These Ajustee Terms and Conditions, as amended from time to time ("Terms"), are entered into by and between Ajustee, LLC, a California limited liability AJUSTEE with offices at:
1720 West Oceanfront, Unit A, Newport Beach, CA 92663
("Ajustee") and you or the customer identified in an Order Form that references these Terms, as applicable ("Customer", "you"). These Terms and any Order Form that references these Terms are collectively referred to herein as the "Agreement". By accessing or using the Software (as defined below) or any website owned or controlled by Ajustee or clicking a button or checking a box marked "Submit", "I Agree", "I Accept", or something similar, or by otherwise affirmatively manifesting your assent to this Agreement, you signify that you have read, understood, and agrees to be bound by this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
NOW THEREFORE, in consideration of the mutual covenants and agreements in this Agreement, the parties hereby agree as follows:
- Certain Definitions.
"Applicable Laws" means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under this Agreement.
"Customer Inputs" means data, algorithms, methodologies, software code, and other information Customer provides, posts, uploads, publishes, transmits or distributes on or through the Software.
"Effective Date" means: (a) the date on which the parties have mutually executed an Order Form; or (b) the date on which Customer has otherwise completed Onboarding.
"Fees" means the amounts payable by Customer to Ajustee pursuant to this Agreement that are agreed-to during Onboarding.
"Marks" means trade names, trademarks, service marks, trade dress, logos and other rights in indicia.
"Onboarding" means the process by which Customer procures from Ajustee a subscription to use the Software, which may occur via the execution of an Order Form included as part of a self-service sign-up process made available on Ajustee's website.
"Order Form" means a written order form, purchase order, or other similar ordering document mutually agreed-upon by the parties that incorporates these Terms by reference.
"Software" means Ajustee's hosted proprietary software platform.
"Subscription Term" means the subscription period agreed-to during Onboarding, including, without limitation, Beta Terms as defined in Section 5.2.
2. Provision of Software and Documentation.
2.1. License Grant. During the Subscription Term and subject to the Terms (including any user limitations set forth in the Order Form), Ajustee hereby grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, to: (a) access and use the Software solely for Customer's internal use up to the number of concurrent employees or contractors of Customer identified during Onboarding who Customer permits to access and use the Software ("Authorized Users") and (b) use the product documentation provided by Ajustee in connection with the Software (the "Documentation") solely for Customer's internal use in connection with Customer's use of the Software.
2.2. Restrictions. Customer will not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) use or access the Software or Documentation except as permitted hereunder; (b) use the Software or Documentation as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Software or any copy thereof to any third party; (d) misappropriate any data or information from the Software or Documentation; (e) disrupt the functioning of the Software; (f) otherwise act in a manner that interferes with Ajustee's operation of the Software or with the use of the Software by others; (g) gain any unauthorized access to the Software or Documentation for any other purpose; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Software, Documentation, or any security technology, software, or rights management information contained within the Software or in any software used to enable the Software; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Software or Documentation; (j) access or use the Software to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (k) exploit the Software in any unauthorized way whatsoever, including by trespass or burdening server or network capacity or Software infrastructure (including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying "spiders," "web-bots," "screen-scrapers," or "web crawlers" that may damage or adversely affect server or network capacity or Software infrastructure); or (l) attempt, or encourage or assist any third party to do, any of the foregoing.
2.4. Reservation of Rights. Ajustee reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software or Documentation. Notwithstanding anything to the contrary herein, Ajustee may, without prior notice, change the Software; stop providing the Software or features of the Software, to Customer or to Authorized Users generally; or create usage limits for the Software.
2.5. Delivery. Ajustee will deliver the Software electronically via the following method: Ajustee will provide Customer with login credentials to allow Customer and its Authorized Users to access and use the Software via a hosted interface.
2.6. Customer Responsibilities. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including without limitation any Customer Inputs. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software and Documentation and will cause Authorized Users to comply with such provisions.
2.7. User Accounts. Customer's account on the Software ("User Account") gives Customer access to the services and functionality that Ajustee may establish and maintain from time to time and in its sole discretion. Ajustee may maintain different types of User Accounts for different types of Authorized Users. If Customer opens a User Account on behalf of AJUSTEE, organization, or other entity, then (a) "Customer" includes Customer and that entity, and (b) Customer represents and warrants that Customer is an authorized representative of the entity with the authority to bind the entity to this Agreement, and that Customer agrees to this Agreement on the entity's behalf. By connecting to Ajustee with a third-party service, Customer gives Ajustee permission to access and use Customer's information from that service as permitted by that service, and to store Customer's log-in credentials for that service.
2.8. User Account Security. Customer may never use another Authorized User's User Account without permission. When creating Customer's User Account, Customer must provide accurate and complete information and must keep this information up to date. Customer is solely responsible for the activity that occurs on Customer's User Account, and Customer must keep his or her User Account password secure. Customer must notify Ajustee immediately of any breach of security or unauthorized use of Customer's User Account. Ajustee will not be liable for any losses caused by any unauthorized use of Customer's User Account. Customer may control their Authorized User profile and how Customer interacts with the Software by changing the settings in the Software's settings page. By providing Ajustee an email address, Customer consents to Ajustee's use of the email address to send Customer Software-related notices, including any notices required by law, in lieu of communication by postal mail. Ajustee may also use Customer's email address to send other messages, such as changes to features of the Software and special offers. If Customer does not want to receive such email messages, Customer may opt out or change their preferences in their settings page. Opting out may prevent Customer from receiving email messages regarding updates, improvements, or offers.
3. Ownership and Data Rights.
3.1. Ownership. As between Ajustee and Customer: (a) Customer owns all right, title and interest in and to any and all of its Customer Inputs; and (b) Ajustee owns all right, title and interest in and to the Software, Documentation, and Usage Data (as defined below), including but not limited to all intellectual property and other proprietary rights therein and thereto. "Usage Data" means data and other information arising from Licensee's use of the Software.
4. Fees; Payment.
4.1. Fees. Customer shall pay the Fees via the payment method Customer selects during Onboarding. Ajustee may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in its sole discretion. Fees are non-refundable unless otherwise set forth in this Agreement or as required by Applicable Laws. In the event that Ajustee suspends or terminates your User Account or this Agreement for your breach of the Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Software, any content or data associated with your User Account, or for anything else. Ajustee accepts various payment methods through a payment processor, such as Stripe. By using the Software or Ajustee websites, Customer agrees to be bound by Stripe's Services Agreement available at https://stripe.com/us/legal
4.2. Late Payments. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold Ajustee harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder.
4.3. Payment Information; Taxes. All information that Customer provides in connection with a purchase or transaction or other monetary transaction interaction with Ajustee must be accurate, complete, and current. Customer agrees to pay all charges incurred by users of its credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Software at the prices in effect when such charges are incurred. Customer will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
4.4. Fee Increases. Ajustee may, in its sole discretion, increase or otherwise modify the Fees at each renewal period during the Subscription Term by providing Customer notice of changes to the Fees at least forty-five (45) days prior to the end of the then-current Subscription Term. If Customer does not agree to the new or changed Fees, Customer may exercise its right not to renew the Agreement.
5. Subscription Term and Termination.
5.1. Effective Date and Subscription Term. Unless earlier terminated in accordance with this Section 5, this Agreement and the license granted hereunder shall be effective as of the Effective Date and shall continue through the Subscription Term. The Agreement will automatically renew for additional periods equal to the length of the initial Subscription Term unless a party provides the other written notice of its intention not to renew at least thirty (30) days prior to the end of the then-current Subscription Term.
5.2. Beta Term. Ajustee may offer Customer a Subscription Term, at Ajustee's sole discretion, for the purpose of Customer's testing and evaluation of the Software ("Beta Term"). Customer acknowledges and agrees that any Software provided during a Beta Term is a "beta" version that may contain bugs, defects and errors, or result in errors, and that such Software is not expected to function fully upon grant of access and use to Customer, even when used in accordance with this Agreement. Ajustee may substantially modify the Software prior to its commercial release, or at Ajustee's sole discretion, may not release the Software commercially.
5.3. Termination. Ajustee may permanently or temporarily terminate or suspend Customer's access to the Software without notice and liability for any reason, including if in Ajustee's sole determination Customer violates any provision of this Agreement.
5.4. Effect of Termination. Sections 1, 2.2, 2.3, 2.4, 2.6, 2.8, 3, 4, 5.4, 6 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 7, 8, 9, 10, 11, 12, 13, and 14 shall survive termination of this Agreement. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination.
6.1. Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the "Confidential Information"). Notwithstanding any failure to so designate them, the Software, the Documentation and the Terms shall be Ajustee's Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party's Confidential Information; (b) refrain from using the other party's Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party's agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
6.2. Remedy. Each party agrees and acknowledges that any breach or threatened breach of this Section 6 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
8. Suggestions and Improvements.
Customer may choose to or Ajustee may invite Customer to submit comments or ideas about Ajustee's products and services, including without limitation the Software and Documentation ("Feedback"). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Ajustee under any fiduciary or other obligation, and that Ajustee is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer's submission, Ajustee does not waive any rights to use similar or related ideas previously known to Ajustee, or developed by its employees, or obtained from sources other than Customer.
9. Representations and Warranties.
9.1. Customer Representations and Warranties. Customer hereby represents and warrants that: (a) its use of the Software and Documentation will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Laws to submit, transmit, provide, receive, access and/or use its Customer Inputs, including any personal information therein, and any other content it provides, receives, accesses and/or uses through or in connection with the Software or Documentation; (c) it is solely responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with the Customer Inputs; and (d) the Customer Inputs and Ajustee's use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Laws or infringement or misappropriation of any rights of any third party, including without limitation any intellectual property right or privacy right, (ii) any liability from Ajustee to any third party, or (iii) the payment by Ajustee of any fees to any third party.
9.2. Warranty Disclaimer.
9.2.1. General Disclaimer. (A) AJUSTEE, ON BEHALF OF ITSELF AND ITS LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND AJUSTEE AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SOFTWARE.
9.2.2. Results of Use of the Software. THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER'S USE OF, AND AJUSTEE'S PROVISION OF, THE SOFTWARE MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE SOFTWARE IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS ADVICE. ACCORDINGLY, AJUSTEE HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES AJUSTEE FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION PROVIDED VIA THE SOFTWARE.
Customer shall defend, indemnify, and hold harmless Ajustee and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys' fees) arising from or relating to: (a) Ajustee's ingestion, commingling, processing, use, or distribution of the Customer Inputs as permitted hereunder; or (b) Customer's or its Authorized Users': (i) use of and access to the Software; (ii) violation of any term of this Agreement, including without limitation breach of any of its representations and warranties; (iii) violation of any third-party right, including without limitation any intellectual property rights; (iv) violation of any applicable law, rule or regulation; (v) negligence or willful misconduct; or (vi) any other party's access and use of the Software with your unique username, password or other appropriate security code.
11. Limitation of Liability.
11.1. Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AJUSTEE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SOFTWARE. UNDER NO CIRCUMSTANCES WILL AJUSTEE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SOFTWARE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
11.2. Liability Caps. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AJUSTEE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SOFTWARE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SOFTWARE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SOFTWARE; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL AJUSTEE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO AJUSTEE HEREUNDER OR $100.00, WHICHEVER IS LESS.
11.3. THIS LIMITATION OF LIABILITY SECTION 11 APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF AJUSTEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11.4. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Compliance with Laws. Each party will comply with all Applicable Laws.
13.1. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer, but may be assigned by Ajustee without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
13.2. Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 13.2 (each a "Force Majeure Event"), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
13.3. Governing Law; Dispute Resolution. This Agreement shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Ana California. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after sixty (60) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in Santa Ana, California, unless otherwise agreed. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 13.3 shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.
13.4. Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
13.5. Publicity. Customer hereby grants to Ajustee during the Subscription Term and for six (6) months following the expiration or termination of the Subscription Term, a non-exclusive, royalty-free, non-sublicensable license to use Customer's Marks in Ajustee's advertising, literature and websites for the purpose of identifying Customer as a current or former Ajustee client or affiliate. This license shall include the right to use quotes from Customer's Authorized Users regarding their satisfaction with Ajustee and/or the Software. This license shall also include the right to perform a case study to determine and publicize how the Software improved Customer's development. Customer shall have no right to use Ajustee's Marks.
13.6. Notices. Ajustee may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to Customer via email notice, written or hard copy notice, or through posting of such notice on Ajustee's website, as determined by Ajustee in its sole discretion. Ajustee reserves the right to determine the form and means of providing notifications to Customer and Authorized Users, provided that Customer and Authorized Users may opt out of certain means of notification as described in this Agreement. Ajustee is not responsible for any automatic filtering you or your network provider may apply to email notifications Ajustee send to the email address you provide us. Ajustee may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When Ajustee changes the Agreement in a material manner, Ajustee will update the 'last modified' date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Software after any such change constitutes your acceptance of the new Agreement. If you do not agree to any of these terms or any future Agreement, do not use or access (or continue to access) the Software.
13.7. Export Law Assurances. Customer understands that the Software is or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE SOFTWARE OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT'S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT'S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
13.8. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
13.9. Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the Terms. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
13.10. Entire Agreement; Modification; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Ajustee may, in its sole discretion and from time to time, modify these Terms to reflect changes to Applicable Laws or to the Software. Accordingly, Customer should review this page periodically. Customer's continued use of the Software after any such change constitutes Customer's acceptance of the new Terms. If Customer does not agree to any of these Terms or any future Terms, Customer will not use (or continue to use) the Software. Changes will not apply retroactively and will become effective no sooner than fourteen (14) days after they are posted. However, changes addressing new functions or changes made for legal reasons will be effective immediately. If Customer does not agree to the modified Terms, Customer should discontinue use of the Software. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
14. DMCA Notice.
14.1. Since Ajustee respects content owner rights, it is Ajustee's policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA"). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Software or Ajustee websites, please notify Ajustee's copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
14.1.1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
14.1.2. Identification of the copyrighted work that you claim has been infringed;
14.1.3. Identification of the material that is claimed to be infringing and where it is located on the Software or Ajustee websites;
14.1.4. Information reasonably sufficient to permit Ajustee to contact you, such as your address, telephone number, and, e-mail address;
14.1.5. 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 law; and
14.1.6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
14.2. The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
1720 West Oceanfront, Unit A
Newport Beach, CA 92663
14.3. UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
14.4. Please note that this procedure is exclusively for notifying Ajustee and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Ajustee's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
14.5. In accordance with the DMCA and other applicable law, Ajustee has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Ajustee may also at its sole discretion limit access to the Software or Ajustee websites and/or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.