BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS OR OTHERWISE OBTAINING ACCESS TO AND USE OF THE SERVICE, YOU (“CUSTOMER”) ARE AGREEING TO THE FOLLOWING GENERAL TERMS AND CONDITIONS, ALONG WITH ANY AND ALL INFORMATION POSTED DIRECTLY ON THE WEBSITE (AS DEFINED BELOW) AND REFERENCED HEREIN (THE "AGREEMENT") GOVERNING YOUR USE OF THE SERVICE (AS DEFINED BELOW). 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 TO THIS AGREEMENT, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
General Terms And Conditions
1. DEFINITIONS. As used in this Agreement (including any documents incorporated by reference), the following terms, whether used in the singular or plural, shall have the following meanings:
1.1 Confidential Information means, subject to the exceptions set forth in Section 8.2 hereof, all information identified by the disclosing party as confidential, including Data, Content and Kyube Technology (each as defined below), whether in oral, written, graphic or electronic form, and provided to the receiving party hereto, and any third party proprietary information rightfully held and disclosed by the disclosing party, and any other information (whether or not identified as confidential) in any form generally understood to be confidential, proprietary or trade secret, or by its nature or circumstances surrounding it disclosure should be reasonably regarded as confidential.
1.2 Content means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Service.
1.3 Improvement means any improvement, enhancement, alteration, modification or add-on to the Service as well as the Content and Kyube Technology, including but not limited to any suggestions, ideas, feedback, recommendations or any other information provided by Customer.
1.4 Intellectual Property Rights means trade secrets, patents, copyrights, trademarks, trade dress, know-how and similar rights of any type under the laws of any governmental authority, including without limitation, all applications and registrations relating to the foregoing.
1.5 Kyube Technology means all of Kyube’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Kyube in providing the Service.
1.6 Service(s) means the version of simplifycms.com's online services chosen by Customer on the Website.
1.7 Website means Kyube’s web site, accessible via www.simplifycms.com and any successor web sites designated by Kyube.
1.5 Kyube Technology means all of Kyube’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Kyube in providing the Service.
1.6 Service(s) means the version of simplifycms.com's online services chosen by Customer on the Website.
1.7 Website means Kyube’s web site, accessible via www.simplifycms.com and any successor web sites designated by Kyube.
2. SERVICE.
2.1 Grant of Rights. Subject to the terms and conditions of this Agreement, Kyube hereby grants to the Customer a personal, nonexclusive, nontransferable, nonassignable and nonsublicensable license to use the Service obtained pursuant to this Agreement, as limited in this Agreement.
2.2 User Names and Passwords. Customer shall choose its own user name(s) and password(s) (the “Password”) for use by Customer. Customer is allowed a limited number of Passwords depending upon the Service purchased. To the extent Customer purchases Services that includes multiple Passwords, more than one Password may be in use at a time. Regardless of the Service purchased only one person shall use a Password and obtain access to the Service through such Password at one time. Customer shall be responsible for controlling and monitoring the use of the Password and shall immediately notify Kyube of any actual or suspected unauthorized disclosure or use of the Password, access to the Service or any other known or suspected breach of security involving the Service. Customer acknowledges and agrees that it shall be bound by any actions taken through the use of its Password, whether or not such actions were authorized.
2.3 Ownership. Customer acknowledges and agrees that, as between Kyube and Customer, Kyube is the sole and exclusive owner of all right, title and interest to the Service as well as the Content and Kyube Technology, including but not limited to any and all modifications or derivative works thereof and any and all related Intellectual Property Rights, and that the Content and Kyube Technology is proprietary to Kyube and/or its licensors, and shall remain at all times the property of Kyube or its licensors. Customer shall not have any right, title or interest therein, other than the license rights expressly conferred hereby. Further, Customer hereby assigns and transfers and will assign and transfer to Kyube any and all ownership and interest it has in and to (i) any and all Improvements developed or created by or on behalf of Customer and (ii) any and all Intellectual Property Rights that claim or cover any such Improvements (collectively, the “Assigned Improvements”).
2.4 Restrictions.
2.2 User Names and Passwords. Customer shall choose its own user name(s) and password(s) (the “Password”) for use by Customer. Customer is allowed a limited number of Passwords depending upon the Service purchased. To the extent Customer purchases Services that includes multiple Passwords, more than one Password may be in use at a time. Regardless of the Service purchased only one person shall use a Password and obtain access to the Service through such Password at one time. Customer shall be responsible for controlling and monitoring the use of the Password and shall immediately notify Kyube of any actual or suspected unauthorized disclosure or use of the Password, access to the Service or any other known or suspected breach of security involving the Service. Customer acknowledges and agrees that it shall be bound by any actions taken through the use of its Password, whether or not such actions were authorized.
2.3 Ownership. Customer acknowledges and agrees that, as between Kyube and Customer, Kyube is the sole and exclusive owner of all right, title and interest to the Service as well as the Content and Kyube Technology, including but not limited to any and all modifications or derivative works thereof and any and all related Intellectual Property Rights, and that the Content and Kyube Technology is proprietary to Kyube and/or its licensors, and shall remain at all times the property of Kyube or its licensors. Customer shall not have any right, title or interest therein, other than the license rights expressly conferred hereby. Further, Customer hereby assigns and transfers and will assign and transfer to Kyube any and all ownership and interest it has in and to (i) any and all Improvements developed or created by or on behalf of Customer and (ii) any and all Intellectual Property Rights that claim or cover any such Improvements (collectively, the “Assigned Improvements”).
2.4 Restrictions.
(a) The Services may be used by Customer solely for Customer’s own internal business purposes. The license granted in Section 2.1 is a license for Customer only, as a subscriber to the Website, and is personal to Customer and as such Customer shall not permit any parent, subsidiaries, affiliated entities, persons or third parties to use the Service.
(b) Customer shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
(c) Customer shall not alter, modify or prepare derivative works of the Service, Content or Kyube Technology. Customer may not decompile, disassemble, translate, or otherwise reverse engineer the Service, Content or Kyube Technology or any part thereof.
(d) Customer shall not obtain or access the source code of the Content or Kyube technology or any part thereof.
(e) Customer shall not have, download, or obtain a copy of the Content or Kyube Technology or any portion thereof for installation on Customer’s own computers or otherwise, or to access the Content or Kyube Technology by any means other than through the Website.
(f) Customer shall not license, sell, assign, sublicense or otherwise transfer any of the rights conferred by the license in any manner.
(b) Customer shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
(c) Customer shall not alter, modify or prepare derivative works of the Service, Content or Kyube Technology. Customer may not decompile, disassemble, translate, or otherwise reverse engineer the Service, Content or Kyube Technology or any part thereof.
(d) Customer shall not obtain or access the source code of the Content or Kyube technology or any part thereof.
(e) Customer shall not have, download, or obtain a copy of the Content or Kyube Technology or any portion thereof for installation on Customer’s own computers or otherwise, or to access the Content or Kyube Technology by any means other than through the Website.
(f) Customer shall not license, sell, assign, sublicense or otherwise transfer any of the rights conferred by the license in any manner.
3. Reservation of Rights; Notice of Infringement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Kyube Technology or the Intellectual Property Rights owned by Kyube. The Kyube name, the Kyube logo, and the product names associated with the Services are trademarks of Kyube or third parties, and no right or license is granted to use them. Customer shall promptly notify Kyube of any infringement of Kyube’s Intellectual Property Rights that come to the attention of Customer.
4. CUSTOMER RESPONSIBILITIES.
4.1 Compliance. Customer will use the Service in accordance with the instructions and/or documentation made available to Customer on the Website from time to time. Customer acknowledges and agrees that Kyube has the right to modify such instructions and/or documentation in its sole discretion and Customer is responsible for periodically reviewing such instructions and/or documentation to ensure it is in full compliance with the Service.
4.2 Access to and Use of Service. Customer understands that it is exclusively responsible for the supervision, management and control of its use of the Service. Customer is responsible for all activity occurring on the Website through Customer’s use of the Service. Customer shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, content, international communications and the transmission of technical or personal data. Customer shall (i) report to Kyube immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer and (ii) not impersonate another Kyube user or provide false identity information to gain access to or use the Service.
4.2 Access to and Use of Service. Customer understands that it is exclusively responsible for the supervision, management and control of its use of the Service. Customer is responsible for all activity occurring on the Website through Customer’s use of the Service. Customer shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, content, international communications and the transmission of technical or personal data. Customer shall (i) report to Kyube immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer and (ii) not impersonate another Kyube user or provide false identity information to gain access to or use the Service.
5. DATA.
5.1 Ownership. As between the parties, Customer is the exclusive owner of all right, title and interest in and to all data provided by Customer to the Service, including but not limited to articles, pictures, videos or other information posted onto the Website (the “Data”). For purposes of clarity, Data shall not include the Assigned Improvements.
5.2 License. Customer grants Kyube a non-exclusive license to use the Data (i) to conduct internal statistical analysis, (ii) to share aggregated Data with third parties for marketing and business development purposes and (iii) in connection with the provision of the Service.
5.2 License. Customer grants Kyube a non-exclusive license to use the Data (i) to conduct internal statistical analysis, (ii) to share aggregated Data with third parties for marketing and business development purposes and (iii) in connection with the provision of the Service.
6. FEES AND PAYMENT.
6.1 Subscription Fee; Invoices; Payment. Customer shall pay to Kyube the subscription fee(s) identified on the Website for the Service purchased (the “Subscription Fee”). [Kyube charges and collects in advance for use of the Service.] Kyube will automatically renew and bill Customer’s credit card [or issue an invoice to Customer]. Payments may be made monthly, or annually, consistent with the subscription purchased. All payment obligations are noncancelable and all amounts paid are nonrefundable. Customer must provide Kyube with valid credit card or approved purchase order information as a condition to signing up for the Service.
6.2 Currency; Conversion. Payments shall be in United States dollars. Costs of conversion, outside collection and related bank charges shall be paid by Customer.
6.3 Fee Increases. Kyube reserves the right to modify its fees and charges and to introduce new charges at the end of the term of the subscription for the Service, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail.
6.2 Currency; Conversion. Payments shall be in United States dollars. Costs of conversion, outside collection and related bank charges shall be paid by Customer.
6.3 Fee Increases. Kyube reserves the right to modify its fees and charges and to introduce new charges at the end of the term of the subscription for the Service, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail.
7. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY.
7.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, KYUBE PROVIDES THE SERVICE ON AN “AS IS” BASIS AND KYUBE EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER EXPRESSLY AGREES THAT KYUBE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7.2 Construction. If Massachusetts law is not held to apply to this Agreement for any reason, then, in jurisdictions where warranties, guarantees, representations, and/or conditions of any type may not be disclaimed, any such warranty, guarantee, representation and/or warranty is: (1) hereby limited to the period of either (a) thirty days from the date upon which Customer first has access to the Service or (b) the shortest period allowed by law in the applicable jurisdiction if a thirty day limitation would be unenforceable.
7.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL KYUBE BE LIABLE (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE) FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE LICENSE GRANTED HEREBY, EVEN IF KYUBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL KYUBE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY AGREES THAT KYUBE WOULD NOT PROVIDE THE SERVICE WITHOUT INCLUSION OF THIS SECTION 7.3.
7.2 Construction. If Massachusetts law is not held to apply to this Agreement for any reason, then, in jurisdictions where warranties, guarantees, representations, and/or conditions of any type may not be disclaimed, any such warranty, guarantee, representation and/or warranty is: (1) hereby limited to the period of either (a) thirty days from the date upon which Customer first has access to the Service or (b) the shortest period allowed by law in the applicable jurisdiction if a thirty day limitation would be unenforceable.
7.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL KYUBE BE LIABLE (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE) FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE LICENSE GRANTED HEREBY, EVEN IF KYUBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL KYUBE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY AGREES THAT KYUBE WOULD NOT PROVIDE THE SERVICE WITHOUT INCLUSION OF THIS SECTION 7.3.
8. CONFIDENTIAL INFORMATION.
8.1 Use of Confidential Information. Each party acknowledges that it may have access to the other party’s Confidential Information. The party receiving the Confidential Information (the “Recipient”) agrees that it will not use in any way, for its own account or the account of any third party, except for the performance of this Agreement, nor disclose to any third party except as required by law, any Confidential Information disclosed to it by the other party (the “Discloser”) and will take reasonable precautions to protect the confidentiality of such information. In the event that Recipient is required by law to make any disclosure of any Confidential Information, by subpoena, judicial or administrative order or otherwise, Recipient shall give written notice of such requirement to Discloser, and, where possible, shall permit Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Discloser in seeking to obtain such protection. Notwithstanding the foregoing, the parties hereby acknowledge and agree that each of Kyube and Customer shall have the right to use and disclose Data, Content and Technology as provided in the agreement.
8.2 Exceptions. Information will not be deemed Confidential Information hereunder if such information: (a) is known to the Recipient prior to receipt from Discloser directly or indirectly from a source other than one having an obligation of confidentiality to Discloser; (b) becomes known (independently of disclosure by Discloser) to Recipient directly or indirectly from a source other than one having an obligation of confidentiality to Discloser; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by Recipient; or (d) is independently developed by Recipient.
8.2 Exceptions. Information will not be deemed Confidential Information hereunder if such information: (a) is known to the Recipient prior to receipt from Discloser directly or indirectly from a source other than one having an obligation of confidentiality to Discloser; (b) becomes known (independently of disclosure by Discloser) to Recipient directly or indirectly from a source other than one having an obligation of confidentiality to Discloser; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by Recipient; or (d) is independently developed by Recipient.
9. TERM AND TERMINATION.
9.1 Term. The term or subscription of this agreement shall be as specified on the Website in accordance with the Service purchased.
9.2 Termination.
9.3 Effect of Termination or Expiration. The termination of this Agreement or any license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve the Customer’s obligation to pay all fees that accrued prior to such termination.
9.4 Survival. Notwithstanding any termination of this Agreement, the provisions of Sections 7, 8, 9.3, 9.4, 11, 12 and 13 shall survive.
9.2 Termination.
(a) Customer may terminate this Agreement and the rights granted hereunder only at the end of its subscription term regardless as to whether such term is on a monthly, quarterly or annual basis.
(b) Kyube may terminate this Agreement and the rights granted hereunder as follows: (i) in the event that Customer defaults in the performance of any duty or obligation under this Agreement, which default is not cured within 30 days after written notice is given to Customer specifying the default, then Kyube may, by giving written notice thereof to Customer, terminate this Agreement as of the date specified in such notice; or (ii) In the event that (A) Customer makes an assignment for the benefit of creditors; (B) a petition under any foreign, state or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by Customer; or (C) such a petition is filed with respect to Customer by any third party, or an application for a receiver is made by anyone, and such petition or application is not resolved favorably within 30 days. Any failure to pay, a credit card account becoming delinquent or unauthorized use of the Kyube Technology constitutes a default of this agreement.
(c) Kyube may terminate this Agreement and the rights granted hereunder immediately without notice in the event of Customer’s breach of any obligation of this Agreement that (i) jeopardizes the security and/or functionality of the Service or (ii) gives rise to a liability of Kyube owed to a third party, provided however, Kyube shall not terminate the Agreement without notice if either (i) or (ii) is the result of Kyube’s gross negligence or willful misconduct.
(d) Termination for Convenience. Kyube may terminate this Agreement upon at least thirty (30) days prior written notice without obligation. In the case of termination by Kyube pursuant to this section 9(d) Kyube will refund a pro rata portion of the payments made by Customer for the Services.
(b) Kyube may terminate this Agreement and the rights granted hereunder as follows: (i) in the event that Customer defaults in the performance of any duty or obligation under this Agreement, which default is not cured within 30 days after written notice is given to Customer specifying the default, then Kyube may, by giving written notice thereof to Customer, terminate this Agreement as of the date specified in such notice; or (ii) In the event that (A) Customer makes an assignment for the benefit of creditors; (B) a petition under any foreign, state or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by Customer; or (C) such a petition is filed with respect to Customer by any third party, or an application for a receiver is made by anyone, and such petition or application is not resolved favorably within 30 days. Any failure to pay, a credit card account becoming delinquent or unauthorized use of the Kyube Technology constitutes a default of this agreement.
(c) Kyube may terminate this Agreement and the rights granted hereunder immediately without notice in the event of Customer’s breach of any obligation of this Agreement that (i) jeopardizes the security and/or functionality of the Service or (ii) gives rise to a liability of Kyube owed to a third party, provided however, Kyube shall not terminate the Agreement without notice if either (i) or (ii) is the result of Kyube’s gross negligence or willful misconduct.
(d) Termination for Convenience. Kyube may terminate this Agreement upon at least thirty (30) days prior written notice without obligation. In the case of termination by Kyube pursuant to this section 9(d) Kyube will refund a pro rata portion of the payments made by Customer for the Services.
9.3 Effect of Termination or Expiration. The termination of this Agreement or any license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve the Customer’s obligation to pay all fees that accrued prior to such termination.
9.4 Survival. Notwithstanding any termination of this Agreement, the provisions of Sections 7, 8, 9.3, 9.4, 11, 12 and 13 shall survive.
10. MARKETING; USE OF TRADEMARKS.
10.1 Marketing by Kyube. Kyube shall have the right to publicly disclose the fact that the Customer is a client of Kyube and in connection therewith shall have the right to use the trade name, trademarks and service marks of Customer (collectively, the “Customer Marks”). Customer grants to Kyube a non-exclusive license to use the Customer Marks for such purpose. Kyube may include a link to Customer's website on the Website. If Customer determines that Kyube is using or displaying the Customer Marks in a manner that is detrimental to Customer's interest, Customer may issue reasonable instructions to Kyube concerning the manner, if any, in which Kyube may continue to use Customer Marks. Kyube shall comply with such instructions or cease the use or display of the Customer Mark in question.
10.2 Public Statements by Customer. Customer shall consult with Kyube before issuing any press release or otherwise making any public statements with respect to this Agreement or any Service provided hereunder and shall not issue any press release or make any such public statement without the prior consent of Kyube, which consent shall not be unreasonably withheld.
10.2 Public Statements by Customer. Customer shall consult with Kyube before issuing any press release or otherwise making any public statements with respect to this Agreement or any Service provided hereunder and shall not issue any press release or make any such public statement without the prior consent of Kyube, which consent shall not be unreasonably withheld.
11. REPRESENTATIONS AND WARRANTIES.
11.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement and consummate the transactions contemplated hereby.
11.2 Customer represents and warrants that (i) it has not provided any false information to gain access to the Service, (ii) its billing information is accurate, (iii) this Agreement, and any information on the Website referenced to or incorporated herein, constitutes the valid and binding agreement of Customer, enforceable against Customer in accordance with its terms and (iv) it has the legal power and authority to provide Kyube with the Data and doing so will not violate applicable law, Customer’s privacy policies or contractual obligations binding upon Customer.
11.2 Customer represents and warrants that (i) it has not provided any false information to gain access to the Service, (ii) its billing information is accurate, (iii) this Agreement, and any information on the Website referenced to or incorporated herein, constitutes the valid and binding agreement of Customer, enforceable against Customer in accordance with its terms and (iv) it has the legal power and authority to provide Kyube with the Data and doing so will not violate applicable law, Customer’s privacy policies or contractual obligations binding upon Customer.
12. INDEMNIFICATION.
12.1 Customer shall indemnify, defend and hold harmless Kyube, Kyube’s parent organizations, subsidiaries, affiliates, and its and their officers, directors, employees, and agents or the foregoing from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a breach of any obligation of this Agreement, including but not limited to a breach of any representation, warranty or covenant.
12.2 Kyube shall indemnify defend and hold harmless Customer, Customer’s parent organizations, subsidiaries, affiliates, and its and their officers, directors, employees, and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a claim alleging that the Service, when used in accordance with the terms of this Agreement directly infringes a copyright or a trademark of a third party.
12.3 In the case of both Section 12.1 and 12.2 above, the party receiving notice of such third party claim shall (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless the other party unconditionally releases the indemnifying party of all liability and such settlement does not affect the other party’s business, and in the case of Kyube, such settlement does not affect the Service); (c) provide to the other party all available information and assistance; and (d) not compromise or settle any such claim without consenting first with the other.
12.2 Kyube shall indemnify defend and hold harmless Customer, Customer’s parent organizations, subsidiaries, affiliates, and its and their officers, directors, employees, and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a claim alleging that the Service, when used in accordance with the terms of this Agreement directly infringes a copyright or a trademark of a third party.
12.3 In the case of both Section 12.1 and 12.2 above, the party receiving notice of such third party claim shall (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless the other party unconditionally releases the indemnifying party of all liability and such settlement does not affect the other party’s business, and in the case of Kyube, such settlement does not affect the Service); (c) provide to the other party all available information and assistance; and (d) not compromise or settle any such claim without consenting first with the other.
13. MISCELLANEOUS.
13.1 Relationship of the Parties. Nothing in this Agreement will be construed to imply a joint venture, partnership, or agency relationship between the parties, and Kyube will be considered an independent contractor when performing services under this Agreement.
13.2 Assignment. Kyube may assign this Agreement. Customer may not assign this Agreement without the prior written consent of Kyube. Any purported assignment in contravention of this section is null and void. A transfer of a controlling interest in the equity of Customer shall be deemed an assignment for purposes of this subsection. Subject to the foregoing, this Agreement will bind and inure to the benefit of any successors or assigns.
13.3 Notices. All notices under this Agreement shall be transmitted to the respective party, shall be in writing, and shall be considered to have been duly given or served when personally delivered to any party, or on the first day after the date of deposit with an overnight courier for next day delivery, postage prepaid, on the third day after deposit in the United States mail or on the fifth day after deposit anywhere else in the world, certified or registered, return receipt requested, postage prepaid; addressed, in all cases, to the address indicated on the first page of this Agreement, Attention: President, or to such other address as such party may hereafter designate, by written notice to the other party.
13.4 Governing Law; Consent to Jurisdiction. ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR PERFORMANCE OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO ITS RULES OF CONFLICT OF LAWS. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in Boston, Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.
13.5 Entire Agreement. This Agreement and the information on the Website referenced herein constitutes the entire agreement between the parties as of the Agreement Date and may only be modified by an instrument in writing signed by authorized personnel of both parties. This Agreement cancels and supersedes any and all prior proposals (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the parties which relate to the subject matter of this Agreement.
13.6 Section Headings. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
13.7 Severability. If any provision of this Agreement is held invalid, all other provisions will remain valid.
13.8 Amendments. We may from time to time amend, supplement or modify the terms and conditions of this Agreement. If we make material changes to this Agreement, we will post an updated version of it and we may provide you with further notice of the changes via email. Notwithstanding the foregoing, it is your responsibility to check this Agreement periodically for changes. Your continued use of the Service following the posting of any updated Agreement constitutes your acceptance to be bound by the terms and conditions of such updated Agreement. Any and all use of the Service after the posting of an updated Agreement will be subject to the terms and conditions of such updated Agreement.
13.2 Assignment. Kyube may assign this Agreement. Customer may not assign this Agreement without the prior written consent of Kyube. Any purported assignment in contravention of this section is null and void. A transfer of a controlling interest in the equity of Customer shall be deemed an assignment for purposes of this subsection. Subject to the foregoing, this Agreement will bind and inure to the benefit of any successors or assigns.
13.3 Notices. All notices under this Agreement shall be transmitted to the respective party, shall be in writing, and shall be considered to have been duly given or served when personally delivered to any party, or on the first day after the date of deposit with an overnight courier for next day delivery, postage prepaid, on the third day after deposit in the United States mail or on the fifth day after deposit anywhere else in the world, certified or registered, return receipt requested, postage prepaid; addressed, in all cases, to the address indicated on the first page of this Agreement, Attention: President, or to such other address as such party may hereafter designate, by written notice to the other party.
13.4 Governing Law; Consent to Jurisdiction. ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR PERFORMANCE OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO ITS RULES OF CONFLICT OF LAWS. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in Boston, Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.
13.5 Entire Agreement. This Agreement and the information on the Website referenced herein constitutes the entire agreement between the parties as of the Agreement Date and may only be modified by an instrument in writing signed by authorized personnel of both parties. This Agreement cancels and supersedes any and all prior proposals (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the parties which relate to the subject matter of this Agreement.
13.6 Section Headings. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
13.7 Severability. If any provision of this Agreement is held invalid, all other provisions will remain valid.
13.8 Amendments. We may from time to time amend, supplement or modify the terms and conditions of this Agreement. If we make material changes to this Agreement, we will post an updated version of it and we may provide you with further notice of the changes via email. Notwithstanding the foregoing, it is your responsibility to check this Agreement periodically for changes. Your continued use of the Service following the posting of any updated Agreement constitutes your acceptance to be bound by the terms and conditions of such updated Agreement. Any and all use of the Service after the posting of an updated Agreement will be subject to the terms and conditions of such updated Agreement.