This Agreement was last updated on March 3, 2020 (“Effective Date”).
2. LEGALLY BINDING AGREEMENT
By accessing the Website or Services, You represent and warrant that You have read and understood, and agree to be bound by these TOU and that You acknowledge the adequacy of consideration of this Agreement. Please review this document carefully, as it is a legally binding document between You and DATA360 BY ACCEPTING THIS AGREEMENT, EITHER THROUGH CLICKING ‘GO’ OR CLICKING A BOX INDICATING ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT EXECUTE AN ORDER FORM OR OTHERWISE ACCEPT THIS AGREEMENT AND MAY NOT USE THE Data360 SERVICES. IF YOU DO NOT AGREE TO THESE TOU, YOU ARE PROHIBITED FROM ACCESSING THE WEBSITE AND THE SERVICES AND MUST EXIT IMMEDIATELY. To the maximum extent permitted and enforceable under applicable law, Data360 reserves the right to modify the terms and conditions of this Agreement at any time, effective upon the posting of an updated version of this Agreement. You are responsible for regularly reviewing this Agreement continued use of the Services after any such changes shall constitute Your consent to such changes. Updates to the TOU will be indicated by the “Effective Date” in the Introduction section of this Agreement. If You do not agree to such modifications and updates, please exit the Website and Services immediately.
The Website and Services are not targeted to, and should not be used by, persons under the age of 18. BY ACCESSING THE WEBSITE OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, ARE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW, and are not barred from accessing the website or services under the laws of any applicable jurisdiction.
4. PRIVACY STATEMENT; CHANGES TO AGREEMENT AND PRIVACY STATEMENT
- Modification to Privacy Statement. DATA360 RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AND/OR THE PRIVACY STATEMENT AT ANY TIME. To the maximum extent permitted and enforceable under applicable law, Data360 reserves the right to modify the terms and conditions of the Privacy Statement at any time, effective upon the posting of an updated version of the Privacy Statement. You are responsible for regularly reviewing the Privacy Statement and continued use of the Services after any such changes shall constitute Your consent to such changes. Notice of any such change will be given by the posting of an updated Privacy Statement or a change notice on the Website. It is Your responsibility to review the Privacy Statement periodically. If at any time You find any unacceptable, You must immediately leave the Website and refrain from using the Website and Services.
Data360 intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws. Data360 reserves the right to seek civil, criminal or injunctive relief, at its sole discretion and without obligation, to enforce this Code.
5. INTELLECTUAL PROPERTY
The Website and all content and materials located thereon, including without limitation any Data360 names and logos (the “Data360 Marks”), the Services, designs, text, graphics and other files, and the selection, arrangement and organization thereof, are the intellectual property of Data360 or its licensors. Except as explicitly provided, neither the Website nor this Agreement grant You any right, title or interest in or to any such content or materials. The Data360 Marks are trademarks or registered trademarks of Data360. Other trademarks, service marks, graphics, logos and domain names appearing on the Website may be the trademarks of third parties. The Website is Copyright © 2004, Data360 Data Corporation, ALL RIGHTS RESERVED.
As Data360 asks others to respect its intellectual property rights, Data360 respects the intellectual property rights of others. You agree that You shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services. Likewise, if You have evidence, know, or have a good faith belief that Your rights or the rights of a third party have been violated and You want Data360 to delete, edit, or disable the material in question, You must provide Data360 with all of the following information:
- a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the material that is claimed to be infringed 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 Data360 to locate the material;
- information reasonably sufficient to permit Data360 to contact You, such as an address, telephone number, and if available, an electronic mail address at which You may be contacted;
- a statement that You have 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; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, You must provide it to Data360’s designated agent at:
The Landmark @ One Market, Suite 300
San Francisco, CA 94105, United States
6. DISCLAIMERS; LIMITATION OF LIABILITY
- NO WARRANTIES ALTHOUGH Data360 TAKES REASONABLE MEASURES TO KEEP THE WEBSITE AND SERVICES ERROR-FREE AND SAFE, YOU ACCESS THEM AT YOUR OWN RISK. Data360, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER Data360 NOR ITS LICENSORS OR SUPPLIERS WARRANT THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SAFE OR SECURE.
- YOUR RESPONSIBILITY FOR DAMAGE YOU AGREE THAT YOUR USE OF THE WEBSITE OR SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD Data360 OR ITS LICENSORS OR SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF THE WEBSITE OR SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE WEBSITE OR SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
- YOUR RESPONSIBILITY FOR YOUR ACTIONS YOU AGREE AND UNDERSTAND THAT YOU MAY BE HELD LEGALLY RESPONSIBLE FOR DAMAGES SUFFERED BY OTHER WEBSITE VISITORS OR THIRD PARTIES AS THE RESULT OF YOUR REMARKS, INFORMATION, FEEDBACK OR OTHER CONTENT POSTED OR MADE AVAILABLE ON THE WEBSITE OR THROUGH THE SERVICES THAT IS DEEMED DEFAMATORY OR OTHERWISE LEGALLY ACTIONABLE.
- LIMITATION OF LIABILITY YOU AGREE THAT NEITHER Data360, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, NOR ITS LICENSORS OR SUPPLIERS, HAVE ANY LIABILITY WHATSOEVER IN CONNECTION WITH YOUR ACCESS OF THE WEBSITE OR THE SERVICES. Data360 IS NOT RESPONSIBLE FOR THE ACTIONS OF THIRD-PARTIES (INCLUDING OTHER WEBSITE VISITORS OR MEMBERS), AND YOU RELEASE Data360, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD-PARTIES. IN THIS REGARD, IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”THE LIABILITY OF Data360, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, AND ITS LICENSORS AND SUPPLIERS, IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL Data360, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO Data360, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, OR ITS LICENSORS AND SUPPLIERS) ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF Data360, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL NOT EXCEED THE GREATER OF $200.00 USD OR THE AMOUNT YOU HAVE PAID US IN THE LAST 12 MONTHS.
- APPLICATION THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATIONS OF LIABILITY BETWEEN YOU AND Data360 OR BETWEEN YOU AND ANY OF Data360’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE, SERVICES, OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
You agree to indemnify and hold Data360, its directors, officers, employees and agents, and its suppliers, licensors, and service providers, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of or in connection with: (1) Your use of the Website or Services; (2) any violation of this Agreement (including, without limitation, the Code); (3) Your violation of any applicable law or the intellectual property rights of any third party. Data360 will have the right, but not the obligation, to participate through counsel of its choice in any defense by You of any Claims as to which You are required to defend, indemnify, or hard harmless Data360. You may not settle any Claims without the prior written consent of the concerned Data360 person or persons.
8. THIRD-PARTY WEBSITES
EXCEPT AS MAY OTHERWISE BE PROVIDED BELOW OR IN A SIGNED AGREEMENT BETWEEN YOU AND Data360, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT OR YOUR ACCESS OF THE WEBSITE OR SERVICES SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) to the extent that either of You or Data360 has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, or You have otherwise violated the Code set forth above, then You and Data360 acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought; and (b) no disputes or claims relating to any transactions You enter into with a third party through the Website may be arbitrated.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes ( the “AAA Consumer Rules”) (collectively the “AAA Rules”). The location of the arbitration shall be in San Francisco, California, and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
10. GOVERNING LAW
This Agreement, including without limitation its construction and enforcement, shall be treated as though it were executed and performed in San Francisco, California, and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles.
To the extent arbitration is not required under this Agreement, THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE OR SERVICES WILL BE THE STATE AND FEDERAL COURTS IN SAN FRANCISCO, CALIFORNIA. IN CONNECTION WITH THIS SECTION, THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE OR SERVICES SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER WEBSITE VISITORS, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by You related in any way to this agreement, the Website or Services be instituted more than one (1) year after the cause of action arose.
- Data360’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Agreement and shall not affect the validity and enforceability of any remaining provisions.
- Neither the course of conduct and/or course of dealing between the parties nor trade practice shall act to modify any provision of this Agreement.
- Data360 may assign its rights and duties under this Agreement to any party at any time without notice to You. Your rights and duties under this Agreement are not assignable by You without written consent of Data360.
- Headings are used for convenience only and are not to be used for meaning or intent.
- This Agreement, along with Your Plan Details, and any other signed writing between You and Data360 regarding the Services, constitutes the entire understanding between You and Data360 and supersedes any prior or contemporaneous communications or provisions on the subject matter. This Agreement cannot be modified, unless in a writing labeled “Modification to TOU”, executed by both You and an officer of Data360.
- Data360 values Your enthusiasm of its Website and Services. If You have any questions, comments, suggestions, or concerns, or if You would like to provide any notice under this Agreement, please contact us via certified mail at:
Attention: Legal Department
913 N. Market St.
Wilmington, DE 19801