These Terms of Service (“ToS”) apply to three types of users of WarWire’s (“our”) service:
(1) Companies and organizations (“Customers”), (2) administrative users who bear responsibility on behalf of a Customer for the registration of authorized users, user ID issuance and cancellation, and other administrative tasks (“Administrative Users”), and (3) individuals that an Administrative User has authorized to use the Service on behalf of a Customer (“Authorized Users”). We use the term “you” where the context does not require a distinction between Customers, Administrative Users and Authorized Users.
By registering for an account or using our service defined below in any manner, you agree to comply with and be bound by these online ToS.
If you are the Administrative User that registers a WarWire account on behalf of a Customer, you represent that you have the authority to bind the Customer to these ToS which, together with any online or written order form completed by you or the Customer, form a binding legal agreement between us and the Customer with respect to the ordered service.
If you have executed a separate written agreement with us, to the extent that written agreement conflicts with these ToS, that agreement controls. To the extent the written agreement does not conflict, these terms apply as a supplement to the agreement.
If you do not agree to be bound by these ToS, please quit the account registration process, in which case you are not permitted to and shall not access the Service.
When used in these ToS, the capitalized terms have the following meanings:
1.1 “Administrative User” means an Authorized User who is responsible for managing and administering User Accounts on behalf of a Customer.
1.2 “Agreement” means the legal contract formed between WarWire and Customer as provided herein, consisting of these ToS and the applicable Order Form(s).
1.3 “Affiliates” means entities controlled by, controlling or under common control with Customer.
1.4 “Applicable Laws” means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state or national) that are applicable to or enforceable against a party or its personnel in relation to their activities under or pursuant to this Agreement.
1.4 “Authorized Purpose(s)” means those purposes set forth on our website, including the applicable User Materials, or in an Order Form describing the purposes for which you may use the Service and associated Content.
1.5 “Authorized User” means an individual user of the Service who has received a User ID from us or the Administrative User of his or her company or organization.
1.6 “Confidential Information” means: information of or relating to us or you, or affiliates, subsidiaries, customers, vendors, suppliers, service providers or licensors thereof, that is (i) competitively sensitive material not generally known to the public, including information that relates to past, present or future research and development, trade secrets, products and services, search parameters, pricing, marketing, financial matters, or business affairs, policies, procedures, plans, methods of operation, specifications, manuals, programs, documentation, guidelines, procedures, forms, and report formats, systems, networks, computer equipment and software proprietary to or licensed by a party, object or source code, custom software modifications, software documentation and training aids, data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein, specifications, manuals, programs, documentation, reports, report formats, and other tangible or intangible material; and (ii) Personally Identifiable Information.
1.7 “Content” means any text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other copyrighted materials or materials subject to copyrights.
1.8 “Data” means all information, records, files, and data entered into, received, processed, or stored by or for you when using the Service, including information comprising or concerning Content.
1.9 “Data Privacy and Security Laws” means all applicable federal, state, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, of or by any United States federal or state government entity, or any authority, department or agency thereof governing the privacy, data protection and security of Personally Identifiable Information and security breach notification relating to Personally Identifiable Information and any other laws in force in any jurisdiction (regulatory or otherwise) in which the Service is being utilized, including Title V of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338), as may be amended from time to time, and its implementing regulations, and the “Interagency Guidelines Establishing Standards for Safeguarding Customer Information” (Exhibit B to 12 CFR Part 364) (collectively referred to herein as “GLBA”).
1.10 “WarWire” and the terms “us,” “we” and “our” refers to WarWire, Inc., a Delaware corporation.
1.11 “WarWire Content” means Content owned by or licensed to us and made available to you through the Service or on our website.
1.12 “Including” (and its derivative forms, whether or not capitalized) means including without limitation.
1.13 “Loss” or “Losses” means all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including taxes, interest and penalties.
1.14 “Order Form” means either (i) a written order form prepared by us and signed by an authorized representative of Customer, or (ii) an online order form presented by us and completed by an Authorized User, and that sets forth the specific information relating to the products and services you have the right to receive, the fees payable to us and the initial term, and which may include, without limitation, (i) identification of any Services other than the SAAS Service, (ii) any additional Authorized Purposes for which you may access the Services, (iii) any terms on which User IDs may be shared, and (iv) any provisions applicable to renewal terms.
1.15 “Personally Identifiable Information” means all individually identifiable information provided to the Service by you or otherwise accessed by you through the Service that is subject to the protection of Data Privacy and Security Laws including: (i) any “Non-Public Personal Information” as such term is defined in GLBA, (ii) any individually identifiable information (including demographic information) relating to a person’s health, to the health care provided to a person, or to payment for health care (collectively, “Personal Health Information”), (iii) information subject to Section 628 of the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) and any interpretive regulations issued by the Fair Trade Commission (“FCRA”) and any regulations or guidelines adopted thereunder including, (iv) “Sensitive Customer Information” as that term is defined in the Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice, 70 Fed. Reg. 15736 (March 29, 2005) (“Guidelines”), (v) any “personal information” (or its equivalent) subject to the protection of applicable security breach laws and (vi) any “personal data” subject to applicable Data Privacy and Security Laws.
1.16 “Service” means access and use, via the Internet, of the WarWire “software-as-a-service” functionality described in the applicable Order Form or on our website.
1.17 “Services” means the Service, together with related Support Services and any other associated services we provide, but “Services” does not include any Social Media Content.
1.18 “Social Media Content” means Content obtained from the Internet through the Service, including links, posts and excerpts, and derivative works made from them.
1.19 “Subscription Term” means the time period for which a Customer has subscribed for the Service, as indicated on the Order Form.
1.20 “Support Services” has the meaning set forth in Section 4.
1.21 “Trial User” means an Authorized User to whom we have granted the right to access and use the Service at no charge during a free evaluation trial period established by us in our discretion.
1.22 “Update” means any improvement, enhancement, modification and/or changes to the Service we offer or provide.
1.23 “User ID” means a unique user identification assigned to an Authorized User; provided however that if your Order Form provides express conditions upon which User IDs may be shared, User IDs may be shared subject to those conditions.
1.24 “User Materials” means any online help files or written instructions regarding use of the Service.
2.1 Access. Subject to your continuing compliance with this Agreement and payment of any applicable fees, we grant to you a nonexclusive, personal and nontransferable right to access and use the Service and associated WarWire Content during the Subscription Term for the conduct of the business of Customer and its Affiliates. Your right to use the Service is limited to any parameters specified in the applicable Order Form, including the number of Authorized Users and Authorized Purposes.
2.2 Trial Accounts. In our sole discretion, we may grant a party the right to access and use the Service as a Trial User at no charge for a specified time period. At the expiration of the trial period, the Trial User’s access to the Service will be terminated unless it pays the applicable subscription fee and becomes a Customer. Only a single trial account will be granted for a given email address. We have no duty to provide trial accounts and have no liability to anyone for failing to offer a trial account or for terminating a Trial User’s trial period, with or without notice.
2.4 Content. The Service is a productivity tool designed to make it easier for users to search for, find, manage and use Social Media Content of interest that is accessible through the Service. We do NOT claim or convey any ownership rights in any Social Media Content accessed or made available through the Service. You acknowledge and agree that we are not responsible for reviewing Social Media Content and that we have no rights to control Social Media Content. As between you and us, you are solely responsible for (i) obtaining any authorizations, consents, releases, and permissions that are necessary or desirable for your use, re-use and/or dissemination of Social Media Content accessible through the Service, and (ii) ensuring that your use, re-use and dissemination of Social Media Content (whether alone or in combination with other Social Media Content or data) is in compliance with Applicable Laws and the terms of service of the website(s) from which the applicable Social Media Content is obtained or derived. As between you and us, you are solely responsible for payment of any royalties, fees, and any other monies owing any person by reason of Social Media Content you access or receive through the Service, and for any liabilities including fines and penalties for improper use. Some Content accessible through the Service may be indecent, offensive, inaccurate or otherwise objectionable or unlawful; nonetheless we have no obligation to preview, verify, flag, modify, filter or remove any Content. We may remove or disable access to any Content at our sole discretion, but are not responsible for any failures or delays in removing or disabling access to any Content, including Content that may be considered harmful, inaccurate, unlawful or otherwise objectionable.
2.5 RISK AND RESPONSIBILITY. As between you and us, you are solely responsible for use of the Service and Content accessible through the Service by your users, and such use is at your sole risk and expense. You are solely responsible for any information or services that you provide to others that are based on or involve the use of the Service or Content, including ensuring the accuracy, authenticity, completeness and compliance of Social Media Content with Applicable Laws and the terms of service of the website(s) from which the Social Media Content is obtained or derived, and for all related liabilities and responsibilities. Neither you nor any other person has the right to assert any claim or cause of action against us as a result of or in connection with the use of (or inability to use) the Service or any Content. You acknowledge that violation by your users of Applicable Laws (including, without limitation, Data Privacy and Security Laws) or the terms of service of the website(s) from which the applicable Social Media Content is obtained or derived or any third party rights is a breach of your contract with us and that you are liable to us for Losses that result.
2.6 Restrictions. Except with our prior written consent, which we may grant or withhold in its sole discretion, you shall not, in whole or in part, (a) copy or distribute copies of the Service or User Materials to any third party; (b) modify, adapt, translate, reverse engineer, make alterations to, decompile, disassemble or make derivative works of the Service or User Materials (except to the extent otherwise expressly permitted by Applicable Laws); (c) rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Service to third parties; (d) use the Service or any User Materials to act as a service bureau or application service provider, or to permit access to the Service or any User Materials by any third party; (e) use the Service or Content available through it for any illegal, unauthorized or injurious purpose; (f) use Social Media Content in violation of the terms of service of the website(s) from which it was obtained or derived; or (f) re-use, disseminate, copy, or otherwise use the Service or Content available through it in a way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of ours or of any third party.
2.7 No Interference with Service Operations. You agree not to take any action that does or attempts to: (a) interfere with the proper working of the Service; (b) circumvent, disable, or interfere with security-related features of the Service or features that prevent or restrict use, access to, or copying of any Content or Data or that enforce limitations on use of the Service, Content or Data; or (c) impose (or which we determine in our sole discretion may impose) an unreasonable or disproportionately large load on the Service infrastructure.
2.8 Right to Suspend or Terminate the Service. We reserve the right to immediately suspend or terminate your ability to access and use the Service and/or to remove or restrict access to any Content from the Service if we have reason to believe that your use of the Service or associated Content is or is likely to become non-compliant with any Applicable Laws, the terms of service of the website(s) from which the Social Media Content is obtained or derived, regulation or policy, or is or is likely to become the subject of a lawsuit or material dispute.
2.9 Future Access to Content Not Guaranteed. You are advised that, for most Content, the Service is designed to store links to locations where the Content is hosted on third-party websites that we do not own or control, instead of storing the raw Content on our servers. We do not guarantee that any specific Content will remain available and accessible to you in the future. Consequently, we encourage you to maintain your own backups of any Content you may wish to access or use in the future, to the extent you are permitted to do so by the terms of service of the website(s) from which the applicable Social Media Content is obtained or derived and/or the Content’s publisher or author, as required by such terms of service and the Applicable Laws.
2.10 Restriction of Access to Content. Although we normally will only restrict access through the Service to Content that we deem inconsistent with this Agreement, we reserve the right to restrict access through the Service to any Content, for any reason, with or without prior notice.
2.11 Use by Law Enforcement. You and your Authorized Users shall not use the Services in a law enforcement capacity to conduct surveillance or obtain information that would require a subpoena, court order, or other valid legal process.
3.1 Number. Customer is responsible for ensuring that only Authorized Users access the Service through the password assigned to them. The number of Customer’s Authorized Users who are granted access to the Service is as stated in the applicable Order Form.
3.2 User IDs. Except as expressly provided in an Order Form, each Authorized User must have a unique User ID for his or her access to the Service; User IDs cannot be shared. However, User IDs may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Service.
3.3 Administrative User. At least one Authorized User of Customer must be designated to act as its Administrative User. The Administrative User is responsible, on behalf of Customer, for registration of Authorized Users, User ID issuance and cancellation, and other administrative tasks related to Customer’s use of the Service. If Applicable Laws require the consent of the Authorized User before a third-party receives particular information about him or her (personal information), the Administrative User shall obtain the Authorized User’s consent before providing such information to us.
3.4 Additional User IDs. Unless otherwise specified on the applicable Order Form: (a) the Service may not be accessed by anyone other than Authorized Users; (b) User IDs may be purchased for additional Authorized Users (for which the subscription fees will be prorated during the remaining master Subscription Term); and (c) such additional Authorized User accounts will terminate on the expiration date of the master Subscription Term.
4.1 Support Services. We provide during business hours, at no additional charge, reasonable support for the Service that does not require programming code changes (“Support Services”). We may also offer enhanced support for an additional fee.
4.2 Scheduled Maintenance. We reserve the right to take down applicable servers hosting the Service to conduct routine maintenance (“Scheduled Maintenance”). We use commercially reasonable efforts to perform Scheduled Maintenance outside of regular business hours in the U.S. We are not responsible for any damages or costs incurred by Customer due to unavailability of the Service during Scheduled Maintenance.
5.1 Registration Information. You must provide to WarWire the current and accurate name, contact information and other information specified on our forms to register each Authorized User to use the Service (collectively, the “Registration Information”). We are not liable for the accuracy, authenticity, completeness or authenticity of Registration Information and have no obligation or responsibility to audit, check or verify any Registration Information you provide.
5.2 Account Security. You are entirely responsible for maintaining the confidentiality of User IDs and passwords assigned to you and for any and all activities that occur in association with your account, whether or not you authorize each separate use. You agree (a) that only a single individual shall use a User ID unless otherwise expressly provided in the Order Form, in which case User IDs shall be shared only in compliance with the conditions in the Order Form.; (b) to adopt and maintain security precautions for your User IDs to prevent their disclosure to and use by unauthorized persons; (c) to notify us promptly if the security or integrity of a User ID or password has been compromised, and in any case within one business day of such unauthorized disclosure; and (d) to notify us immediately of any unauthorized use of your account or any other breach of WarWire’s security and to provide properly documented evidence as we request. You agree that we will not be liable for any loss you may incur as a result of someone else using a User ID, password, Registration Information or other account information assigned to you, either with or without your knowledge or permission. You further agree that you will be liable for any and all losses incurred by WarWire or a third party, due to someone else using your User ID, password or Registration Information.
5.3 Service Activation and Ongoing Access. You will cooperate with WarWire in the set-up and activation of the Service for your use. You are responsible for furnishing and bearing the costs of your own Internet access and all necessary communications equipment, including software, hardware and internet connectivity necessary to access and use the Service in a secure manner. Access methods and equipment used by you must conform to any published WarWire specifications and requirements. You are responsible for the security of your own computer systems and the security of your access to and connection with the Service. Any transmission method used must conform to our specifications and requirements. We shall not be liable or responsible for any loss or delay of Data, reports or any other information that pertains to you or the Service.
5.4 Access and Use of the Service Outside the U.S. As between you and WarWire, you are solely responsible for compliance with Applicable Laws relevant your use or access of the Service while outside the U.S.
5.5 No Liability for Access by Minors. You acknowledge that use of the Service by minors may be prohibited by Applicable Laws and the terms of service of the website(s) from which the applicable Social Media Content is obtained or derived. We are not responsible for determining the age of Authorized Users. You take full responsibility for ensuring that your Authorized Users are not minors.
6.1 Fees. Fees for the initial Subscription Term are based on the billing plan and number of Authorized Users selected by Customer and are set forth in the Customer’s Order Form. Customer agrees to pay for the Services in accordance with the Order Form, which specifies the payment terms.
6.2 Taxes. The stated fees do not include taxes. You are responsible for paying or reimbursing us for all applicable taxes associated with this Agreement or the Services (other than taxes based on our gross receipts or net income).
6.3 Credit Card Information. If you provide us with credit card information, you authorize us to store the information and use it to charge the associated billing source according to the billing plan and number of Authorized Users selected for your subscription. For monthly billing plans, you authorize us to charge the billing source each month without further authorization until the Customer’s subscription is terminated. If the billing source you provide declines any charge, we will notify you at the email address provided in your Registration Information. If you do not provide a valid billing source to us within 3 business days of this notice, we may terminate your access to the Service. Even after access to the Service is terminated, you will still have access to the WarWire website, where you can access your account and restore access to the Service by providing a proper billing source. After your access to the Service is terminated, we may keep your current Registration Information and Service settings on file for 90 days. However, we reserve the right to remove your Registration Information and Service settings from its files with NO liability or notice to you.
6.4 Credit Card Charge-Backs. We have a zero-tolerance policy regarding credit card fraud and charge-backs. If you use a credit card to purchase a subscription to the Services and then start a charge-back process regarding such purchase, we reserve the right to immediately terminate your account, in which case, the credit card number will no longer be accepted in our systems. Should we do this, you may never again be able to use that account and credit card with WarWire.
7.1 Term of Agreement. This Agreement is in effect during the Subscription Term unless sooner terminated as provided herein.
7.2 Early Termination. You may terminate your account with us at any time; however, unless we are in breach of this Agreement and do not cure said breach within thirty (30) days of receiving written notice from you of the breach, identifying specifically the nature of the breach, you are not entitled to any refunds. We may terminate your account without notice or refund to you if you violate this Agreement; in such case we reserve the right to remove your account information along with any software settings from our servers with NO liability or notice to you.
7.3 Effect of Termination. Upon the expiration or termination of this Agreement, we may, in our discretion keep your Registration Information and Service settings on file for 90 days, or may destroy your account information, account settings and your Data residing on our systems without further notice.
8.1 Service. We are and remain the exclusive owner of all right, title and interest in and to the Service, Updates, User Materials, our Confidential Information, and all other WarWire work product and/or other materials provided or accessible to you in connection with this Agreement, including all intellectual property rights therein.
8.2 Data. You grant to us a non-exclusive license, during the term of this Agreement, to use the Data for the purposes of performing our obligations under this Agreement. Subject to the foregoing license, you retain all intellectual property and other rights that you may have in the Data.
8.3 Feedback. To the extent that we receives any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Service or any other products or services (“Feedback”) from you, you hereby assign and grant us ownership to use, disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other products and services.
9.1 Obligations. The parties acknowledge that use of the Service requires disclosure by each party (“Disclosing Party”) to the other party (“Receiving Party”) of certain of the Disclosing Party’s Confidential Information. With respect to Confidential Information of the Disclosing Party that is disclosed to the Receiving Party, the Receiving Party shall, subject to the exceptions stated herein:
a. maintain and protect the confidentiality of the information with the same care and measures to avoid unauthorized disclosure or access as the Receiving Party uses with its own Confidential Information, but in no event less than a reasonable standard of care;
b. use the information solely to carry out the purposes for which the information was disclosed; and
c. limit access to the information to: representatives of the Receiving Party or of its Affiliates who have a need to know to facilitate, monitor or review the delivery, receipt or performance of the Service in our case, or to carry out the Authorized Purpose(s) in your case. Any of the foregoing representatives to whom the Receiving Party discloses information must be under a legally binding obligation to maintain the confidentiality of the information. The Receiving Party shall remain responsible to the Disclosing Party for such acts or omissions of its representatives that if committed by the Receiving Party would constitute a violation of the Receiving Party’s confidentiality obligations hereunder. Nothing herein shall be construed to authorize the disclosure of Personally Identifiable Information if such disclosure will violate any Data Privacy and Security Laws or any other Applicable Laws.
9.2 Exceptions. Subject to the requirements of applicable Data Privacy and Security Laws, the Receiving Party shall not be in violation of this Agreement for:
a. disclosing Confidential Information of the Disclosing Party that (i) is or becomes publicly available other than as a result of a breach of this Agreement, (ii) is disclosed to the Receiving Party by a third party not subject to any obligation of confidentiality, (iii) is excluded from a party’s obligations of confidentiality under another agreement between the parties, or (iv) was independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party; or
b. disclosing Confidential Information of the Disclosing Party to the extent required to do so by (i) federal or state regulatory agencies, or (ii) a federal or state law or regulation, or a subpoena or court order or agency action that requires disclosure, provided, however, that, if disclosure of Confidential Information is required, the Receiving Party shall, unless prohibited by law, regulation or court or agency order, promptly notify the Disclosing Party and, at the Disclosing Party’s request and expense, cooperate with the Disclosing Party’s efforts, if any, to prevent or limit the disclosure.
9.3 No License; Return of Information. Nothing in this Section 9 shall be construed as a grant or assignment of any right or license in the Disclosing Party’s Confidential Information. The Disclosing Party’s Confidential Information shall at all times remain the property of the Disclosing Party. At any time the Disclosing Party reasonably requests, and in any event upon the termination or expiration of this Agreement, the Receiving Party shall, at the election of the Disclosing Party, promptly return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, retaining no copies, or certify in writing to the Disclosing Party that the Confidential Information has been destroyed. If the destruction or return of backup copies is infeasible, the protections of this Section 9 shall continue to apply as to all such backups.
10. Ownership. Except as expressly provided herein, no ownership rights are conveyed by this Agreement. As between the parties, all Data and your Confidential Information are and shall remain your sole property. As between the parties, all WarWire Confidential Information is and shall remain our sole property. You hereby acknowledge and agree that the Service and WarWire’s Confidential Information constitute and contain our valuable proprietary products and trade secrets, embodying substantial creative efforts and confidential information, ideas, and expressions. This Agreement in no way limits or restricts us or our affiliates from developing or marketing any modification, enhancement, interface, upgrade or change, software, source code, blueprints, diagrams, flow charts, specifications, functional descriptions or training materials without payment of any compensation, or delivery of any notice, to you.
11. Remedies and Responsibilities. The Receiving Party acknowledges that the Disclosing Party has the right to take all reasonable steps to protect the Disclosing Party’s Confidential Information, including without limitation, seeking injunctive relief and/or any other remedies that may be available at law or in equity, all of which remedies shall be cumulative and in addition to any rights and remedies available by contract, law, rule, regulation or order. Any requirements for a bond in connection with any such injunctive or other equitable relief are hereby waived by both parties.
12. Compliance with Laws. You agree to comply with the Data Privacy and Security Laws in connection with performing your obligations under and exercising your rights under this Agreement (including, without limitation, accessing and using the Service and the Social Media Content for the Authorized Purposes).
13. Service Limitations. The Service may be temporarily unavailable, without notice, from time to time due to required maintenance, improvements, telecommunications interruptions, or other disruptions. We are not responsible for any damages that you may suffer arising out of use or inability to use the Service. We are not liable for unauthorized access to or alteration, theft or destruction of your data files, programs, procedures or information for any reason. You hereby acknowledge that it is your responsibility to validate for correctness all Data and to protect your Data from loss by maintaining back-ups of all Data and routinely updating such back-ups. You hereby waive any damages occasioned by lost or corrupt Data or incorrect data files resulting from a programming error, operator error, your equipment or software malfunction, or from the use of third-party software.
14. Disclaimer of Warranties. We make no warranties related to the Services provided by WarWire hereunder, and hereby disclaim all warranties, express or implied, including without limitation, warranties of merchantability, fitness for a particular purpose and non-infringement. You assume total responsibility for the selection of the Services to achieve your intended results and for your use of the results obtained from the Services. We do not warrant that the Services meet your requirements or will be uninterrupted or error free.
15. Limitations of Liability. In no event will WarWire (including its subsidiaries, its parent and subsidiaries of its parent, licensors, and the employees, officers, directors and agents thereof) be liable for any consequential, indirect, special, incidental, exemplary or punitive damages under this agreement or in connection with any Services we provide hereunder, including without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss arising out of the use or inability to use the services or data, even if we have been advised of the possibility of such damages and even if available remedies are found to have failed of their essential purpose. The total liability, if any, of WarWire (including its subsidiaries, its parent and subsidiaries of its parent, and licensors, and the employees, officers, directors and agents thereof) in the aggregate over the term of this Agreement for all claims, causes of action or liability whether in contract, tort or otherwise arising under or in any way related to this Agreement and/or the services provided hereunder (collectively, “Claims”), shall be limited to the lesser of: (a) your direct damages, actually incurred, or (b) the total fees paid by you to us in the most recent six (6) month period. Notwithstanding the foregoing, our sole obligation in the event of an error in the performance of any Services under this Agreement shall be limited to reprocessing applicable Data or re-performing the Services. WarWire (including its subsidiaries, its parent and subsidiaries of its parent, and licensors, and the employees, officers, directors and agents thereof) shall have no liability, express or implied, whether arising under contract, tort or otherwise, for any claim or demand: (a) resulting directly or indirectly from your internal operations, equipment, systems or software owned or licensed by you; or (b) by third parties, even if we were advised of the possibility of such Claims or demands, except as expressly provided otherwise herein.
16. Indemnification of WarWire by You. You agree to defend, indemnify and hold harmless WarWire, its members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees, that may, at any time, arise out of or relate to your authorized, unauthorized, lawful or unlawful use of the Services, including but not limited to your breach of this Agreement, your inability to access the Services, Social Media Content, and your reliance on any errors or omissions on the Services, violation of Applicable Laws (including, without limitation, Data Privacy and Security Laws) and violation of any third party rights.
17. Assignment, Successors. You may not assign or transfer any right or license under this Agreement nor delegate any duty without our prior written consent. Any assignment, transfer or delegation in contradiction of this provision will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of the parties.
18. Subcontracting. We may freely subcontract our duties and obligations under this Agreement. In the event that we subcontract any of its duties and obligations, we agree that: (i) the third party will execute a confidentiality agreement consistent with the terms of this Agreement and (ii) any such permitted subcontracting does not release WarWire from any of its obligations under this Agreement.
19. Force Majeure. Notwithstanding any other provision of this Agreement, both parties agree that the other is not in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors.
20. Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the parties hereto shall be governed by the internal laws of the State of Delaware, excluding its principles of conflicts of laws.
21. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Each party shall bear its own costs, fees and expenses incurred in connection with this arbitration proceeding, including attorneys’ fees and expenses and witness costs and expenses. The arbitrator(s) shall apportion the fees, expenses and compensation of the American Arbitration Association and the arbitrator(s) between the parties in such amount as the arbitrator(s) determine is appropriate. Arbitration shall take place in California, unless the parties mutually agree to another location. Notwithstanding the foregoing, a party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such party’s rights or property.
22. Jurisdiction. Any civil action seeking injunctive relief, challenging an arbitration proceeding or award or otherwise related to this Agreement will be instituted and maintained exclusively in the federal or state courts of California.
BY ENTERING INTO THIS AGREEMENT, WHICH CONTAINS THIS ARBITRATION PROVISION, THE PARTIES ARE WAIVING THE RIGHT TO A JURY TRIAL AS TO ANY CLAIMS EACH PARTY MAY CLAIM TO HAVE AGAINST THE OTHER.
23. Notice. All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for WarWire is 628 Tumble Creek Lane, Fallbrook CA 92028; billing-related notices to you shall be addressed to the relevant billing contact you designated. All other notices to you shall be addressed to the relevant Services system administrator you designated. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
24. Independent Contractor. We are acting as an independent contractor for you in our capacity under this Agreement. Nothing contained in this Agreement or in the relationship between the parties shall be deemed to constitute a partnership, joint venture, agency, employment or any relationship other than that of our serving as an independent contractor to you.
25. Entire Agreement; Amendments. This Agreement, together with the exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter. This Agreement, including the exhibits hereto, may be amended only by an instrument in writing executed by the parties or their permitted assigns.
26. Construction of Agreement; Headings. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
27. Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect.
28. Use of Name. We may reference and use your name and logo and identify you as a client of WarWire in advertising, publicity, and marketing materials.
29. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.
628 Tumble Creek Lane, Fallbrook CA 92028