Terms and Conditions

This Terms and Conditions agreement (“Agreement”) is a legal agreement between you or an entity that you are representing (“you,” “your”) and Scaling Hub (”Scaling Hub,” “we,” “our” or “us”).  This Agreement governs your use of the products and services made available to you by Scaling Hub, including candidate screening, interviewing, health screening, websites, software, hardware, mobile applications, content made available by us, and any other products and services (collectively, the “Services”).  If you are accessing the Services on behalf of an entity (for example, a company, non-profit entity, university, or other business or organization), you represent to us that you have authority to bind that entity to these terms, and that entity accepts these terms, and the term “you” or “your” will apply to such entity.

By using any of the Services, you agree to this Agreement and any other agreements or policies referenced within this Agreement, such as the Privacy Policy and other Separate Agreements (as defined in Section 2 below).  If you do not agree to this Agreement, then you are not allowed to use the Services.

1. Scope of this Agreement and Changes.

(a) We do not intend to offer any Services to children below the age of 18, or to the extent that the Services or their use violate any applicable law or regulation.  Consequently, by using the Services, you warrant and certify to us that (i) you are accessing the Services solely within the United States of America and its territories (US), (ii) you are not receiving any data relating to the Services from outside the US (including from the European Union), and you are not otherwise accessing any data through the Services from outside the US, (iii) you are not transmitting any data relating to the Services, or through the Services, outside the US (including to the European Union), (iv) your age is at least 18 years, and you are not accessing the Services or using the Services on behalf of anyone whose age is under 18 years, and (v) you are not prohibited or restricted from accessing or using any aspect of the Services by any applicable law or regulation.  If at any time you are not in full compliance with all foregoing provisions of this Section, you are in material violation of this Agreement and you must immediately cease all use of, and access to the Services.  

(b) We reserve the right to change this Agreement and each Separate Agreement (as defined in Section 2 below) at any time, and the changes will be effective when the revised Agreement or respectively Separate Agreement is posted by us, or when we notify you by other means consistent with this Agreement.  We may also change or discontinue the Services at any time, in whole or in part.  Your continued use of the Services covered by the modified Agreement or Separate Agreement indicates your agreement to the changes to the respective Agreement or Separate Agreement.  Please review this Agreement and each Separate Agreement on a regular basis, and please remain informed about the evolution of our Services and of this Agreement and each Separate Agreement.

2. Other Services and Other Agreements.

(a) Our Privacy Policy (“Privacy Policy”) is available on our website and may be accessed [here.] [<= Add hyperlink to the Privacy Policy]  By using any of the Services, you agree to our Privacy Policy.

(b) COVID-19 Screening. If you choose to use our COVID-19 screening program (“COVID-19 Program”), you agree to the additional terms and conditions applicable to the COVID-19 Program (the “COVID-19 Program Agreement”).  The COVID-19 Program Agreement governs your use of the COVID-19 Program.  The COVID-19 Program Agreement is available on our website and may be accessed [here.] [<= Add hyperlink to the COVID-19 Program Agreement Module].  To use or participate in the COVID-19 Program, you must accept and agree to the COVID-19 Program Agreement, and your use of, or participation in the COVID-19 Program automatically indicates and constitutes your acceptance of the COVID-19 Program Agreement.

(c) If you have entered or will enter at any time into a different agreement with us that includes an affirmative written or electronic acceptance by you and us (e.g., a Master Services Agreement, a click-through agreement that you accept as part of accessing Services through a portal made available by us, an agreement that allows you to access an Application Programing Interface (API), an agreement that allows you to download or use a software program or Software Development Kit (SDK), etc.) (each a “Dedicated Agreement”), then the Dedicated Agreement will prevail over this Agreement with respect to the Services to which such Separate Agreement applies and to the extent of any conflict with this Agreement.

(d) Each legal agreement entered into by you and us other than this Agreement, including the Privacy Policy, COVID-19 Agreement, and any Dedicated Agreement, is denoted a “Separate Agreement.” 

3. Your License to Use the Services.

(a) The Services are protected by various intellectual property rights, including possibly copyrights, patents and trade secrets.  Subject to your full compliance with this Agreement, we grant you a limited, nonexclusive, nontransferable and non-assignable license, without the right to sublicense, during the term of this Agreement, and you accept such license, to use the Services solely in the form provided by us, and in accordance with any documentation or instructions made available by us and applicable to the respective Services, for as long as you continue to have access to such Services under this Agreement. 

(b) Except as expressly provided in Section 3(a) above, we do not grant you any other license or right, whether by implication, estoppel or otherwise, and we reserve all other rights.

4. Your Data.

(a) As part of using the Services, you may have the opportunity to use the Services to transmit, store or otherwise process content or data that you or parties affiliated with you provide (“Your Data”).

(b) You are responsible for Your Data and for your activities in connection with Your Data, including in connection with uploading, posting, storing, transmitting, processing, downloading, retrieving, or otherwise processing Your Data through or in connection with the Services.

(c) Except to the extent that we expressly notify you in writing that our Services are compliant with specific laws, regulations or standards, and except with respect to laws and regulations with which our Services must inherently comply in the form made available to you under this Agreement, the Services are not designed, rated, validated, audited, approved or otherwise intended to comply with any other law, regulation or standard (“Excluded Regulations”).  For example, unless we notify you otherwise in writing, the aspects of our Services that you access are not compliant with the Payment Card Industry Data Security Standard (PCI DSS), Health Insurance Portability and Accountability Act (HIPAA), or various International Organization for Standardization (ISO) standards). 

(i) For clarification, unless otherwise specified in writing by us, whether directly to you or through an authorized business affiliate of us, we do not intend use of the Services to create obligations under the Health Insurance Portability and Accountability Act, as amended ("HIPAA"), and we make no representations that the Services satisfy HIPAA requirements. If you are (or become) a "covered entity" or "business associate" as defined in HIPAA, you will not use the Services for any purpose or in any manner involving transmission of protected health information to us through the services unless you have notified us of your status as a "covered entity" or "business associate" and received prior written consent to such use from us.  If you are accessing the Services through an authorized business affiliate of ours, different or additional terms may apply.

(ii) You will not use the Services to upload, post, store, transmit, process, download, retrieve, transmit or otherwise process any of Your Data that requires compliance with, or is otherwise subject to any such Excluded Regulation.  You must ensure that Your Data is not subject to, and does not require the Services to be compliant with any Excluded Regulations.  To the extent that you and us have entered into a Separate Agreement under which we assume any obligations with respect to any Excluded Regulations, such Separate Agreement will govern those obligations.

(d) You will retain ownership of Your Data, or to the extent that you do not own specific portions of Your Data, you will retain your rights to such portions of Your Data.  Notwithstanding the foregoing, you grant to us a license: (i) during the term of this Agreement, to provide to you the Services; (ii) during and after the term of this Agreement, to use Your Data in accordance with the Privacy Policy and to otherwise operate, improve, expand and otherwise modify our Services (e.g., to create directories or databases, facilitate business transactions between you and other customers of ours, organize content, make available information about you to other customers of ours in ways consistent with how we make available information about other customers of ours to you, etc.), and (iii) during and after the term of this Agreement, to anonymize Your Data in accordance with applicable laws and regulations and to use Your Data in anonymized form (e.g., after we delete your personally identifiable information (PII), we may retain and continue to use Your Data in anonymized form) to improve, expand and otherwise modify our Services.  The license that you are granting us in the foregoing clauses of this Section is nonexclusive, worldwide and irrevocable.  Further, you warrant to us that by processing Your Data through the Services or otherwise making available to us Your Data in connection with the Services, you have the right, and you have obtained the right from any third parties that may have rights to any of Your Data, to grant to us the license granted in the foregoing clauses of this Section.  Notwithstanding the foregoing, please be assured that we will comply with any laws and regulations applicable while exercising the license granted to us in the foregoing clauses of this Section, including obligations under applicable privacy laws to safeguard your PII, limit use of your PII to the scope of the rights that you grant to us, and delete PII upon your request (in which case we may retain and continue to use Your Data in anonymized format as specified above).  Further information about how we use Your Data is available in the Privacy Policy.

(e) Please review now, and you must continue to review on an ongoing basis our Privacy Policy.  You agree to the Privacy Policy, and to any changes to the Privacy Policy that we may publish from time to time.

(f) You agree that we may use and maintain Your Data and anonymized versions of Your Data according to the Privacy Policy, as part of the Services.  You give us permission to combine Your Data, anonymized versions of Your Data, and other data that we collect about you with data of other users of the Services and/or other services that we operate.  For example, this means that we may use Your Data, anonymized versions of Your Data, other data that we collect about you, and other users' PII or non-identifiable and aggregated data to improve the Services or to design promotions and provide ways for you to compare business practices with other users.  We may access or store Your Data and anonymized versions of Your Data in multiple countries, including countries outside of your own country to the extent permitted by applicable law.  You give us permission to share or publish summary results relating to research data that may involve you and to distribute or license such data to third parties.

(g) Your access to the Services may be granted through a pass-through or shared login process, under which you use your login credentials for a platform operated by another party and we grant you access to the Services through those credentials.  For example, we may make available to you an integration with a platform operated by a third party (e.g., Google, Facebook, etc.), and by using your login credentials from such platform, you may be logged into some aspect of the Services (e.g., through an OAuth or similar process).  Since in this situation the login credentials are processed by a third party and data is transmitted between a third party and our Services, you understand that your login credentials may be compromised, stolen, misappropriated or otherwise corrupted, either on the third party’s platform, in transit, or within the Services.  You consequently assume all responsibility and risk in connection with such pass-through login processes and the use of your login credentials from other platforms, including the risks that (i) access to the Services using credentials from another platform may not work or may not be reliable, (ii) your login credentials from the other platform may be compromised, stolen or lost, and therefore your account for the Services, and/or your account for the services on the other platform, may be compromised or misappropriated and your data (both on the Services and on the other platform) may be corrupted, lost or stolen. 

5. Limitations

(a) You will:

(i) Provide accurate and complete information to us in connection with the Services, and you will keep it updated;

(ii) Use your real name and contact information in your communications with us, in your profile, and in communications through the Services.  Unless we direct you otherwise, it is acceptable for you to use a nickname as long as your real name remains clearly accessible to us and to other users who interact with you through the Services, or who view your profile through the Services.  If you are an entity, you will ensure that your employees and other users authorized by us to access the Services on your behalf also use their real names and contact information in communications with us, in their profiles, and in communications through the Services;

(iii) Use the Services in a professional manner;

(iv) Comply with all laws and regulations applicable to you and Your Data in connection with this Agreement and with the Services.  You will not use or access, and you will not directly or indirectly permit any other party to use or access the Services in a manner that violates any applicable law, regulation or this Agreement.

(v) Archive Your Data frequently.  Unless we have entered into any Separate Agreement under which we assume responsibility for maintaining and storing Your Data, you are responsible for any of Your Data that is lost or unrecoverable.

(vi) Obtain all rights and consents from any third parties that may have rights to any of Your Data, to the extent that such third party rights and consents are needed (1) for you to upload Your Data to the Services, store Your Data in the Services, or otherwise process Your Data through or in connection the Services, and/or (2) for you to grant to us the licenses and other rights that you are granting to us with respect to Your Data under this Agreement (including the Privacy Policy).

(vii) Evaluate, confirm and validate any data that you find, retrieve or process using the Services or within our websites, including information about other entities, information submitted by other users, reviews of products or services, reviews of entities, and any other information that you obtain in connection with the Services.

(viii) Maintaining the Services updated can help with compatibility, security and functionality.  We may update the Services from time to time with tools, utilities, improvements, third party applications, or other general updates or upgrades.  To the extent that any updates or upgrades provided by us to any aspect of the Services require your approval or consent, you will accept and consent to such updates and upgrades, and you will apply the updates and upgrades as specified by us.

(b) Additionally, you will not:

(i) Create a false identity on the Services, misrepresent your identity, create a profile for anyone other than you, or use or attempt to use another account.

(ii) Develop, support or use software, devices, scripts, robots, or any other means or processes (including crawlers, organized teams of humans, browser plugins and add-ons, or any other technology) to scrape the Services or otherwise copy profiles and other data from the Services, except to the extent that such prohibition is not permitted under applicable laws.

(iii) Override any security feature or bypass or circumvent any access controls or use limits of the Service (such as caps on keyword searches, API access limitations, or limits on profile views).

(iv) Copy, use, disclose or distribute the Services in whole or in part, or any information obtained from the Services, whether directly or through third parties (such as search engines), without our consent.

(v) Disclose information that you do not have the consent to disclose (such as confidential information of others (including of your employer if you are an individual)).

(vi) Violate the intellectual property rights of others, including copyrights, patents, trademarks, trade secrets, or other proprietary rights. For example, you must not copy or distribute (except through the available Services sharing functionality) the posts or other content of others without their permission.

(vii) Violate our intellectual property rights or any of our other rights, including, without limitation, (i) copying or distributing our technology, software, data, documentation, learning videos or other materials, except to the extent that we expressly authorize you to do so in writing, or (ii) using our trademarks, logos or brands in any business name, email, or URL, except to the extent that we expressly authorize you to do so in writing.

(viii) Introduce into the Services or otherwise expose the Services to any software viruses, worms, or any other malicious or harmful code.

(ix) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the Services or any related technology that is not open source.

(x) Imply or state that you are affiliated with or endorsed by us without our express consent.

(xi) Rent, lease, loan, trade, sell, resell, sublicense, copy, replicate, or otherwise monetize any aspect of the Services or any data made available through the Services (other than Your Data) without our consent.

(xii) Deep-link to our Services for any purpose other than to promote your profile on our Services, without our consent.

(xiii) Use bots or other automated methods to access the Services, add or download contacts, send or redirect messages.

(xiv) Monitor or evaluate the availability, performance or functionality of the Services for any competitive purpose, or perform or assist any other party to perform any benchmarking on the Services.

(xv) Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Services.

(xvi) Overlay or otherwise modify the Services or their appearance (such as by inserting elements into the Services or removing, covering, or obscuring an advertisement included on the Services).

(xvii) Interfere with the operation of, or place an unreasonable load on, the Services (e.g., spam, denial of service attack, viruses, gaming algorithms).

(xviii) Violate any Separate Agreements in which you may enter in connection with the Services.

(xix) Upload to the Services or otherwise process through the Services any illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage "flaming" others, or criminal or civil liability under any local, state, federal or foreign law.

(xx) Impersonate someone else or falsely represent your identity or qualifications, or violate any other party’s privacy or other rights.

(xxi) Offer or otherwise facilitate through the Services any investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding.

(xxii) Upload or otherwise process through the Services any information, software or content which is not legally yours and without permission from the owner of the respective intellectual property rights.

(xxiii) Provide access to the Services to any other party, or otherwise enable any other party to access any aspect of the Services.

(xxiv) Make the Services available on any file-sharing or application hosting service.

(xxv) Process any content (including Your Data) through the Services, in ways that are illegal or not expressly approved by us.

(xxvi) Process any content (including Your Data) through the Services, to do any of the following: (1) negatively impact the performance of the Services or of the technology and resources that we use to deliver the Services, (2) consume a disproportionate amount of computational power, data storage or data communication volume (e.g., you may not mine a cryptocurrency or otherwise utilize large computational power from the Services without our express and specific approval in writing), or (3) make a disproportionate number of calls to any particular API.

(xxvii) Hack any aspect of the Services, or otherwise seek to obtain access to any aspect of the Services that you have not been expressly authorized by us to access.

(xxviii) Process any content (including Your Data) through the Services to hack any other technology, system, software, device or service, or to otherwise seek to obtain access to any other technology, system, software, device or service that you have not been expressly authorized to access. and/or

(xxix) Post links to third-party websites or services through the Services, unless such links are reasonably relevant to content that you are expressly allowed to process through the Services and you are posting them in good faith.  For example, you must not post links to third party website if your intent is reasonably calculated to generate Search Engine Optimization (SEO) value for that other website and to drive traffic to that website, but you may post such links if you are referencing in good faith a third party publication reasonably relevant to content (e.g., a permissible review) that is properly posted within the Services.  We reserve the right to edit or remove any content, and to edit, remove or redirect any link posted by you or any other user within the Services.

6. Payment.

(a) For any subscription or other payment obligations that you incur with respect to Services that are covered by a Separate Agreement, you will make payments as provided in the respective Separate Agreement.

(b) For any subscription or other payment obligations that you incur with respect to Services that are not covered by a Separate Agreement, the following apply, unless we notify you otherwise in writing:

(i) Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Services.

(ii) You must pay with one of the following:

(1) A valid credit card or debit card acceptable to us;

(2) Sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or

(3) Using another payment option that we approve in writing (e.g., a form of payment that we identify and approve on our website or through a direct communication with you).

(iii) If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse to allow you access to the Services.

(iv) If you do not notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., account updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain to the extent that you have remaining payment obligations under an agreement then in effect between you and us.

(v) We will automatically renew your monthly, quarterly, or annual Services at the then-current rates, unless the Services are cancelled or terminated under this Agreement.

(vi) Additional cancellation or renewal terms may be provided to you on the website for the Services.

7. Access through Mobile Devices.

(a) Use of the Services may be available through a compatible mobile device and may require cellular network coverage. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider.

(b) We make no warranties or representations of any kind, express, statutory or implied as to:

(i) the availability of telecommunication services from your or any other telecommunications services provider and access by you or any other user to the Services at any time or from any location;

(ii) any loss, damage, or other security intrusion of the telecommunication Services;

(iii) compatibility between our Services and your mobile device; and/or

(iv) any disclosure of information to third parties or failure to transmit any data, communications or settings connected with the Services.

8. Additional Terms.

(a) The Services may include a community forum or other social features to exchange content and information with other users of the Services and the public.  We do not support and are not responsible for the content in these community forums.  Please use respect when you interact with other users.  Do not reveal information that you do not want to make public.  Other users may post hypertext links to content of third parties for which we are not responsible.

(b) You give us the right to freely use any feedback that you provide about the Services and the content processed through the Services.  You agree that we may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials.  You grant us a nonexclusive, worldwide, transferable and assignable, sublicensable, irrevocable and perpetual, fully paid-up, royalty free license to use in any way the feedback you provide to us.

(c) We may monitor Your Data.  We may, but have no obligation to, monitor content on the Services.  We may disclose any information necessary to satisfy our legal obligations, protect us or our customers, or operate the Services.  We, in our sole discretion, may refuse to publicly post, remove, or refuse to remove, any of Your Data or other content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.

(d) We do not give professional advice.  Unless specifically included with the Services, we are not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice.  Consult the services of a competent professional when you need this type of assistance.

(e) We may tell you about other services or products provided by us or by other business affiliates of ours.  You may be offered other services, products, or promotions by us or by third parties.  Additional terms and conditions and fees may apply to such services, products, or promotions, and you must observe and comply with such terms, conditions and fees.  With some other such services or products, you may upload or enter data from your account (e.g., names, addresses, login credentials, phone numbers, purchases, credit cards or other forms of payment, etc.) to third parties directly or via the Internet.  You assume the risk that any transactions that you initiate with third parties, whether through the Services or directly with such third parties, may fail or that your data may be lost, stolen, intercepted, or misappropriated.  For transactions with third parties, whether conducted through the Services or directly with such third parties, you will direct your questions and seek refunds directly to and from such third parties.  Unless we agree otherwise in writing, we are not responsible for transactions that you conduct with third parties, whether through the Services or directly with such third parties.

(f) We may send you communications about the Services or other services or products.  You agree that we may send these communications to you via email or by posting them on our websites.

(g) You are responsible for securely managing your password(s) for the Services.  If you know or suspect that anyone other than you knows your password, or if you become aware of any unauthorized access to your account, you must promptly notify us.

(h) You may provide us with your telephone number as part of your customer record or registration or via other methods.  You understand and agree that we may use your telephone number for "multi-factor authentication" ("MFA"), to confirm your identity and help protect the security of your account.  Part of the MFA identity verification process may involve us sending text messages containing security codes to your telephone number.  You agree to receive these texts from us containing security codes as part of the MFA process.  In addition, you agree that we may send text messages, SMS messages, pre-recorded voice messages, and other similar communications to the telephone number you provide for other limited purposes, including: providing you with important critical notices regarding your use of the Services, or fulfilling a request made by you through the Services.

(i) If you opt in, or otherwise agree to allow us to send to you email, text, SMS or other similar communications for marketing or other commercial purposes nor directly related to the Services, you acknowledge and agree that we may continue to send you such communications until you opt out or otherwise revoke your consent.  To opt out or revoke your consent for such communications, you will use the specific methods that we provide to you in connection with the respective communications, or you may contact us at the following address: [optout@[__].com].

(j) You acknowledge that the Services are subject to restrictions under applicable United States of America (USA) export control laws, including USA trade embargoes and sanctions and security requirements, and applicable country or local laws to the extent compatible with USA laws. You agree that you will comply with these laws and regulations and will not export, re-export, import or otherwise make available products and/or technical data in connection with the Services and this Agreement in violation of these laws, directly or indirectly.

(k) We hold various trademarks, and some of our trademarks may be registered in one or more jurisdictions.  You are not permitted to use any of our trademarks without our express written approval.

9. Reviews.

(a) The Services may allow you to post reviews of various aspects of the Services, of content made available through the Services, and/or of Apps (if applicable to you).  The Services may also allow you to post comments on such reviews made by other parties.

(b) Any reviews or comments that you post may be posted under your name as submitted to us for the Services.  If you do not want your name to appear with any reviews or comments, do not post any reviews or comments through the Services.  To be useful to other users, those reviews and comments you post must be made in good faith and after reasonable evaluation of the subject matter that you are addressing. Consequently, you agree that:

(i) You will not post multiple reviews or comments that are reasonably calculated to give the impression that a Service feature, comment or App is more or less popular, or to improperly bias the perception of the respective feature, comment or App.  For example, you will not generate multiple “likes” or endorsements of an App that you own or operate because this would give the impression that the App is more popular than it really and would falsely suggest that multiple users endorsed the App.

(ii) If you post a review of, or comment on, an App that you own or operate, you must disclose your affiliation.

(iii) If you post a review of, or comment on, an App that is owned or operated by a competitor of yours, you must disclose your affiliation.  You must not comment on competitor Apps or comments in bad faith, as much as you don’t want such competitors to unfairly deprecate your Apps or comments.

(c) We reserve the right, in our sole discretion and for any reason at any time, to remove or edit any review or comment in connection with the Services.

(d) Content unrelated to the Services is prohibited without our express written permission, and you must not post such content through or in connection with the Services.  This includes, for example, (i) comments or reviews about our business, stock or employees, (ii) comments or reviews about the business, stock and employees of other companies, or (iii) comments or reviews about unrelated products or services. In addition, reviews and comments may not contain content that:

(i) is inconsistent with the permissible uses contemplated by this Agreement;

(ii) is harmful, threatening, abusive, insulting, harassing, defamatory, libelous, profane, sexually explicit, obscene, or otherwise offensive or objectionable;

(iii) is false, fraudulent or misleading;

(iv) violates applicable law, including any privacy, intellectual property or other rights of a third party, or suggests or encourages unlawful activity;

(v) constitutes advertising or any other form of commercial solicitation; or

(vi) impersonates any other person or entity, including any of our employees.

10. Liability and Disclaimers.

(a) You will indemnify and hold us and Our Affiliated Entities harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as "Claims").  We reserve the right, in our sole discretion and at our own expense, to assume the exclusive defense and control of any Claims.  You agree to reasonably cooperate as requested by us in the defense of any Claims.  “Our Affiliated Entities” means (i) our direct and indirect business affiliates, customers, licensees, users, vendors, investors and shareholders (whether now existing, prospective or future), predecessors, agents, attorneys, advisors, insurers, directors, employees, officers, and any other similar parties, and (ii) any and all of the foregoing’s successors or assigns.

(b) YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS."  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATED ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES.  WE AND OUR AFFILIATED ENTITIES DO NOT WARRANT THAT THE SERVICES AND DATA PROCESSED THROUGH THE SERVICES ARE SECURE, ACCURATE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION.  IF ANY OF THESE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU OR ARE VOID WITH RESPECT TO YOU UNDER ANY APPLICABLE LAWS OR REGULATIONS, THE RESPECTIVE WARRANTIES THAT CANNOT BE EXCLUDED ARE LIMITED TO THE SHORTER OF (A) 90 DAYS FROM THE DATE OF FIRST PURCHASE OR FIRST DELIVERY OF THE SERVICES, AND (B) THE SHORTEST PERIOD PERMITTED BY THOSE LAWS AND REGULATIONS.

(c) WE AND OUR AFFILIATED ENTITIES DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.

(d) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL AND CUMULATIVE LIABILITY OVER THE LIFE OF THIS AGREEMENT, TOGETHER WITH THE TOTAL AND CUMULATIVE LIABILITY OF OUR AFFILIATED ENTITIES OVER THE LIFE OF THIS AGREEMENT, FOR ALL CLAIMS, BREACHES AND ALL OTHER LIABILITIES ARISING OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT, TO YOU AND TO ALL OTHER PARTIES DIRECTLY OR INDIRECTLY AFFILIATED WITH YOU OR WITH THE RESPECTIVE CLAIMS SHALL BE LIMITED AT EACH POINT IN TIME TO THE NET AMOUNT THAT WE RECEIVED FROM YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH POINT IN TIME.  SUBJECT TO APPLICABLE LAW, WE AND OUR AFFILIATED ENTITIES ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; AND (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, DATA CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF PROFITS OR INVESTMENT.  

(e) THE ABOVE LIMITATIONS AND DISCLIMERS IN SECTIONS 10(a), 10(b), 10(c) and 10(d) APPLY EVEN IF WE AND OUR AFFILIATED ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, LIABILITIES, BREACHES OR DAMAGES.  THIS AGREEMENT SETS FORTH OUR ENTIRE LIABILITY, AND THE ENTIER LIABILITY OF OUR AFFILIATED ENTITIES, AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND THIS AGREEMENT.

11. Termination and Suspension. 

(a) We may, in our sole discretion and without notice, restrict, deny, terminate this Agreement or suspend the Services and/or any of your accounts, effective immediately, in whole or in part, for suspicion of fraud, security, illegal activity or unauthorized access issues to protect the integrity of our Services or systems, to comply with our policies or applicable laws and regulations, if you fail to comply with this Agreement, if you no longer agree to receive electronic communications, if you notify us of your decision to terminate this Agreement, or if you request us to close any of your accounts or delete Your Data. 

(b) Upon termination of this Agreement, or upon suspension or termination of your accounts, you must immediately stop using the Services and any outstanding payments will become due immediately.  Any termination of this Agreement will not affect our rights to any payments due to us.  We may also terminate a free or trial account at any time.  Sections 1(a), 1(b), 1(d), 2(a), 3(f), 4(b), 5 (to the extent that you owe us any payments upon expiration or termination of this Agreement), 7(d), 7(e), 7(f), 8(b), 8(c), 8(e), 8(f), 8(h) (to the extent that we need to communicate with you about the Services or this Agreement upon expiration or termination of this Agreement), 8(i), 9(c), 10, 11(b), 12 and 13 will survive and remain in effect even if the Agreement is terminated.

12. Disputes and Applicable Law.

(a) CALIFORNIA STATE LAW GOVERNS THIS AGREEMENT WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.

(b) ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. The Federal Arbitration Act governs the interpretation and enforcement of this provision, and the arbitrator shall apply California law to all other matters.  Notwithstanding anything to the contrary, we may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.  WE AND YOU AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND US ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY.  IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS.  YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS. 

(c) To begin an arbitration proceeding under this Agreement, send a letter requesting arbitration and describing your claim to us at the main address posted on our main website.  Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator under the AAA's rules, which are available at www.adr.org.  Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA's rules, but if you are unable to pay any of them, we will pay them for you (but not your legal fees (if any), which you must pay as part of your arbitration proceedings).  You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.  The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof.  

(d) This Section 12 will survive any expiration, termination or rescission of this Agreement.

(e) You acknowledge and agree that we would not provide to you the Services on the terms and in the form offered to you under this Agreement if you had not agreed to the applicable law, arbitration and waiver of class action rights above in this Section 12.

13. Other Terms.

(a) This Agreement and the Separate Agreements are the entire agreement between you and us with respect to your access to the Services, and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter.  The foregoing does not apply, however, to the extent that we have separately entered into any Separate Agreement with you that expressly supersedes this Agreement, in which case the Separate Agreement will prevail over this Agreement with respect to the Services or other products and services to which such Separate Agreement applies.

(b) If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable.

(c) The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

(d) You cannot assign or transfer ownership of this Agreement to anyone without our written approval, except to the extent that you are an entity and all or substantially all of your stock, assets or business are acquired by another entity, in which case you may assign this Agreement to that entity provided that you give us notice within thirty (30) days after that acquisition.  We may assign or transfer this Agreement at any time, in whole or in part, without notice to you, to any party.