1. CONTRACTING PARTY. Effective April 1, 2015, Delvantage® is the sole contracting party liable for any obligations to you under this Agreement. By continuing visiting the Website, using the Services, and/or making payments for the use of the Website and/or the Services, you agree that the only party liable to you under this Agreement is Delvantage®.
2. DESCRIPTION OF THE SERVICES. The services provided by Delvantage® consist of a Cloud based software as a service (SAAS) featuring software for analyzing data to assist customers in making strategic business decisions; Providing online non-downloadable software that allows customers to review and input data which is analyzed using predictive and prescriptive analytics.
3. ACCESS TO THE SERVICES. The Services, together with the www.delvantage.com website and domain name and any other linked pages, features, content, or application services offered from time to time by Delvantage® (collectively, the “Website”), are owned and operated by Delvantage®. Subject to the terms and conditions of this Agreement, Delvantage® hereby grants you a non-exclusive license, with no right to sublicense, to copy and install certain Delvantage® code on a website you own, control or operate, for the sole purpose of using the Services in connection with such websites. Delvantage® may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or Delvantage® Content (as defined below). Delvantage® may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.
Delvantage® reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Website, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
You represent and warrant to Delvantage® that: (i) you are of legal age to form a binding contract, and you are at least 13 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
4. Delvantage® CONTENT. The Website, the Services, and their contents may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the Website or in the Services, including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the “Delvantage® Content,”) are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Delvantage® Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Delvantage® Content or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
You may download or copy the Delvantage® Content (and other items displayed on the Website or Services for download) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Delvantage® Content. You shall not store any significant portion of any Delvantage® Content in any form. Copying or storing of any Delvantage® Content other than personal, noncommercial use is expressly prohibited without prior written permission from Delvantage® or from the copyright holder identified in such Delvantage® Content’s copyright notice. If you link to the Website, Delvantage® may revoke your right to so link at any time, at Delvantage®’s sole discretion.
5. YOUR CONTENT. In the course of using the Services, you may provide information which may be used by Delvantage® in connection with the Services. You understand that by providing content, materials or information to Delvantage® or in connection with the Services (collectively, “Your Content”), Delvantage® hereby is and shall be granted a nonexclusive, worldwide, royalty free, perpetual, irrevocable, sublicenseable and transferable right to use, process, store, copy, reproduce, reformat, translate, modify and create derivative works of Your Content (including all related intellectual property rights) in connection with Delvantage®’s provision of the Services. For clarity, the foregoing license grant to Delvantage® does not affect your ownership of or right to grant additional licenses to the material in Your Content.
6. YOUR WARRANTY. You warrant, represent and agree that you will not contribute any content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party, (ii) violates any law, statute, ordinance or regulation, (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable, (iv) impersonates any person or entity, including without limitation any employee or representative of Delvantage®, or (v) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Delvantage® reserves the right to remove any content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content or if Delvantage® is concerned that you may have breached the immediately preceding sentence), or for no reason at all.
7. RESTRICTIONS. You are responsible for all of your activity in connection with the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the Services. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Website, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services.
You acknowledge that all Delvantage® Content and Your Content (together, “Content”) accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Under no circumstances will Delvantage® be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, including without limitation reports generated by the Services, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services. You, not Delvantage®, remain solely responsible for all Content, including messages, that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services. You acknowledge and agree that your indemnity obligation in Section 11 also applies to any third party claims relating to your disclosure of any third party personally identifiable information or the tracking of visitors (including without limitation your end user customers) on your website.
8. WARRANTY DISCLAIMER. You acknowledge that Delvantage® has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Delvantage® from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites or applications containing information that some people may find offensive or inappropriate. Delvantage® makes no representations concerning any content contained in or accessed through the Services, and Delvantage® will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. Delvantage® makes no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. THE SERVICES CONTENT, WEBSITE AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Delvantage® OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
10. REGISTRATION AND SECURITY. As a condition to using some aspects of the Services, you may be required to register with Delvantage® and set a password and user name (“User ID”). You shall provide Delvantage® with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a User ID a name of another person with the intent to impersonate that person; or (ii) use as a User ID a name subject to any rights of a person other than you without appropriate authorization. Delvantage® reserves the right to refuse registration of or cancel a User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
11. INDEMNITY. You will indemnify and hold Delvantage®, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the Services, use of the Services, your violation of this Agreement or applicable laws, rules or regulations in connection with your use of the Services, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL Delvantage® OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE WEBSITE OR THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF $100 OR THE FEES PAID BY YOU FOR THE SERVICES DURING THE 6-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND Delvantage®’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
13. FEES AND PAYMENT. Delvantage® reserves the right to require payment of fees for certain or all Services. You shall pay all applicable fees, as described on the Website, or email, or postal in connection with such Services selected by you. Delvantage® reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Website. Your use of the Services following such notification constitutes your acceptance of any new or increased charges. Any fees paid hereunder are non-refundable.
14. TAXES. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, VAT, GST, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. All prices, fees and other charges payable under this Agreement or agreement ancillary to or referenced by this Agreement, shall not include any Taxes. You agree to bear and be responsible for all such Taxes. You shall make all payments required without deduction of any Taxes, except as required by law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, Delvantage® receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. If you are a tax-exempt entity or claims exemption from any Taxes under this Agreement, you shall provide a certificate of exemption upon execution of this Agreement and, after receipt of valid evidence of exemption, Delvantage® shall not charge you any Taxes from which it is exempt. Without limiting the foregoing, all references to payments made in this Agreement are exclusive of any VAT, GST or other consumption taxes (collectively, “VAT”) chargeable and where required by law, VAT shall be itemized at the rate applicable, if any, and paid in addition thereto. You shall communicate to Delvantage® your VAT identification number(s) attributed by (i) the country where you have established your business, and/or (ii) any other country where you have established a fixed establishment, to which the Services under this Agreement are provided. Delvantage® shall consider the Services under this Agreement to be for your business use and provided to the location(s) of you in accordance with the provided VAT identification number(s). You shall comply with all applicable tax laws and regulations, and you shall provide Delvantage® all necessary assistance to facilitate the recovery or refund of any VAT paid by Delvantage® in relation to the Services to the respective government or authority. You hereby agree to indemnify Delvantage® for any Taxes and related costs paid or payable by Delvantage® attributable to Taxes that would have been your responsibility under this section if invoiced to you. You shall promptly pay or reimburse Delvantage® for all costs and damages related to any liability incurred by Delvantage® as a result of your non-compliance or delay with its responsibilities herein. Your obligation under this section shall survive the termination or expiration of this Agreement.
15. THIRD PARTY WEBSITES. The Services may contain links to third party websites or services (“Third Party Websites”) that are not owned or controlled by Delvantage®. When you access Third Party Websites, you do so at your own risk.
16. TERMINATION. This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services at any time. Delvantage® may terminate or suspend your access to the Services or your membership at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your membership. Delvantage® may also terminate or suspend any and all Services and access to the Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to use the Services, access the Website, and any Content will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
17. MISCELLANEOUS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Delvantage®’s prior written consent. Delvantage® may transfer, assign or delegate this Agreement and its rights and obligations without consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Delvantage® in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.
18. ARBITRATION; GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco Orange County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Central District of California. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND Delvantage® ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
19. CONTACT. If you have any questions, complaints, or claims with respect to the Services, you may contact us at firstname.lastname@example.org.
Effective: April 1, 2015