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Click Defense, Inc. Terms of Service
This
Click Defense Subscriber Agreement (“Agreement”) is made by and
between
the
(
“Customer”) and Click Defense, Inc., a Colorado corporation. To the
extent of any conflict among them, the information provided during the
on-line sign-up process supersedes these terms and conditions
(but only to the
extent that such information is expressly ratified and adopted by Customer
in writing) (“On-Line Updates”),
but these terms and conditions supersede
any provisions of any Customer or Click Defense purchase order and all
related proposals and communications.
1. Description of Services
Click
Defense
will provide non-exclusive, except for data specific to Customer, non-sub licensable,
non-transferable, web analytical data reporting to Customer of browser
accesses to Customer’s web pages (“Pages”) including, without
limitation, audited campaign clicks, page views, session length, IP
addresses, unique visitors, repeat visitors, frequency of visits,
peak-volume traffic periods (all available for time periods that may be
specified by Customer, and modified by Customer from time to time) and all
such other information that Click Defense makes available in its normal
course of business to other customers of the “Click Fraud” service
(“Service”) and in accordance with the specifications set forth in any
applicable help files or documentation provided by Click Defense.
This
Agreement expressly excludes the transfer of any Click Defense
intellectual property rights to Customer and grants no license or rights
to Click Defense software code, patents, confidential information, or
trade secrets, or any other Click Defense intellectual property or
confidential information.
Customer agrees that it shall in no way contest or deny the
validity of, or the right or title of Click Defense in or to any Click
Defense patent, trademark, trade name, color combination, insignia or
device, by reason of this Agreement, and shall not encourage or assist
others directly or indirectly to do so, during the lifetime of this
Agreement and thereafter. In
addition, Customer shall not utilize any such Click Defense trademark,
trade name, color combination, insignia or device in any manner that would
diminish its value or harm the reputation of Click Defense.
Upon termination of this Agreement, any and all rights or
privileges of Customer to the use of Click Defense’s trademark, trade
name, color combination, insignia, equipment, or devices, if at all, will
cease.
Customer
agrees that Customer (a) shall not use the Click Defense proprietary and
confidential information except as otherwise provided in this Agreement,
and acknowledges that Customer shall be solely liable for any misuse of
the proprietary and confidential information; (b) shall not modify the
Click Defense proprietary and confidential information without obtaining
written permission of Click Defense, or modify, decompile, disassemble or
otherwise reverse engineer the Click Defense proprietary and confidential
information.
Customer
acknowledges and agrees that Click Defense is the sole owner of all right,
title and interest in and to the Click Defense proprietary and
confidential information and related intellectual property, patents, and
trade secrets, and that nothing contained herein shall be deemed to grant
to Customer any ownership interest in the Click Defense proprietary and
confidential information and related intellectual property, patents,
confidential information, and trade secrets. Customer
agrees that it will not directly or indirectly challenge or contest Click
Defense’s sole ownership of Click Defense proprietary and confidential
information, purport to assign to any third party any ownership interest
in the Click Defense proprietary and confidential information, or use the
proprietary and confidential information contrary to the terms and
conditions of this Agreement. Customer will promptly notify Click Defense
of any use of the Click Defense proprietary and confidential information
contrary to the terms and conditions of this Agreement.
Subject
to Click Defense’s acceptance of your registration and compliance with
the terms and conditions of this Agreement, Click Defense will provide You
with the following services (Main Services) : Click Defense will create
(1) Web Analytics account in your name on our server (the
"Account") This account will include the ability to add to your
services, and to create additional web site, sub-accounts for access by
you for website analytics purposes.
Click Defense is providing Enterprise services. The type of data available, and the
support included, will vary with the plan chosen. Click Defense will allow
you to retrieve analytics reports at regular intervals for your account
from our Web-based customer service area provided.
In your use of Click Defense, you are responsible for providing the
following:
All equipment, such as a computer and modem, necessary to access the World
Wide Web
Your own access to the Internet.
Payment of all telephone or other fees associated with such Internet
access.
Please note that Click Defense provides several services, such as Click
Fraud Detection, Click Fraud Refunds, Bid Managed Solutions, SEO, SEM,
Software Developments, Search Directories, and other types of consulting
services. It is possible that one or more of these services may not be
available at certain times. Please view our home page to obtain the
current availability status for various services.
2. Conditions of Use
You are solely responsible for the content of all data that you store or
retrieve from, or attempt to store or retrieve from, your Click Defense
account. Your use of this service is subject to all applicable local,
state, national and international laws and regulations.
You will:
Not use the Service for any illegal purposes
Not use the Service retrieve, transmit or view any file, data, image or
program that contains:
Any illegal pictures, materials or information
Any harassing, libelous, abusive, threatening, harmful, vulgar,
pornographic, obscene or otherwise objectionable material of any kind or
nature
Any material that encourages conduct that could constitute a criminal
offense, give rise to civil liability or otherwise violate any applicable
local, state, national or international law or regulation
Any code or material that violates the intellectual property rights of
others
Any Windows temporary files of any kind (including, without limitation,
any *.p or ~*.* files); or any viruses, worms, "Trojan horses"
or any other similar contaminating or destructive features
You will:
Comply with United States and other applicable laws regarding the
exportation and re-exportation of any data or other materials from the
United States or other jurisdictions through the Service
Not use the Service for any spamming, chain letters or other use that may
otherwise disrupt the Service or the networks through which you access and
use the Service
Comply with all regulations, policies and procedures of networks through
which you access and use the Service.
Not access or attempt to access any Service account for which you have no
access authorization or duplicate, modify, distribute or display any of
the data or files from any such account
3. Registration Information – Billing & Payment Terms
You will promptly notify Click Defense of any change in the information
you provide during registration for the Service (including any change in
your mailing address, telephone numbers or email address). The
registration information provided by you on your registration form during
registration for Service, together with any and all updates provided by
you from time to time under this paragraph, is referred to in this
Agreement as "Registration Information." Click Defense policy
regarding the privacy and use of your Registration Information is set
forth in our privacy policy, (referred to here as the "Privacy
Policy"). When you accept this Agreement, you acknowledge that
you agree to the terms of this policy.
If you sign up for one of our "10 DAY FREE TRIAL" plans, your
card may be pre-authorized (but not charged) for the amount of $1 for
security purposes. The authorization will automatically disappear within 7
to 14 days. In 15 days, your card will be charged a prorated amount
for the plan amount and will continue to be billed monthly at the regular
plan rate until you cancel.
All
charges will appear on your credit card statement as Click Defense, Inc.
3.1 Billing & Payment Terms.
The billings terms of this agreement will begin
upon
Click Defense receiving your signed proposal credit card
authorization form. Your signed authorization form acknowledges your
acceptance of these terms and shall also act
(the “Effective
Date”). All services provided can not be delivered until payment or credit
terms have been received.
On the Effective Date the billing terms of this agreement shall continue
for one (1) years unless terminated by either party pursuant to section 9.
3.2 Payment
& Billing Terms: Subscriber will be billed in advance for any
technical service setup, or monthly base fee’s as of the Effective date. Customers credit
card provided in (Section 3.1). will be the preferred method of payment and billed monthly.
If paying by check you are required to have a credit card on file as a
backup form of payment. Customer
invoices are submitted via email on or during the 1st week of
each month and payment is due and automatically billed upon receipt, unless otherwise other terms are agreed to in
advance.
3.3
You then authorize Click Defense to run a recurring monthly charge to your
credit card provided in exchange for use of the Click Defense
service(s) as indicated in (Section 3.6) "Service
Plans", or contained within the customers “Customized Pricing Proposal”
provided to you. Your account status may be upgraded at any time, or
downgraded, from one pricing plan to the other based upon your monthly
volume.
3.4 Default or Inability to pay:
Subscriber agrees to pay 1.5% compounded per month of the total balance
due for any payments due received more than 7 days after Invoice
submitted.
3.5 Pricing Adjustments –
Click Defense may raise or lower it’s prices at any time on it’s
subscribers for the following month billing cycle with 30 days written
notice of said price changes.
3.6 Service Plans:
A. Enterprise
Click Fraud:
Enterprise auditing services start, with a minimum base fee of $295.00 per month. This
service monitors up to 20,000 clicks per Calendar Month. Clients are provided
with a "Base Fee" and coverage amount contained within (Section 3.6)
titled "Active Enterprise Pricing Quotes and Adjustments". Enterprise accounts that
are reporting less then their quoted expectation of covered clicks, which are
also calculated by a "CPM metric' (Cost Per Thousand Clicks) during their
first month of service may have their base fee and CPM effective rate
raised accordingly per the "Active Enterprise Pricing Quotes and
Adjustment" schedule listed herein, unless otherwise agreed by both
parties before the monthly billing cycle commences in Section 3.2.
In the event the customers base fee and coverage are modified in any way,
the customer will be properly notified by Invoicing in Section 3.2 as to
which pricing schedule the client has achieved during the monthly billing
cycle.
Example
/ Definition of Enterprise Billing: Customer. has agreed to a prepayment
for the base fee of $600.00 covering up to 50,000 tracked clicks in a calendar
month. At the end of the calendar month should the total number of clicks
reported and tracked by Click Defense have exceeded above 50,000 clicks, then the
client will be billed at the agreed base fee and "CPM" rate contained
within their quoted proposal. In the event the reported clicks stay within
the Coverage range, then no additional charges would be computed or
prorated by any means, unless the reported clicks were less then the
minimum covered amount.
"Active Enterprise
Pricing Quotes and Adjustments":
Base Fee: $300.00
Coverage : 0 up to 20,000 clicks $15 CPM (cost per 1,000
clicks)
Base Fee:
$600.00 Coverage:
20,001 up to 50,000 clicks: $12.00 CPM (cost per 1,000 clicks)
Base Fee:
$1000.00 Coverage: 50,001 up to 100,000 clicks: $9.50 CPM (cost per 1,000
clicks)
Base Fee:
$3500.00 Coverage: 100,001 up to 500,000 clicks: $7.00 CPM (cost per 1,000 clicks)
Base Fee:
$5,000.00 Coverage: 501,000 up
to 1,000,000+ clicks: $5.00 CPM (cost per 1,000 clicks)
4. Account and Password
After you accept this Agreement and your registration forms have been
accepted by Click Defense, your account will be activated, and you will
receive a user name and password within 2 weeks of such activation for
Enterprise accounts and within the same day for Basic Service, as well as
instructions on how to log into your account.
You are solely responsible for any consequences arising out of your
failure to maintain the confidentiality of your account password. You will
notify Click Defense of any unauthorized use or other breach in security
of Your Account immediately upon learning of the same.
5.
Security of Stored Data and Files
Click Defense will endeavor to restrict access to the data and files on
your Account to persons accessing such data and files through use of your
Account (using your password). However, no password-protected system of
data can be made entirely impenetrable. Accordingly, you hereby
acknowledge that it may be possible for an unauthorized third party to
access, view, copy, modify and distribute the data and files you store in
your Account. An IP address is a number that is automatically
assigned to your computer whenever you are online and viewing Web pages.
Click Defense may collect IP addresses for the purposes of system
administration, and to audit the use of our site. We can and will use IP
addresses to identify a user when we feel it is necessary to enforce
compliance with our house rules or terms of service or to protect our
service, site, customers, or others.
6. Disclaimer of Warranties
The transmission, storage, viewing and retrieval of data and files
through the World Wide Web is subject to a variety of conditions that make
such transmission, storage, viewing and retrieval potentially unreliable.
ACCORDINGLY, YOUR USE OF YOUR ACCOUNT AND THE SERVICE IS AT YOUR SOLE
RISK. YOUR ACCOUNT AND THE SERVICE IS PROVIDED TO YOU ON AN "AS
IS" AND "AS AVAILABLE" BASIS. Click Defense, ON BEHALF OF
ITSELF AND ITS DISTRIBUTORS, ADVERTISERS AND SUPPLIERS, DISCLAIMS ALL
WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO YOUR ACCOUNT AND THE SERVICE (INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE AND NON-INFRINGEMENT). PLEASE NOTE THAT YOUR ACCOUNT
AND THE SERVICE MAY NOT MEET YOUR NEEDS. CLICK DEFENSE MAKES NO
REPRESENTATION OR WARRANTY:
THAT YOUR ACCOUNT OR THE SERVICE WILL MEET YOUR NEEDS
THAT ACCESS TO YOUR ACCOUNT OR THE SERVICE WILL BE TIMELY, ERROR-FREE,
UNINTERRUPTED, VIRUS-FREE OR SECURE, THAT THE DATA AND FILES YOU STORE IN
YOUR ACCOUNT WILL NOT BE LOST OR DAMAGED THAT THE DATA ON YOUR DESKTOP OR
SERVER WILL NOT BE LOST OR DAMAGED THAT DEFECTS IN THE SERVICE WILL BE
CORRECTED.
YOU ACKNOWLEDGE THAT ANY MATERIAL OR DATA YOU RETRIEVE THROUGH THE USE OF
THE SERVICE IS DONE AT YOUR CHOICE AND RISK AND THAT YOU WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE RETRIEVAL OF SUCH MATERIAL OR DATA.
7. Limitations of Liability
The
information, software, products, services and other material included in
or available through the ClickDefense may not be complete, and may include
inaccuracies or errors, and may also be modified, discontinued or deleted
from time to time without notice. Advice, information, products, services
or other materials received via the ClickDefense should not be relied upon
for personal, medical, legal, business, financial or other decisions and
is not intended to replace the advice of appropriate and qualified
professionals. You acknowledge that you should consult an appropriate
professional for specific advice tailored to your situation.
Your
access to and use of the ClickDefense, and products and services of
ClickDefense, is at your own risk. ClickDefense makes no guarantees of any
kind regarding the dependability, accuracy, security, timeliness or
availability of the ClickDefense, or such products or services. Without
limiting the foregoing, NEITHER ClickDefense NOR ITS RESPECTIVE SUPPLIERS
MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE CONDITION, SUITABILITY,
RELIABILITY, AVAILABILITY, COMPLETENESS, SECURITY, TIMELINESS, OR ACCURACY
OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND MATERIALS CONTAINED
IN ClickDefense FOR ANY PURPOSE. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS,
SERVICES AND MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF
ANY KIND. ClickDefense AND ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL
REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH
REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR MATERIALS,
INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
IN NO
EVENT SHALL ClickDefense OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT,
INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION:
DAMAGES
FOR LOSS OF USE, DATA, ACCOUNTS, REVENUES OR PROFITS, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF ClickDefense OR RELATED
SERVICES, OR WITH THE DELAY OR INABILITY TO USE ClickDefense OR RELATED
SERVICES; THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY
INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED
THROUGH ClickDefense; OR OTHERWISE ARISING OUT OF THE USE OF ClickDefense,
WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE, EVEN IF ClickDefense OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED
OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE
DISSATISFIED WITH ANY PORTION OF ClickDefense, OR WITH ANY OF THESE TERMS
OF SERVICE OR THE ADDITIONAL TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO
DISCONTINUE USING THE ClickDefense AND ITS RELATED SERVICES AND PRODUCTS.
Without limiting the foregoing, ClickDefense is not responsible for any of
your data residing on ClickDefense and ClickDefense hardware or systems,
including such hardware or systems provided to ClickDefense by third
parties. You are responsible for maintaining and backing-up your data and
information that may reside on the ClickDefense or ClickDefense hardware
or systems, including such hardware or systems provided to ClickDefense by
third parties, whether or not such information is produced through the use
of ClickDefense, including any information regarding the operation or use
of your Web site, catalogs, lists, order records, and other information
you are providing or using in connection with your use of the
ClickDefense. It is your responsibility to take the necessary steps to
ensure your primary means of business is maintained. ClickDefense will not
be liable for any damage, loss or disclosure of data, accounts, revenue or
business arising out of or otherwise related to: (a) your use of the
ClickDefense, its services or products; (b) your customers' use of your
Web site hosted by or created through ClickDefense and your products and
services; (c) use of the ClickDefense by any other party to whom you have
given access to your company information for use of the ClickDefense; (d)
errors, bugs or other defects in the ClickDefense; (e) lost company,
customer or vendor information (e.g., billing information, credit card
numbers, lost orders, etc.); (f) illegal or criminal activities, including
but not limited to reliance on any information obtained on the
ClickDefense Web Hosting service; or (g) or that result from mistakes,
omissions, interruptions, deletion of files or e-mail, loss of or damage
to data, errors, defects, viruses, delays in operation, or transmission,
or any failure of performance, whether or not limited to acts of God,
communications failure, theft, destruction or unauthorized access to
ClickDefense's records, programs or services. You are solely responsible
for maintaining and backing-up any information regarding the operation or
use of your Web site, catalogs, lists, order records, and other
information you are providing or using in connection with your use of the
ClickDefense.
ClickDefense
is not liable for your actions with your customers or vendors, or the use
of their information, or for any other actions arising from your use, or
the use of other parties to whom you have given access to your
ClickDefense information, through the use of the ClickDefense.
ClickDefense
is not involved in any transaction between you and your buyer or seller or
other third parties with whom you may have transactions through your Web
site or between you and any user of any products or services offered or
provided by you or by a third party through the ClickDefense. ClickDefense
is not responsible for screening, censoring or otherwise controlling your
Web Site, or any listings or transactions offered or conducted via your
Web Site. You are deemed to have a direct commercial relationship with
each third party that purchases goods or services from or undertakes any
other transaction with you via your Web site or through ClickDefense.
ClickDefense is not acting as your or any third party's agent in
connection with the operation of ClickDefense. You are solely responsible
for: (a) processing customer orders or other transactions; (b) verifying
the validity of incoming customer orders before finalizing the order; (c)
informing customers of the status of such orders or transactions; (d)
providing all customer support related to such orders or transactions
(e.g., lost orders, billing disputes, payments, etc.); and, (e)
determining, collecting and remitting to the appropriate authority all
taxes (if any) arising from or related to such orders or transactions.
Further, because ClickDefense is not involved in any orders or other
transactions between you and other users of ClickDefense or other
marketplace forums, ClickDefense cannot and will not be involved in
resolving any disputes relating to any completed or uncompleted
transactions or the purchase or sale of listed goods or otherwise.
Unless
otherwise expressly stated in these Terms of Service, your payments for
orders or transactions conducted via your web site or on any ClickDefense
service will be paid to you directly from your designated acquiring bank,
customers or other appropriate source ("payor"). ClickDefense is
not responsible for such payment, and will have no liability for any lost,
disputed or fraudulent payment or tenders of payment, or other disputes
arising between you and customers or payors. ClickDefense makes no
guarantee about the reliability or accuracy of these products or services,
or the results obtained from using ClickDefense.
8. Indemnification
You will defend, indemnify and hold Click Defense, its parents,
subsidiaries, affiliates, agents, officers, directors and employees,
harmless from any claim or demand, including reasonable attorneys' fees
and costs, made by any third party due to or arising out of (a) your use
of your Account and the Service, (b) any data files in your Account and
otherwise on the Click Defense servers and (c) any violation of this
Agreement by you.
9.Termination
Either you or Click Defense may terminate this Agreement with or without
cause at any time by giving notice of such termination to the other in the
manner described in paragraph 10 below. Further, if Click Defense believes
that you have violated your obligations under this Agreement, Click
Defense may, at its option and in addition to its other remedies,
immediately and without notice, suspend your Account, remove and destroy
data stored by you on our servers and/or terminate this Agreement. Click
Defense will not be liable to you or any third party for any suspension or
termination of your Account or the Service. Should you object to any terms
and conditions of this Agreement or any subsequent modifications thereto
or become dissatisfied with the Service in any way, your only recourse is
to immediately: (a) discontinue use of the Service; (b) terminate this
Agreement; and (c) notify Click Defense of such termination. Upon any
termination of this Agreement, you will cease use of the Service and,
within five (5) days after the effective date of such termination remove
all links or code connected to Click Defense services. Any Click Defense
tracking codes that remain active and in use will be invoiced and billed
until such codes are removed, and Click Defense has written notice that
such codes have been removed.
9.1
Termination
of this Agreement shall not release either party of their respective
obligations of payment, warranty, intellectual property rights, and from
the confidentiality and indemnity provisions hereof
10. Notices
Any notice under this Agreement given by Click Defense to you will be
deemed to be properly given if sent by email to your email address as set
forth in the Registration Information, or by a startup screen that starts
before your next use of the Service or by written communication mailed by
first class U.S. mail to your address on record in the Registration
Information or by a display about the changed information in the agreement
on the index page if the change is generic. It is important that you
maintain a correct working email id and update it if necessary to be able
to receive these communications. Any notice under this Agreement given by
you to Click Defense will be deemed to be properly given if received by
email sent to Click Defenses support group.
11. Governing Law/Disputes. Any dispute or difference between the Parties in
connection with the Subscriber Agreement, which cannot be resolved within
sixty (60) days, shall be finally settled by arbitration.
Any arbitration proceedings shall be governed by the Commercial
Mediation Rules of the American Arbitration Association ("AAA")
in effect on the date of the dispute and shall be conducted in English
language. Any such dispute
shall be submitted to a panel of one (1) arbitrator
to be nominated per the said Rules. Each party shall bear its
own costs with respect to the arbitration. The substantially
prevailing party in such arbitration shall be entitled to an award for its
costs and reasonable attorneys’ fees incurred therein.
11.2
This Agreement
shall be construed in accordance with the substantive laws of the State of
North Carolina, including its provisions of the Uniform Commercial Code,
and notwithstanding that state’s rules relating to conflicts of laws.
Except to the extent required by the mandatory arbitration provisions of
this Agreement in Section 11.2 the parties agree that any suit to enforce
or compel the performance of any obligation or provision of this
Agreement, to obtain a remedy for any breach of this Agreement, to obtain
the construction of any provision of this Agreement, or to otherwise
determine the legal effect of this Agreement, shall be brought solely in
the United States District Court for the District of North Carolina. Each
party irrevocably consents to the personal jurisdiction of such Court for
the purpose of any such suit and waives any defense or objection based on
improper venue, inconvenient forum, or lack of personal or subject matter
jurisdiction. The parties agree that this Agreement shall be construed by
a relationship of good faith and fair dealing.
11.3 Arbitration Rules. Any
dispute, claim or controversy arising out of, connected with or relating
to this Agreement shall be resolved by binding arbitration administered
and conducted under the Commercial Arbitration Rules of the American
Arbitration Association and Title 9 of the United States Code. A judgment
upon the arbitration award may be entered in any court having
jurisdiction. Any arbitration hearing to take place shall be selected by
Click Defense, Inc. Nothing in this Section, however, shall prevent either
party from seeking equitable relief from a court of competent jurisdiction
for the other party's breach of its confidentiality obligations or
infringement of the aggrieved party's intellectual property rights.
11.4
The duty to arbitrate shall extend to any officer, employee, agent, or
affiliate making or defending any claim between or among the parties. The arbitration shall be held in a location best suited for
the resolution of the dispute in light of the convenience of the parties
and their documents and witnesses, or failing agreement on such place, in
Wake County, North Carolina. The
arbitrator’s decision and award shall be final and binding.
Each party shall pay all of its associated costs, expenses and
attorney’s fees, and the parties shall share equally the cost of the
arbitrator and any accountants or advisors which the parties agree to
employ for the benefit of the arbitrator. The arbitrator shall not be
empowered to award punitive damages. No party shall be entitled to lost
profits damages, or incidental or consequential damages, or damages in the
nature of penalties.
11.5
Modifications to this Agreement
The terms and conditions of this Agreement may be changed by Click
Defense. Upon any such changes, Click Defense will notify you of such
changes in accordance with paragraph 11 above and post an updated version
of this Agreement on the Click Defense website located at http://www.ClickDefense.com
titled a link to “Terms”. Your use of any Services after such
notification will constitute your acceptance of such changed terms and
conditions.
12. Miscellaneous
Your right to use the Service is personal to you, and you will not assign
any of your rights, obligations or interest in this Agreement or your
Account. Without limiting the foregoing, this Agreement is binding upon
and inures to the benefit of the parties and their respective successors
and assigns. Click Defense’s failure to insist upon or enforce strict
performance of any provision or right of this Agreement will not be
construed as a waiver of any provision or right. This Agreement will be
governed by the laws of the State of North Carolina, without regard to its
conflict of laws rules. You consent to the venue and exclusive
jurisdiction of the state and federal courts located in Wake County,
Raleigh, NC with regard to any claim arising under or otherwise
occurring by reason of this Agreement or your use of the Service or your
Account. You will commence any claim or cause of action arising under or
otherwise occurring by reason of this Agreement within one (1) year after
the claim or cause of action arises or such claim or cause of action is
forever barred. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes any and
all prior and contemporaneous understandings and agreements.
12. 1 You agree that no joint venture, partnership, employment, or
agency relationship exists between you and ClickDefense as a result of
these Terms or Service or use of ClickDefense.
12. 2
ClickDefense's performance of this agreement is subject to existing laws
and legal process, and nothing contained in these Terms of Service are in
derogation of ClickDefense's right to comply with governmental, court and
law enforcement requests or requirements relating to your use of the
ClickDefense or information provided to or gathered by ClickDefense with
respect to such use.
If any
part of these Terms of Service is determined to be invalid or
unenforceable pursuant to applicable law including, but not limited to,
the warranty disclaimers and liability limitations set forth above, then
the invalid or unenforceable provision will be deemed superseded by a
valid, enforceable provision that most closely matches the intent of the
original provision and the remainder of these Terms of Service and the
Additional Terms shall continue in effect.
Unless
otherwise specified herein, these Terms of Service and the Privacy Policy
constitute the entire agreement between the user and ClickDefense with
respect to the ClickDefense and they supersede all prior or
contemporaneous communications and proposals, whether electronic, oral or
written, between the user and ClickDefense with respect to the
ClickDefense.
A
printed version of these Terms of Service and of any notice given in
electronic form shall be admissible in judicial or administrative
proceedings based upon or relating to these Terms of Service to the same
extent and subject to the same conditions as other business documents and
records originally generated and maintained in printed form.
Any
rights not expressly granted herein are reserved by ClickDefense,
including all legal and equitable remedies available to ClickDefense or
violation of any of these Terms of Service.
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