IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SITE.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 8.2) TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.1 Account Creation.
In order to use certain features of the Site, you must create or configure an account (“Account”) and provide certain information about yourself if prompted. You represent and warrant that: (a) all account information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by contacting Semsee. Semsee may suspend or terminate your Account in accordance with Section
1.2 Account Responsibilities.
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Semsee of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Semsee cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. Access to the Site
Subject to these Terms, Semsee grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your own personal, noncommercial use.
(a) You shall use the Service only in conformity with its applicable documentation. You shall not, and shall not permit any of your employees or contractors to, share any account or access credentials for the Service with third parties or among colleagues and co-workers. You shall establish appropriate security measures, consistent with industry standards, to protect the Service from unauthorized use. You shall notify Semsee immediately of any actual or alleged unauthorized use of the Service.
(b) You shall not (and not allow, permit, authorize, or assist any third party to): (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any part of the Service; (ii) use or integrate the Service, or any component thereof, with any software, hardware, or system other than the Customer Systems (as defined below) without Semsee’s expres s prior written agreement; (iii) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or include any part of the Service in a service bureau or outsourcing offering, or encumber the Service with any lien or grant a security interest in the Service; (iv) publish or otherwise disclose to any third party any results of any benchmark or other performance tests of the Service; (v) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (vi) copy, frame, or mirror any part of the Service; (vii) access the Service for the purposes of monitoring its availability, performance, or functionality; (viii) access, or use any materials, content, technology, information, or data available via or forming a part of the Service in order to build a competitive product or service, or copy any features, functions, or graphics of the Service; (ix) attempt to disrupt, degrade, impair, or violate the integrity or security of the Service, including, without limitation, by executing any form of network monitoring; (x) use the Service to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; or (xi) take any action that imposes, or may impose, in Semsee’s sole discretion, an unreasonable or disproportionally large load on Semsee’s infrastructure.
2.3 Changes to Service.
You understand and agree that Semsee may change or discontinue the Service or change or remove functionality of the Service at any time in Semsee’s sole discretion with or without notice to you. Semsee will use commercially reasonable efforts to notify you of any material change to or discontinuation of the Service. You agree that Semsee will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
2.4 Customer Systems.
You acknowledge and agree that Semsee will have no obligation to provide you with any support or maintenance in connection with the Site. You are solely responsible for the operation and maintenance of the Customer Systems, and Semsee disclaims all warranties, express or implied, and shall have no liabilities to you, arising from or related to the operation or maintenance of the Customer Systems or any incompatibilities, faults, defects, or damage attributable thereto. “Customer Systems” means any server systems, mobile devices, personal computers or other equipment owned, operated, or managed by you on which the Service is accessed.
All data submitted by you to Semsee in connection with the Services is and shall remain your property. It is understood that data that Semsee deems necessary to support the work conducted by Semsee are excepted from this provision and such data will be retained by Semsee. Semsee shall (i) treat all non-anonymized data as confidential, (ii) not use such data except to exercise its rights and perform its obligations under these Terms, and (iii) not disclose such data to any third party (other than an affiliate) without your written consent. Except for the rights expressly granted in these Terms, Semsee retains all right, title, and interest, including all intellectual property rights, in and to the Service and its documentation, including Resultant Data (as defined in Section 2.6 herein). Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights. No implied license or right is granted by Semsee by estoppel, reliance, or otherwise.
2.6 Resultant Data.
Notwithstanding anything to the contrary in this Agreement, Semsee shall have the right to collect, analyze, and use data (including for anonymized advertising) and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (collectively, “Resultant Data”), and Semsee will be free (during and after the term of this Agreement) to (i) use such Resultant Data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Semsee offerings, and (ii) disclose such Resultant Data solely in aggregate or other de-identified form.
You agree to indemnify and hold Semsee (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms or (c) your violation of applicable laws or regulations. Semsee reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Semsee. Semsee will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You hereby release and forever discharge Semsee (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SERVICE IS PROVIDED BY SEMSEE “AS IS,” AND NEITHER SEMSEE NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE, AND SEMSEE HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. SEMSEE DOES NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET YOUR REQUIREMENTS, OR BE SECURE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
6. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN NO EVENT WILL SEMSEE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, SECURITY OR DATA BREACH, LOSS OF REVENUE OR PROFIT OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SEMSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SEMSEE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED $100. THE DISCLAIMERS AND LIMITATIONS IN SECTION 5 AND THIS SECTION 6 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
7. Term and Termination.
7.1 Term. Subject to this Section, these Terms will remain in full force and effect while you use the Site (the “Term”). We may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. Semsee will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account.
7.2. Effect of Termination; Survival. Upon expiration or termination of these Terms, all rights granted to you hereunder shall terminate and you shall not, and shall not attempt to, access or use the Service. The provisions of Sections 2.2–2.6, and 3–8 shall survive any expiration or termination of these Terms.
8.1 Changes. Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.
8.2 Dispute Resolution.
(a) Applicability. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms or the use of the Service that cannot be resolved informally or in small claims court shall be resolved by binding arbitration through the American Arbitration Association under its Commercial Arbitration Rules.
(b) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this arbitration provision, to enforce an arbitration award, or to seek injunctive or equitable relief.
(c) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to arbitration.
8.3 Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Semsee, or any products utilizing such data, in violation of the United States export laws or regulations.
8.4 Electronic Communications. The communications between you and Semsee use electronic means, whether you use the Site or send us emails, or whether Semsee posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Semsee in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Semsee provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
8.5 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Semsee is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Semsee’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Semsee may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
8.6 Amendments. Semsee may amend these Terms at any time by reasonable notice, including, without limitation, by posting revised terms on its website at the URL www.semsee.com, which amended Terms shall be binding upon you.
8.7 Copyright/Trademark Information. Copyright © 2020 Semsee Corp. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.