Terms of Service

 

 

Effective: November 11, 2014

 

Palerra, Inc. (“Palerra”) welcomes you to its online website (collectively, including all content and functionality available through the www.Palerra.com domain name, the “Palerra Website” or “Website”). Palerra’s proprietary software, content and related documentation and information and any other such service provided by Palerra (collectively, the “Services”) not only measures results, but helps users improve them.

 

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

 

By downloading, accessing or using any party of the Palerra Website, you agree to be bound by all of the following Palerra Terms of Service (the “Agreement”) and Palerra’s privacy policy (which can be found at http://www.Palerra.com/privacy/ (the “Privacy Policy”)). If you visit the Website or register for an account to use the ServiceS (a “Palerra Account”), you expressly accept the terms of this Agreement and the Privacy Policy. If you do not agree to the terms of either this Agreement or the Privacy Policy, you do not have Palerra’sauthorization to use any part of the Services.

 

the terms “you”, “your”, and/or “yours” includes the person or entity that is registered with Palerra as well as any third parties accessing Palerra on your behalf). In addition, If you are entering into this Agreement as an employee or representative of your employer, the term “you” includes your employer and/or any other party on whose behalf you act, and you represent and warrant that you have the authority to act on such party’s behalf.

 

Palerra may modify this Agreement at any time, in Palerra sole discretion. These changes become effective immediately upon posting and your continued use or access of the Website and/or the Services shall be deemed your conclusive acceptance of the modified Agreement. Please review these Terms of Service from time to time so that you will be apprised of any changes.

 

If your organization has entered into a separate purchase agreement with PALERRA (The “custom agreement”), then if any of the terms in this Agreement conflict with any terms in such Custom Agreement, the terms in such Custom Agreement shall prevail.

 

1. Service Terms and Limitations.

1.1       License. Your access to the Services is licensed and not sold. Subject to the terms of this Agreement and upon your registration for a Palerra Account, Palerra hereby grants you a revocable, non-exclusive, non-transferable (without the right to sub-license) account enabling you to access and use the Services and the Website for your internal business purposes in accordance with any related acceptable written use policies, usage guidelines, and other documentation (the “Documentation”) that may be provided by Palerra from time to time. All Palerra content that is made available to access, view, and/or download in connection with the Services is owned by and is the copyrighted work of Palerra and/or its suppliers and is licensed, not sold. You may not lend, lease, rent or sublicense any aspect of the Services.

1.2       Proprietary Rights. Except for the limited licenses expressly granted herein, Palerra expressly reserves all right, title and interest in and to the Services, the content of the Palerra Website, and all processing, analytics, and other software and technology used by Palerra in the provision of the Services (collectively, the “Palerra Technology”), including, without limitation, any derivatives, improvements, enhancements or extensions of the Palerra Technology conceived, reduced to practice or otherwise developed on or on behalf of Palerra, all of which are valuable assets of Palerra, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto. All content on the Palerra Website, including text, graphics, logos, icons, images, and video clips, is the exclusive property of Palerra or its content suppliers and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all content on the Palerra website is the exclusive property of Palerra and is also protected by U.S. and international copyright laws. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the content on the Palerra Website is strictly prohibited.   Any unauthorized or prohibited use of the contents on the Palerra Website may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, and local laws.

1.3       Restrictions. You shall not: (i) use, or allow the use of, the Services, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by Palerra or inconsistent with Palerra’s standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, or compromise any aspect of the Palerra Technology, or attempt to access data of any other customer of Palerra; (iv) use, reproduce, modify or create derivative works of the Palerra Technology; (v) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by Palerra; (vi) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; (vii) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Services; or (viii) transfer, lease, lend, sublicense, use for timesharing or service bureau purposes, resell or otherwise distribute or allow third party access to all or any portion of the Palerra Technology, including, but not limited to, by sharing your access username and/or password.

 

2. User Representations; User Agreement. 

2.1       User Representations. To access the Services, you must create a Palerra Account by completing the registration process. In registering for a Palerra Account you represent that: (a) you are of legal age to form a binding contract and that you, or if you are registering on behalf of a person or entity, are authorized to register for the Services on such person’s or entity’s behalf; (b) all information provided to Palerra is true and accurate; (c) You represent and warrant to Palerra that you own all right, title and interest in and to the URLs of your website, and you own or have rights to publish all of the content published on or through your website and the user interface of your website; and (d) you are the authorized signatory of the credit or charge card provided to Palerra to pay the Fees (as defined below).

2.2       User Agreement. You expressly agree: (i) that Palerra has the right to suspend and/or terminate your account and refuse any and all current or further use of the Services if Palerra determines, in its sole discretion, that any information you provide is untrue, inaccurate, not current and/or incomplete; (ii) to protect your username and password at all times; (iii) to notify Palerra immediately of any unauthorized use of your account or any other need to deactivate your username and/or password due to security concerns; and (iv) that Palerra shall not be responsible for unauthorized access to or alteration of your data. Your username and password are personal to you and under no circumstances may you allow any others to use your username and/or password. Palerra is not liable for any harm caused or related to the theft or misappropriation of your username and/or password, disclosure or your username and/or password, or your authorization of anyone else to use your username and/or password. From time to time, Palerra may find it necessary to access your account for support, maintenance or security-related reasons. In such an event, Palerra will obtain your consent to use your username and password to do so, but solely to provide such support, maintenance or security-related services.  Furthermore, recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.

 

3. Fees; Payment Terms; Account Cancellation.

3.1       Fees. Palerra charges a subscription fee (“Fees”) for the use of the Services. Palerra expressly reserves the right to change the Fees at any time, upon notice to you. By registering for a Palerra Account, you agree to pay Palerra the Fees for the Services applicable to the account level chosen. Unless otherwise stated, all fees are stated in U.S. Dollars. The Fees for the Services do not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access and use the Services. All Fees, Taxes (as defined herein) and other charges will be billed to an invoicing service such as your credit card at the current international currency conversion rate. You are responsible for and shall pay Palerra all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, “Taxes”) for the use of the Services or resulting from this Agreement, whether imposed now or hereinafter by any governmental entity. For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.

3.2       Payment Terms. All Fees are payable annually in advance and are non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused. We reserve the right to deactivate your access to the Services for failure to pay applicable fees. If you provide us with a credit card that expires during the term of this Agreement, we reserve the right to charge any renewal card issued to you as a replacement. You agree to promptly pay Palerra in the event of any refusal of your credit card issuer to pay any amount to Palerra for any reason. You agree to pay interest at the rate of either 1.5% per month on any outstanding balance, together with costs of collection, including attorney’s fees and costs. In the event you fail to pay any amount when due, Palerra may immediately suspend or terminate this Agreement and your access to the Services.

3.3       Account Cancellation. The only accepted method for you to cancel your paid subscription to the Services is to contact Palerra by phone at [(650) 300-5222] at least two (2) business days prior to the end of your current paid up term. If you cancel the Service before the end of your current paid up term, your cancellation will take effect immediately and you will not be charged again.

 

4. Information Rights.

4.1       User Data; User Content. You have the exclusive right to use all data derived by your use of the Services, including reports, for any purpose related to your business and you shall retain ownership of all confidential information and statistics relating to your website and applications, such as raw data and log files generated by the Services (collectively, “User Data”). As between Palerra and you: (i) you are solely responsible for the contents of User Data (the “User Content”) and the use (other than by Palerra) of the User Data; (ii) you retain ownership and possession of the User Data at all times; and (iii) you retain control of the User Data at all times except to the extent that you specifically authorizes Palerra to exercise certain controls, as selected by you through the Services, over the User Data. To the extent within your control, you will ensure that User Data complies with applicable laws and regulations. Nothing in this Agreement shall be construed to grant Palerra any rights in User Data or User Content beyond those expressly provided herein.

4.2       Limited License. In connection with the provision of the Services, you agree that Palerra’s use of any User Data shall be subject to Palerra’s Privacy Policy, and you agree to grant to Palerra the limited license to use such User Data as set forth therein. Notwithstanding the foregoing, any non-personally identifiable information collected, compiled, generated or used in the foregoing manner by Palerra shall not constitute “User Data.” You agree that, notwithstanding anything to the contrary herein, Palerra may use anonymized statistical information derived from such User Data and aggregate it with statistical information from other customers (“Non-Identifiable Aggregated Data”) for Palerra’s business purposes, including without limitation for analyzing customer needs and improving its services, and Palerra shall own all right, title and interest in any such Non-Identifiable Aggregated Data.

 

5. Privacy Rights. Palerra is firmly committed to protecting your privacy and the information that Palerra gathers. For Palerra’s complete policy on privacy, please visit and review Palerra’s Privacy Policy at http://www.Palerra.com/privacy/. In registering for the Services, you represent and agree that you will not use the Services to associate any data gathered from your website with any personally identifying information from any source as part of your use of the Services.

 

6. User Submissions.

6.1       Submitted Content. You are solely responsible for the information, and other content that you upload, publish or display (hereinafter, “post”) through the Services (collectively, the “Submitted Content”).  Your participation in on-line communications occurs in real time and is not edited, censored, or otherwise controlled by Palerra. Palerra cannot and does not screen content provided by you to the Website or through the Services. Notwithstanding the foregoing, Palerra reserves the right to monitor content on the Website and to remove content, which Palerra, in its sole discretion, determines to be harmful, offensive, or otherwise in violation of this Agreement or Palerra’s operating policies for users of Website (“Users”). You warrant, represent and agree that you will not contribute any Submitted Content or otherwise use the Palerra Website in a manner that (i) infringes the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) you should know is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) adversely affects or reflects negatively on Palerra’s goodwill, name or reputation or causes duress, distress or discomfort to Palerra or anyone else, or discourages any person, firm or enterprise from using all or any portion, feature, or function of the Palerra Website, or from advertising, liking or becoming a supplier to use in connection with the Palerra site; (v) send or result in the transmission or junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming”; (vi) transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horse, spyware, or other potentially harmful programs or other material or information; (vii) falsely report to an employee or agent of Palerra; (viii) circumvent, disable or otherwise interfere with security-related features of the Palerra website or its features that prevent or restrict use or copying of any content; (ix) intercept or attempt to intercept email or other private communications not intended for you; and/or (x) causes the Palerra Website to be used for commercial or business purposes, including, without limitation, advertising, marketing, or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages. While it is not the intent of Palerra to discourage you from reporting problems about the Palerra Services, nonetheless, Palerra reserves the right to take such action as it deems appropriate and/or to remove any content from the Palerra Website 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 Palerra is concerned that you may have breached the immediately preceding sentence), or for no reason at all.

6.2       License Grant. By posting any Submitted Content on publicly accessible locations on the Website, you automatically grant (or warrant that the owner of such content has expressly granted) to Palerra a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide license to use, copy, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, publish and/or broadcast, publicly perform or display any materials or other information (including without limitation, ideas contained therein for new or improved products or services) you submit to public areas of the Website, alone or as part of other works in any form, media, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses.  You agree that you shall have no recourse against Palerra for any alleged or actual infringement or misappropriation of any proprietary right in your communication to us. You further acknowledge and agree that no compensation will be paid with respect to the use of your comments, as provided herein, that Palerra may remove any comment at any time in its sole discretion. Further, when you post any Submitted Content on the Website, you authorize and direct Palerra to make such copies thereof as Palerra deems necessary in order to facilitate the posting and storage of such content on the Website.  You may remove any Submitted Content you post from the Website at any time. If you choose to remove your Submitted Content, the license granted above will automatically expire, however you acknowledge that Palerra may retain archived copies of the Submitted Content.

 

7. Indemnification.

7.1       User Indemnification. You agree to defend, indemnify, and hold harmless Palerra from and against all actions, claims, costs and demands which may be brought or made against Palerra by a third party and all loss, damages, costs or other claims for compensation and any reasonable legal or other expenses which are awarded against, incurred by or paid by Palerra arising out of or in connection with (i) any User Data, (ii) your use of the Services in a manner that breaches any provision of this Agreement, and/or (iii) your breach of any law applicable to you or your activities. Palerra reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You will cooperate as fully as reasonably required in the defense of any claim.

7.2       Palerra Indemnification. Palerra agrees to defend, indemnify, and hold harmless you from and against all actions, claims, costs and demands which may be brought or made against you by a third party and all loss, damages, costs or other claims for compensation and any reasonable legal or other expenses which are awarded against, incurred by or paid by you arising out of or in connection with such third party claim alleging (i) an infringement of such third party’s patent, copyright or trade secret; and/or (iii) Palerra’s breach of any law applicable to Palerra or its activities. Palerra shall assume the defense of any such third party action. You may employ your own counsel in any such case, and shall pay such counsel’s fees and expenses. Notwithstanding anything to the contrary herein, this Section 7.2 shall not be applicable or available to any user using a free or trial version of the Services (such user, a “Nonpaying User”).

7.3       Indemnification Procedure. The party seeking indemnification under this Section 7 (the “Indemnified Party”) agrees to notify the party providing indemnification pursuant to this Section 7 (the “Indemnifying Party”) promptly, in writing, of any actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such actions. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.

 

8. Confidentiality.

8.1       Definition. For the purposes if this Agreement, “Confidential Information” shall mean any information disclosed by a party to the other party pursuant to this Agreement, whether disclosed orally or in written, graphic, machine readable or other tangible form which would, due to the nature thereof or the circumstances surrounding disclosure, appear to a reasonable person to be confidential or propriety. The term “Confidential Information” does not include information that (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) at the time of disclosure, was known to the receiving party through lawful means or through acts of a third party who is free to make such disclosure without restriction; (iii) was independently developed by the receiving party without any use of the Confidential Information; or (iv) is the subject of a written permission to disclose provided by the party owning such Confidential Information.

8.2       Confidentiality. Subject to the terms of Section 9 below, each party will treat as confidential all Confidential Information (as defined herein) of the other party, will not use such Confidential Information except as set forth herein, and will not disclose such Confidential Information to any third party except as provided herein. Confidential Information may be disclosed as required by court order, provided that the receiving party shall promptly notify the disclosing party to allow intervention and shall cooperate with the disclosing party to contest or minimize such disclosure. Each party shall protect the Confidential Information received with at least the same degree of care used to protect its own Confidential Information from unauthorized use or disclosure. Each party shall limit access to the other party’s Confidential Information to those of its employees who need access to such Confidential Information to carry out the obligations under this Agreement. All Confidential Information of a party (including all copies of such Confidential Information) shall remain the property of the disclosing party and shall be returned to the disclosing party upon: (i) request of the disclosing party or (ii) the expiration or termination of this Agreement as set forth in Section 12.

8.3       Equitable Relief. Each party acknowledges that misuse or disclosure of any Confidential Information would likely give rise to irreparable injury to the other party or the owner of such information, inadequately compensable in damages. Accordingly, either party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Each party acknowledges and agrees that the covenants contained herein are necessary for the protection of legitimate business interests of the other party, and are reasonable in scope and content.

 

9. Limited Warranty; Disclaimers.

9.1       Limited Warranty. Palerra warrants that the Services will perform in accordance with the Documentation. Palerra’s sole responsibility, and your sole remedy, under this warranty will be to use reasonable commercial efforts to correct such nonperformance or, if such efforts are unsuccessful, you may terminate this Agreement and Palerra shall refund the pre-paid fees paid by you for remainder of the then current term. Notwithstanding anything to the contrary herein, this Section 9.1 shall not be applicable or available to any Nonpaying User.

9.2       Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY PALERRA, OR ANY OF ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES AND THE WEBSITE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.  PALERRA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES AND THE WEBSITE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES AND THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SERVICES AND THE WEBSITE WILL BE COMPATIBLE WITH YOUR THIRD PARTY APPLICATIONS OR SOFTWARE. IN ADDITION, FOR ANY NONPAYING USER, YOU USE THE SERVICES AND THE WEBSITE AT YOUR SOLE RISK. THE SERVICES AND THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

 

THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.

 

9.3       Disclaimer of Third Party Content. You understand that when using the Palerra Website, you will be exposed to other Users’ comments and third party content from a variety of sources, and that Palerra is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such other clients’ comments or third party content. Statements made in the Palerra Website, newsgroups, message boards, email, forums, and/or conferences, if any, reflect only the views of their authors. Forum managers, forum hosts, and/or content providers, if any, appearing on the Palerra Website are not authorized Palerra spokespersons, and their views do not necessarily reflect those of Palerra, and Palerra does not endorse any client comments or any opinion, recommendation, or advice expressed therein. You further understand and acknowledge that you may be exposed to other clients’ comments and third party content that may be offensive, indecent, inaccurate, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Palerra with respect thereto. You are responsible for viewing and abiding by any privacy statements and terms of use posted in connection with these links. You agree that the Services may include advertisements and that these advertisements are necessary for Palerra to provide the Palerra Services. You further understand that the Services may include certain communications from Palerra that you cannot opt out of receiving.

 

10. Limitation of Liabilities. YOU AGREE THAT NEITHER PALERRA NOR ANY OF ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF PALERRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU. PALERRA’S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO PALERRA FOR USE OF THE SERVICES.

 

11. Copyright or Intellectual Property Infringement Notification. Palerra respects the intellectual property rights of others. You can notify Palerra of possible copyright infringement, and Palerra will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please provide the following:

(a)        A physical or an electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;

(b)       A description of the copyrighted work or other intellectual property that you claim has been infringed;

(c)        A description of where the material that you claim is infringing is located on the Website reasonably sufficient to permit Palerra to locate the material;

(d)       Your contact information, including your address, telephone number, and email;

(e)        A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(f)        A statement by you that the above information in your notice is accurate and that you, made under penalty of perjury, are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Contact the agent designated to receive and act on copyright violations under the Digital Millennium Copyright Act (“DMCA”). Claims can be sent to info@palerra.com] or to Palerra, Inc., ________________________________.

 

12. Term and Termination.

12.1     Term and Renewal. This Agreement shall continue for the duration of the term purchased by you, unless sooner terminated in accordance with Section 12.2 below (the “Initial Term”). Upon the expiration of the Initial Term, your subscription will automatically renew for an additional twelve (12) months term (each a “Renewal Term”, and collectively with the Initial Term, the “Term”), unless, prior to the expiration of the current Term, either Palerra terminates this Agreement or you terminate your subscription by providing written or electronic notice to Palerra through your Palerra Account (please see Section 3.3 above).

12.2     Termination. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach.

12.3     Effect of Termination. Upon any termination of this Agreement, (i) Palerra will cease providing the Services; (ii) any and all licenses set forth in Section 1 is revoked and you shall have no further right to access or use the Services or Documentation; (iii) any outstanding balance payable by you to Palerra will become immediately due and payable; (iii) you will not be entitled to any refunds of any usage fees or any other fees; (iv) all of your historical report data will no longer be available to you; (v) each party will use commercially reasonable efforts to return or destroy any Confidential Information of the other party within its possession; and (vi) in the event that this Agreement is terminated by you pursuant to Section 12.2, Palerra will refund any pre-paid fees for the period following termination.

12.4     Survival. The provisions of Sections 1.2 (Proprietary Rights), 2 (User Representation; User Agreement), 3.1 (Fees), 3.2 (Payment Terms), 4 (Information Rights), 6 (User Submissions), 7 (Indemnification), 8 (Confidentiality), 9 (Disclaimers), 10 (Limitation of Liabilities), 12.2, 12.3, 13 (U.S. Government Restricted Rights), 14 (Export Controls), and 15 (Miscellaneous) shall survive any termination of this Agreement.

 

13. U.S. Government Rights. If the use of the Services is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in Services, including its rights to use, modify, reproduce, release, perform, display or disclose the Services, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

 

14. Export Controls. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Services is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals.   By downloading or using the Services, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.

 

15. PUBLICITY. Subject to the limitations set forth herein, either party may use the other party’s name and/or logo (the “Marks”) on its website, customer or vendor list (as applicable) or other marketing materials to refer to the relationship between the parties pursuant to this Agreement. All such use shall be in accordance with the usage policies and guidelines of the party owning the Marks and provided in writing to the other party. If the owner of the Marks objects to any such use or wishes to revoke its permission to use its Marks hereunder, the other party shall cease any such use promptly after receiving notification. Neither party’s use of the other party’s Marks implies or confers any endorsement by either party. Except as expressly set forth above, neither party shall use any of the Marks or other trademarks of the other party in any public manner without the party’s prior written consent.

 

16. Miscellaneous. This Agreement shall be governed by and construed under the laws of the state of California without reference to its conflict of law principles.  You agree that any legal action or proceeding between Palerra and you for any purpose concerning this Agreement, and any other related agreements with Palerra, or the parties’ obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in San Francisco, California, United States. Any cause of action or claim you may have with respect to Palerra must be commenced within one (1) year after the claim or cause of action arises. If any action in law or in equity is necessary to enforce the terms of this Agreement and/or Palerra’s Privacy Policy, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. Both parties agree that this Agreement, along with Palerra’s Privacy Policy, are the complete and exclusive statements of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter hereof, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.   A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of your rights hereunder without Palerra’s prior written consent, and any such attempt is void.  If any provision of this Agreement and/or Palerra’s Privacy Policy 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.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and/or Palerra’s Privacy Policy and you do not have any authority of any kind to bind Palerra in any respect whatsoever. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any user, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement; except that Sections 7, 8, and 10 are intended to benefit Palerra and its officers, directors, employees, agents, licensors, and suppliers. Palerra may assign its rights and duties under this Agreement to any party at any time without notice to you.