If any change occurs in your Registry Information, you shall promptly notify us of such change in the way we instruct you.
You shall manage and store your password and user ID for the Services appropriately, at your own responsibility. You may not rent, sell, transfer or otherwise allow a third party to use your user ID and password.
You become fully responsible for, and thus we shall not be liable for, any damage caused by your password or user ID for the Services being used by anyone other than you; provided, however, that this shall not apply if such damage is due to reasons attributable to us.
Upon using the Services, you may not conduct acts that fall under any of the following items:
It is your responsibility to prepare an appropriate work environment that is required to use our Services (including, but not limited to, internet access, hardware, such as personal computers, and software, such as web-browsers) at your own expense and thus we are not responsible for preparing such environment.
Without limiting any other restrictions and limitations in these Terms on your use of the Services, you may not: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble the Services or any content appearing therein except as may be permitted by applicable law; (ii) remove any copyright, trademark or other proprietary notices from any portion of the Services; (iii) sell or resell, license, distribute, leases, transfer, publicly display or perform, stream, transmit, broadcast or otherwise exploit the Services except as expressly permitted by Autify in these Terms; (iv) link, frame or mirror any portion of the Services; (v) interfere with or violate any third party or other user’s right to privacy or other rights, including copyrights and any other intellectual property rights of others, (vi) harvest or collect personal information about other users of the Services or engage in any scraping, indexing, surveying or other data mining of the Services; (vii) interfere with or disrupt the operation and/or functionality of the Services or attempt to gain unauthorized access to or impair any aspect of the Services or its associated systems or networks; (viii) use the Services for any illegal, immoral or unauthorized purpose; or (ix) use the Service for non-personal or commercial purposes without Autify’s express prior written agreement.
We shall not be responsible for any costs, expenses, losses or damages you incur by our action taken in accordance with this Section.
You agree to indemnify, defend and hold harmless Autify and its affiliates and their officers, directors, shareholders, employees, contractors and agents from any claims, demands, losses, costs, liabilities and expenses (including attorneys’ fees) relating to or arising out of (i) your use, or inability to use, the Services; (ii) your breach of any of the Service Agreement or any of these Terms; (iii) your violation of any third party rights or any damages you inflict on any third party in connection with your use of the Services; (iv) Autify’s use of any data or information you provide; (v) your violation of any laws or regulations; or (vi) your infringement or violation of any intellectual property rights or other rights of a third party. You hereby agree to fully cooperate as reasonably requested in the defense of any claim. Autify reserves the right to alone assume the defense and control of any claim that is subject to indemnification by you.
Neither party shall be liable to the other for any failure or delay in the performance of its obligations under the Service Agreement due to causes beyond its reasonable control (including, but not limited to, natural disasters, war (with or without declaration of war), riots, terrorism, serious illnesses, the enactment, amendment or repeal of laws, regulations or rules, acts of governments or governmental agencies, orders issued by public authorities, labor disputes, and system malfunctions that we are unable to reasonably anticipate or avoid; “Force Majeure Event”). However, the foregoing shall not apply to your obligation to pay the service fee.
If you are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Services are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Services and/or the software on which it runs is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Services by the Government shall be governed solely by these Terms.
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Services or any of its software or other documentation or materials in violation of any such restrictions, laws or regulations. By downloading or using the Services and any such software, materials or documentation, you agree to the foregoing and represents and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
The provisions of Sections 7 (Service Fees and Payment Method) (to the extent any amounts are still owing), 8 (Ownership of Rights; Restrictions), 9 (Use of User Information), 13 (Termination of the Agreement and Withdrawal from Membership), 15 (No Warranties for Services; Limitation of Liability), 16 (Indemnification), 23 (Governing Law; Binding Arbitration; Class Action Waiver), and 24 (General) shall survive the termination of the Service Agreement (regardless of the reason for such termination). The provisions of Section 17 (Confidentiality) shall be effective for three (3) years after the termination of the Service Agreement.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND AUTIFY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND AUTIFY FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND AUTIFY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. AUTIFY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
IF YOU ARE A CONSUMER (AS DEFINED BELOW), FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
Governing Law; Jurisdiction. The Service Agreement and these Terms are governed by and shall be construed in accordance with the laws of the State of California, without giving effect to any conflicts of laws principles. Notwithstanding the foregoing, to the extent permitted by applicable law, this Section will be governed by the Federal Arbitration Act, without regard to state or foreign law. Any claim or dispute either of us may have against the other that is not subject to arbitration must be resolved by a court located in San Francisco County, California. We both agree to submit to the personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of litigating all such claims or disputes that are not subject to arbitration.
BINDING ARBITRATION. YOU AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR IN ANY WAY RELATING TO THE SERVICE AGREEMENT, THESE TERMS OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION BETWEEN YOU AND AUTIFY, NOT IN COURT, IN ACCORDANCE WITH THESE TERMS, EXCEPT THAT: (I) EITHER PARTY MAY ASSERT QUALIFYING CLAIMS IN SMALL CLAIMS COURT, AND (II) AUTIFY MAY SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT ACTUAL OR THREATENED INFRINGEMENT OR MISAPPROPRIATION OF OUR IP RIGHTS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, BOTH PARTIES WAIVE ANY RIGHT TO A JURY TRIAL.
Arbitration Procedure (Consumers and Businesses). All claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA. Such rules differ if you are a consumer or a business as further described below.
If you are an individual using the Services for your personal or household use, you are a “Consumer,” and the then-current version of the AAA’s Consumer Arbitration Rules, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and Autify:
(1) YOU AND AUTIFY AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND AUTIFY ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
(2) For any arbitration you initiate, you will pay the consumer filing fee, and Autify will pay the remaining AAA fees and costs. For any arbitration initiated by Autify, Autify will pay all AAA fees and costs.
(3) For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, and (iii) if the parties are unable to agree on a location, such determination will be made by the AAA or by the arbitrator.
(4) If you or Autify submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Autify agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Autify agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
(5) The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
If you are NOT a “Consumer” (as defined above), you are a “Business” and the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and Autify:
(1) YOU AND AUTIFY AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND AUTIFY ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
(2) Any in-person appearances will be held in San Francisco County, California.
(3) The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
(4) You and Autify agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Autify agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
One Year to Assert Claims. To the extent permitted by law, any claim or dispute by you or Autify arising out of the Terms, the Service Agreement or the Services, in each case other than claims related to IP Rights, must be filed within one (1) year after such claim or dispute arose; otherwise, the claim is permanently barred, which means that you and Autify will not have the right to assert the claim.
Opting Out of Arbitration (Consumers Only). You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted these Terms by providing us notice of your opt-out via email at sales-us@autify.com. In order to be effective, the opt-out notice must include your full name, and mailing address, and email address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with the paragraph above entitled ” Governing Law; Jurisdiction.“
Rejection of Future Arbitration Changes. You may reject any change we make to this Section (except address changes) by personally signing and sending us notice within thirty (30) days of the change via email at sales-us@autify.com. If you do, the most recent version of this Section before the change you rejected will apply.
Severability. If any part of this Section including but not limited to the class action waiver above is found to be unenforceable or illegal to all or some portions of a dispute between the parties, then this section will not apply to such portions. In that case, those portions will be severed and resolved in a court of law and the remaining portions shall be resolved by arbitration. If any other provision of this section is found to be unenforceable or illegal, then that provision will be severed and the remainder of this section will continue in full force and effect.
These Terms together with any applicable Service Agreement constitute the entire agreement between you and Autify related to the Services and they supersede all prior or contemporaneous communications, agreements, and proposals, whether electronic, oral or written, between you and Autify related to the Services in their current or any prior form. You may not assign these Terms or the Service Agreement without Autify’s prior written approval. These Terms and the Service Agreement, and the rights, benefits and obligations contained therein, are fully assignable by Autify and will be binding upon and inure to the benefit of Autify’s successors and assigns. No agency, partnership, joint venture, or employment relationship between you and Autify is intended or created by these Terms or any Service Agreement. Any failure of Autify to exercise or enforce any right or provision of these Terms or a Service Agreement shall not constitute a waiver or relinquishment to any extent of such right or provision. Any waiver of any right or provision of these Terms or a Service Agreement must be in writing. Subject to the Severability provision of the “Governing Law; Binding Arbitration; Class Action Waiver” section above, if any part of these Terms or a Service Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed severed and superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. Autify’s provision of the Services and these Terms are subject to laws and legal process and nothing contained in these Terms limits Autify’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Services. The headings in these Terms are for convenience only and have no legal or contractual effect.
If you have questions regarding these Terms, please contact us at sales-us@autify.com.