You disagree with such, You may terminate this Agreement upon notice without penalty.
3. Security and Data Privacy
3.1 ART19 Security. Without limiting Section 10 or your obligations under Section 4.2, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
4. Your Responsibilities
4.1 Your Content. You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
- compliance of Your Content with the Acceptable Use Policy, the other Policies, and the law;
- any claims relating to Your Content; and
- properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violate such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.
4.2 Other Security and Backup. You are responsible for properly configuring and using the Service Offerings and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content.
4.3 End User Violations. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to these Terms, Your Content or use of the Service Offerings. You are responsible for End Users’ use of Your Content and the Service Offerings. You will ensure that all End Users comply with your obligations under these Terms and that the terms of your agreement with each End User are consistent with these Terms. If you become aware of any violation of your obligations under these Terms by an End User, you will immediately terminate such End User’s access to Your Content and the Service Offerings.
4.4 End User Support. You are responsible for providing customer service (if any) to End Users. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
5. Fees and Payment
5.1. Service Fees. We calculate and bill fees and charges monthly. You will pay us the applicable fees and charges for use of the Service Offerings as described on the ART19 Site using one of the payment methods we support. We will bill you: (i) Fees based upon your daily usage of the Services during the preceding month; and (ii) monthly in arrears for your use of the Services. For monthly fees, we will provide you with the monthly rate for the Services when you order the Services, and will use this rate to calculate the Fees, on a prorated basis, for your daily usage during that month. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the ART19 Site unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services by giving you at least 30 days’ advance notice. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
5.2 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
6. Temporary Suspension
6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:
- your or an End User’s use of or registration for the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) may adversely impact the Service Offerings or the systems or Content of any other ART19 customer, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent;
- you are, or any End User is, in breach of these Terms, including if you are delinquent on your payment obligations for more than 15 days; or
- | you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service Offerings:
- you remain responsible for all fees and charges you have incurred through the date of suspension;
- you remain responsible for any applicable fees and charges for any Service Offerings to which you continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
- you will not be entitled to any Service Availability Credits for any period of suspension; and
- we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in these Terms.
Our right to suspend your or any End User’s right to access or use the Service Offerings is in addition to our right to terminate pursuant to Section 7.2.
7. Term; Termination
7.1. Term. The term will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 7.2.
- Termination for Convenience. You may terminate for any reason by: (i) providing us notice and (ii) closing your account for all Services for which we provide an account closing mechanism. Fees will be prorated as described in Section 5.1. We may terminate for any reason by providing you 30 days advance notice.
- Termination for Cause.
- By Either Party. Either party may terminate for cause upon 30 days advance notice to the other party if there is any material default or breach of these Terms by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
- By Us. We may also terminate immediately upon notice to you (A) for cause, if any act or omission by you or any End User results in a suspension described in Section 6.1, (B) if our relationship with a third party partner who provides software or other technology we use to provide the Service Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, (C) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (D) in order to comply with the law or requests of governmental entities, or (E) if we determine use of the Service Offerings by you or any End Users or our provision of any of the Services to you or any End Users has become impractical or unfeasible for any legal or regulatory reason.
7.3. Effect of Termination.
- Generally. Upon any termination of this Agreement:
- all your rights under these Terms immediately terminate;
- you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
- you will immediately return or, if instructed by us, destroy all ART19 Content in your possession; and
- Sections 4.1, 5.2, 7.3, 8 (except the license granted to you in Section 8.4), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.
- Post-Termination Assistance. Unless we terminate your use of the Service Offerings pursuant to Section 7.2(b), during the 30 days following termination:
- we will not erase any of Your Content as a result of the termination;
- you may retrieve Your Content from the Services only if you have paid any charges for any post-termination use of the Service Offerings and all other amounts due; and
- we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers.
Any additional post-termination assistance from us is subject to mutual agreement by you and us.
8. Proprietary Rights
8.1 Your Content. As between you and us, you or your licensors own all right, title, and interest in and to Your Content. Except as provided in this Section 8, we obtain no rights under these Terms from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Service Offerings to you and any End Users. We may disclose Your Content to provide the Service Offerings to you or any End Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).
8.2 Your Media. You hereby grant ART19 a non-exclusive, non-transferable (except as provided herein), royalty-free, fully paid-up, worldwide right and limited license to use, reproduce, distribute, publicly perform, display, broadcast and transmit Your Media solely to carry out the intentions of these Terms.
8.3 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Your Submissions; (b) you have all rights in Your Content and Your Submissions necessary to grant the rights contemplated by these Terms; and (c) none of Your Content, Your Submissions or End Users’ use of Your Content, Your Submissions or the Services Offerings will violate the Acceptable Use Policy.
8.4 Service Offerings License. As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Service Offerings. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with these Terms; and (ii) copy and use the ART19 Content solely in connection with your permitted use of the Services. Except as provided in this Section 8.4, you obtain no rights under these Terms from us or our licensors to the Service Offerings, including any related intellectual property rights.
8.5 License Restrictions. Neither you nor any End User may use the Service Offerings in any manner or for any purpose other than as expressly permitted by these Terms. Neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service Offerings (except to the extent software included in the Service Offerings are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings, (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings. All licenses granted to you in these Terms are conditional on your continued compliance these Terms, and will immediately and automatically terminate if you do not comply with any term or condition of these Terms.
8.6 Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
8.7 Promotion. You grant us a personal, non-assignable, non-exclusive, limited license to use your name, trademarks, and logo, and up to 3 minutes of your content for demo purposes (with full credit to you) subject to your use guidelines and approval of the content ART19 wishes to use for such purpose, at no cost, solely for promotional and marketing purposes, solely during the duration of this Agreement (and not thereafter), and ART19 grants you a personal, non-assignable, non-exclusive, limited license to use ART19's name, trademarks, and logo at no cost for promotional and marketing purposes to further your business goals during the duration of this Agreement. Each party may use the name and/or logo of the other party in product brochures and financial reports, and on its web site indicating that you are a customer of ART19. You agree that ART19 shall have rights to the data generated by your use of the Service Offerings and ART19 may compile and publish aggregate data reports containing your data and third party data for internal and commercial use; provided that ART19 shall not, at any time, disclose your identity to third-parties.
9.1. General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any End Users’ use of the Service Offerings (including any activities under your ART19 account and use by your employees and personnel); (b) breach of these Terms or violation of applicable law by you or any End User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
9.2. Process. We will promptly notify you of any claim subject to Section 9.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
11. Limitations of Liability
WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
12. Modifications to the Agreement
We may modify these Terms (including any Policies) at any time by posting a revised version on the ART19 Site or by otherwise notifying you in accordance with Section 13.6; provided, however, that we will provide at least 90 days advance notice in accordance with Section 13.6 for adverse changes to any Enterprise Service Agreement. Subject to the 90-day advance notice requirement with respect to adverse changes to Enterprise Service Agreements, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to these Terms, you agree to be bound by the modified terms. It is your responsibility to check the ART19 Site regularly for modifications to these Terms. We last modified these Terms on the date listed at the end of these Terms.
13.1 Confidentiality and Publicity. You may use ART19 Confidential information only in connection with your use of the Service Offerings as permitted under these Terms. You will not disclose ART19 Confidential Information during the Term or at any time during the 5 year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of ART19 Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not misrepresent or embellish the relationship between us and you or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by these Terms.
13.2 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.3 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
13.4 No Third Party Beneficiaries. These Terms does not create any third party beneficiary rights in any individual or entity that is not a party to these Terms.
13.5 Import and Export Compliance. In connection with these Terms, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service Offerings, including your transfer and processing of Your Content and the provision of Your Content to End Users.
- To You. We may provide any notice to you under these Terms by: (i) posting a notice on the ART19 Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the ART19 Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
- To Us. To give us notice under these Terms, you must contact ART19 as follows: (i) by email to email@example.com; or (ii) by personal delivery, overnight courier or registered or certified mail to ART19, Inc., 1999 Harrison Street Suite 2675, Oakland, CA 94612. We may update the email address or address for notices to us by posting a notice on the ART19 Site. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
- Language. All communications and notices to be made or given pursuant to these Terms must be in the English language.
13.7 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.7 will be void. Subject to the foregoing, these Terms will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
13.8 No Waivers. The failure by us to enforce any provision of these Terms will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13.9 Severability. If any portion of these Terms is held to be invalid or unenforceable, the remaining portions of these Terms will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from these Terms but the rest of the Agreement will remain in full force and effect.
13.10 Governing Law; Venue. The laws of the State of California, without reference to conflict of law rules, govern these Terms and any dispute of any sort that might arise between you and us. Any dispute relating in any way to the Service Offerings or these Terms where a party seeks aggregate relief of $7,500 or more will be adjudicated in any state or federal court in Santa Clara County, California. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to these Terms.
13.11 Entire Agreement; English Language. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of these Terms. These Terms supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of these Terms. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of these Terms contain our and our affiliates’ entire obligation regarding the security, privacy and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of these Terms (whether or not it would materially alter these Terms) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Enterprise Service Agreement will control over this document. If we provide a translation of the English language version of these Terms, the English language version of the Agreement will control if there is any conflict.
“Acceptable Use Policy” means the policy currently available at www.art19.com/aup
, as it may be updated by us from time to time.
“API” means an application program interface.
“ART19 Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. ART19 Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. ART19 Confidential Information does not include any information that: (i) is or becomes publicly available without breach of these Terms; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the ART19 Confidential Information.
“ART19 Content” means Content we or any of its affiliates make available in connection with the Services or on the ART19 Site to allow access to and use of the Services, including WSDLs; Documentation; sample code; software libraries; command line tools; and other related technology. ART19 Content does not include the Services.
“ART19 Marks” means any trademarks, service marks, service or trade names, logos, and other designations of ART19 and its affiliates that we may make available to you in connection with these Terms.
“Content” means data, text, audio, video, images or other content.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service Offerings under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own ART19 account, rather than your account.
“GB” 1 GB = 1,073,741,824 bytes.
, as it may be updated by us from time to time.
“Service” means each of the web services made available by us or our affiliates.
“Service Offerings” means the Services (including associated APIs), the ART19 Content, the ART19 Marks, the ART19 Site, and any other product or service provided by us under these Terms. Service Offerings do not include Third Party Content.
“Suggestions” means all suggested improvements to the Service Offerings that you provide to us.
“TB” 1 TB = 1024 GB.
“Term” means the term of these Terms described in Section 7.1.
“Third Party Content” means Content made available to you by any third party on the ART19 Site or in conjunction with the Services.
“Your Content” means Content you or any End User (a) run on the Services, (b) cause to interface with the Services, or (c) upload to the Services under your account or otherwise transfer, process, use or store in connection with your account.
“Your Submissions” means Content that you post or otherwise submit to forums, public pages, or similar community-focused areas of the ART19 Site or the Services.
Last Modified: February 28, 2017