THIS DOCUMENT IS A CONTRACT BETWEEN THE BUSINESS IDENTIFIED AS THE CUSTOMER ON THE ASSOCIATED CONNECTIVITY ORDER FORM (“USER”) AND CONNECTIVITY, INC. (“CONNECTIVITY”). IF USER ACCEPTS THIS CONTRACT BY CLICKING WHERE INDICATED ON SUCH ORDER FORM OR IF USER USES CONNECTIVITY’S WEBSITE AT www.connectivity.com OR ANY SUBDOMAIN OF THAT SITE (THE “SITE”) OR ANY OF THE SERVICES CONNECTIVITY OFFERS AT THE SITE (THE “SERVICES”), THIS CONTRACT WILL BECOME A LEGALLY BINDING AGREEMENT BETWEEN USER AND CONNECTIVITY. IF USER DOES NOT AGREE TO OR WISH TO BE BOUND BY THIS CONTRACT, DO NOT INDICATE YOUR ACCEPTANCE BY CLICKING WHERE INDICATED AND DO NOT USE THE SITE OR ANY OF THE SERVICES.
THIS CONTRACT REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES (OTHER THAN CERTAIN SPECIFIED INTELLECTUAL PROPERTY CLAIMS), AS STATED IN THE “RESOLUTION OF DISPUTES” SECTION (SECTION 14), WHICH USER SHOULD READ IN ITS ENTIRETY. USER UNDERSTANDS THAT THIS IS A LEGALLY BINDING INSTRUMENT AND AGREES TO ABIDE BY ITS TERMS.
THIS CONTRACT APPLIES TO USER AND ANY AND ALL PERSONS THAT USER PERMITS TO USE THE SITE OR ANY SERVICES.
Order Form. This Contract relates to User’s use of the Site and of Connectivity’s cloud-based Customer Insight product, which helps users to obtain and utilize useful information about, and manage their relationship with, their customers (the “Purchased Services”). Any capitalized terms used in this Contract that are not defined in this Contract shall have the meaning provided in the associated Connectivity Order Form (the “Order Form”). This Contract and the Order Form shall be read as a single, integrated document that sets forth the agreement between Connectivity and User. User represents and warrants that all information provided on the Order Form or otherwise provided by User to Connectivity is true and correct.
Connectivity may change the Site and the Purchased Services at any time and from time to time without notice, including, without limitation, by modifying, adding or discontinuing services provided therein or related functions (including, without limitation, services or functions on which User may rely) and by modifying the structure of or User’s access rights with respect to the Connectivity Data (as hereinafter defined).
Connectivity gathers data and information about User and User’s customers and potential customers from numerous third-party sources and by numerous means (collectively, the “Connectivity Data”). Connectivity Data includes, but is not limited to, data that Connectivity may collect only with User’s consent, such as information based upon User’s telephone or transaction records. Nothing in this Contract in any way restricts or limits Connectivity’s use or disclosure of Connectivity Data.
To the extent that Connectivity provides User with access to any Connectivity Data, User may, subject to all of the limitations, conditions and restrictions in this Contract, use such Connectivity Data solely for the purpose (relating to User’s use of the Purchased Services) for which Connectivity provided User with such access. Notwithstanding any other provision hereof, User shall not (i) disclose any Connectivity Data to any third party or allow any third party access to any Connectivity Data or (ii) download, copy, retain or store any Connectivity Data or use any Connectivity Data except while using a Purchased Service. If at any time User discovers or suspects that Connectivity Data has been downloaded, copied, retained or stored by any User personnel, User shall promptly so notify Connectivity in writing and shall cooperate with Connectivity to (i) destroy all unauthorized copies of the Connectivity Data and (ii) stop future downloads, copying, retention or storage of Connectivity Data, including, without limitation, by disabling the access credentials of any User personnel involved in or in any way responsible for such downloading, copying or storage.
User shall not submit via the Site or otherwise provide to Connectivity any confidential, proprietary or trade secret information other than (i) credit card numbers or similar information that is used to facilitate User’s payment for the Purchased Services or (ii) information that is clearly and unambiguously designated as proprietary information of User via a mechanism or process established by Connectivity for that purpose (collectively, “Proprietary User Information”). Connectivity is and shall remain free to use or disclose in any way any information provided by or obtained from User (“User Data”), provided that Connectivity shall not use Proprietary User Information except in connection with the provision of Services and shall not disclose Proprietary User Information except to persons who have agreed to hold such information in confidence and who receive such disclosure in connection with such permitted use of such information or in connection with any sale of all or any part of Connectivity’s business. Further, User acknowledges and understands that information that Connectivity obtains from sources other than User may be the same as, similar to or in some way or to some extent overlap with User Data. Connectivity nevertheless shall, as between Connectivity and User, own all right title and interest in and to any such information received from sources other than User, regardless of whether it is the same as or similar to or in some way or to some extent overlaps with any User Data. For clarity, references in this Contract to User Data includes, without limitation, any Proprietary User Information.
Connectivity assumes no obligation to maintain the security of User Data or protect the User Data from unauthorized disclosure to third parties or from loss, damage or corruption. Connectivity has no obligation to provide User with copies of or access to any User Data. If User requires access to User Data, User shall retain copies thereof. User shall not rely on Connectivity to store any valuable data or information.
As a result of or in connection with the relationship of the parties established under this Contract, User may receive access to confidential or proprietary information of Connectivity (“Confidential Information”), which may include Connectivity Data as well as other information. User shall not use any Confidential Information for any purpose other than to perform its obligations under this Contract and shall not disclose Confidential Information except to its personnel to the extent necessary to perform its obligations hereunder, provided that such personnel shall have first agreed in writing to refrain from using or disclosing such Confidential Information except as expressly permitted herein. Without limiting the generality of the foregoing, neither User nor any affiliate thereof shall in any way use any Confidential Information to create, maintain or design, or otherwise in connection with, any product or service that competes with or is similar to any Services. Nothing in this Section 3.f limits or modifies the parties’ respective rights and obligations under Section 3.b with respect to Connectivity Data. Without limiting any of User’s other obligations or Connectivity’s rights under this Section 3, User shall promptly destroy any copies of Confidential Information in its possession or under its control upon notice from Connectivity.
If User or any of its affiliates is served with a subpoena, interrogatories, requests for information or documents, civil investigative demand or other order or process which seeks to compel the production of Connectivity Data or of Confidential Information, User shall immediately notify Connectivity in writing thereof. The parties to this Contract shall then cooperate with one another for the purpose of obtaining such relief as will protect the Connectivity Data and/or Confidential Information, as the case may be. Should Connectivity or User file any motion for a protective order or similar motion with respect to the Connectivity Data and/or Confidential Information, User (or its affiliate) shall not comply with such subpoena, interrogatories, requests for information or documents, civil investigative demand or other order or process until after such time as the court rules on such motion. User and its affiliates shall protect the Connectivity Data and Confidential Information to the maximum extent possible consistent with such ruling.
User acknowledges that the Connectivity Data and Confidential Information are valuable and unique and that any violation by User or any affiliate thereof of this Section 3 would cause Connectivity to incur substantial damage, the amount of which would be difficult or impossible to fully ascertain. Accordingly, Connectivity shall be entitled to receive, and User shall in no way object to or contest, provisional and permanent injunctive relief prohibiting the unauthorized use, downloading, copying, storing or disclosure of Connectivity Data or Confidential Information.
Without limiting the generality of Section 10, Connectivity does not verify or authenticate any of the Connectivity Data. User’s use of the Site, the Purchased Services or Connectivity Data shall be at User’s sole risk.
As between Connectivity and User, Connectivity owns all patents, copyrights, trade secret rights and other intellectual property or proprietary rights in or relating to the Site, the Purchased Services or the Connectivity Data, including, but not limited to, the selection, arrangement and any other expressive aspects of the Connectivity Data (the “Connectivity Materials”). Connectivity grants User a nonexclusive, non-transferrable license, without right to sublicense, to access and use the Connectivity Materials during the term of this Contract solely as and to the extent expressly permitted hereunder. Connectivity reserves all rights not expressly granted by Connectivity hereunder. Without limiting the generality of the foregoing, User shall not (i) use a frame or border environment around the Site or any other framing technique to enclose any portion or aspect of the Site or mirror any portion of the Site; (ii) modify, translate into any language or computer language, or create derivative works from, any Connectivity Materials; (iii) reverse engineer any Connectivity Materials; or (iv) access, copy or use any Connectivity Materials except as expressly authorized hereunder. User acknowledges that any violation of the foregoing by User may constitute an infringement or misappropriation of Connectivity’s intellectual property or proprietary rights, in addition to a breach of this Contract.
User grants Connectivity a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable license, with the right to sublicense, under any and all intellectual property or other rights in or relating to any information or material provided by User to Connectivity relating to Connectivity Material or User’s use thereof or experience therewith, whether oral or written (collectively, “Feedback”), to (i) modify or create derivative works based upon the Feedback, (ii) use Feedback and any such modifications or derivative works in any way in connection with the design, development, marketing and other exploitation of any Connectivity Materials or any other product or service of Connectivity or any of its affiliates, (iii) debug, display, perform, prepare derivative works, copy, make, have made, use, disclose, sell, otherwise dispose of, support, and otherwise exploit the Connectivity Materials and such other products and services in any way and in any media, whether currently known or unknown, and (iv) copy, display, perform, distribute, display, use, sell or otherwise exploit the Feedback and any modifications thereto or derivative works based thereon for any purpose and in any way.
SECURITY. User shall implement practices and precautions to ensure that each person that uses User’s account to access the Site, any Purchased Services or any Connectivity Data shall be duly authorized to have and use such access on User’s behalf (“User Personnel”). All User Personnel shall be instructed to abide by such practices and precautions. User shall promptly notify Connectivity in writing of any unauthorized access to or use of any Purchased Service or Connectivity Data. User shall provide Connectivity all details regarding such practices and precautions upon notice from Connectivity requesting such details. If Connectivity at any time believes that such practices and precautions are inadequate or should for any other reason be modified or supplemented, the parties shall collaborate regarding and mutually agree upon any such modifications or supplementation.
AGE AND USE RESTRICTIONS. The Site and the Services are intended for use by businesses and not for personal, family or household purposes. All users of the Site or of any Services must be age eighteen (18) or older. User represents and warrants that (i) it shall not allow anyone under age eighteen (18) to use the Site or any Purchased Services and (ii) it shall not use the Site or the Purchased Services for personal, family or household purposes.
TERMINATION. The term of this Contract shall commence when User purchases the Purchased Services and shall end when terminated as provided in this Section 7. User may terminate the Purchased Services and this Contract at any time by accessing the “Account Settings” page under the “My Settings” option on User’s membership home page, clicking on “Cancel My Subscription” or “Close Account” link, and providing the information requested; provided that Connectivity may modify the process for such termination at any time and from time to time without notice. If User terminates User’s Purchased Services, this Contract and such Purchased Services will terminate at the end of the then-current Pre-Payment Period (as defined below) with respect thereto. Connectivity may terminate this Contract and the Purchased Services at any time. Termination by Connectivity shall not be effective until expiration of any then-current Pre-Payment Period with respect thereto, provided that Connectivity may, without notice, terminate the Purchased Services and this Contract immediately if User breaches or violates any provision of this Contract. If, notwithstanding Section 3.a, upon termination of this Contract or the Services User retains or has the reasonable ability to control any copies or embodiments of any Connectivity Data, either because of any violation of this Contract or because Connectivity shall have provided any Connectivity Data to User in any report or otherwise in connection with the Services, User shall promptly destroy all such copies or embodiments. Upon notice from Connectivity, the president or chief executive officer of User shall certify in writing to Connectivity that User has complied with its obligations under this Section 7. Sections 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 shall survive any termination or expiration of this Contract and shall remain fully effective and enforceable thereafter.
User may be given the option to pay for the Purchased Services on a monthly, quarterly, annual or other basis, as specified on the Order Form. Unless otherwise specified by Connectivity, all payments for Purchased Services will be made in advance. The period of time during which User is entitled to receive Purchased Services as a result of any such advance payment shall be referred to as such User’s “Pre-Payment Period” associated with such payment. For example, if User makes an annual advance payment for Purchased Services that commence on the payment date, then the Pre-Payment Period associated with such payment shall be the one-year period commencing on such payment date. User shall under no circumstances be entitled to any refund of any payment hereunder, even if the Purchased Services and / or this Contract are terminated during the Pre-Payment Period associated with such payment, regardless of the reason for such termination.
User may also have the option to pay for Purchased Services in installments as specified in the Order Form. For example, User may be given the option to purchase Services for a fixed term (such as a fixed term of one year) with the fees for such Services paid in installments due at intervals during such fixed term. In that event, the Pre-Payment Period shall include the entire fixed term. User shall ensure that all such installments are paid on time and shall under no circumstances cancel, charge back, contest or otherwise prevent timely payment of any installment payment hereunder, even if the Purchased Services and / or this Contract are terminated during the Pre-Payment Period associated with such installment payments, regardless of the reason for such termination.
User shall pay Connectivity for the Purchased Services using a major credit card (the “Payment Method”). (Visa, MasterCard, American Express, JCB, Discover and Diner’s Club were accepted as of the date that this Contract was last revised. Connectivity may change the list of accepted cards at any time and from time to time, without notice.) User authorizes Connectivity to charge User using the Payment Method for any amounts that User agrees to pay hereunder, including, but not limited to, any monthly, quarterly or other installments and any renewal charges in the event of the automatic or other renewal of any Purchased Service.
User shall pay (or, at Connectivity’s option, reimburse Connectivity for) any federal, state or local sales, use, value added or other tax, tariff, duty or assessment and any associated interest or penalties arising out of or related to any of the transactions contemplated under this Contract (other than taxes based on Connectivity’s net income).
If the service in any way facilitates User’s interaction with any customers or potential customers of User, User shall conduct such interaction in an ethical, honest and respectful fashion. Without limiting the generality of the foregoing, User shall not in any such interaction (i) make any statement or representation that is untruthful or misleading in any way or (ii) use, communicate or transmit any offensive, obscene or otherwise inappropriate language or content, including but not limited to language or content of a sexual nature or that denigrates any person or group on any basis, including, but not limited to, on the basis of race, religion, nationality, age, sexual orientation or gender identity. For clarity, (i) Connectivity may discover online postings by User’s customers or others that relate to User that include such offensive, obscene or otherwise inappropriate language or content, and (ii) neither User nor Connectivity shall be deemed to be in breach of this Agreement or have any liability hereunder in connection with such online postings or with Connectivity’s provision or transmissions of such online postings or related information to User. Nevertheless, any response to or other action taken in connection with or relating to any such online posting by or on behalf of User must comply with this Contract, including but not limited to this Section 5.a.
User shall not use the Site or the Services in any way that violates any applicable law, regulation, ordinance or order of any governmental body or agency.
User may use the Site, the Purchased Services and Connectivity Data solely for User’s internal business purposes. Without limiting the generality of the foregoing, User shall not resell, sublicense or otherwise provide the Purchased Services or Connectivity Data or any part thereof to, or use the Site, the Purchased Services or any Connectivity Data to provide any services to or otherwise on behalf or for the benefit of, any third party.
User shall not use the Site, the Purchased Services or the Connectivity Data in connection with any business that competes in any way with Connectivity or any affiliate thereof.
User shall not use the Site, the Purchased Services or the Connectivity Data in any way that, as reasonably determined by Connectivity, is contrary to the best interests of Connectivity or the public.
NO WARRANTIES. Connectivity provides the Site, the Purchased Services and the Connectivity Data AS IS, without any warranties whatsoever. User acknowledges that no employee or other representative of Connectivity is authorized to make any representation or warranty on behalf of Connectivity, and no oral or written statement, advice or information made or provided by any Connectivity personnel shall constitute or give rise to any representation or warranty. Without limiting the generality of the foregoing: (i) Connectivity does not warrant that the Site, the Purchased Services, the Connectivity Data or any part of any of the foregoing will always be available and running, error free, secure or free of viruses or other malware or that the Connectivity Data will always be accurate or timely; (ii) Connectivity makes no warranties of any type or nature regarding any third party websites to which Connectivity may provide links or otherwise connect User, and User acknowledges, understands and agrees that its navigation to and/or use of any third party website shall be at its sole risk, and (iii) Connectivity specifically disclaims the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
LIMITATION OF LIABILITY.
Neither Connectivity nor its affiliates nor its licensors, service providers or other vendors will be liable for any special, incidental, consequential or exemplary damages, including, without limitation, damages for loss of use or lost profits, arising out of or in connection with this Contract or the Site, the Purchased Services, the Connectivity Data or User’s use of any of the foregoing, even if Connectivity or its affiliates, licensors, service providers or other vendors have been advised of the possibility of such damages.
In no event will Connectivity’s or its affiliates’, licensors’, service providers’ or other vendors’ aggregate liability for any claim(s) under this Contract or relating to the Site, the Purchased Services, the Connectivity Data or the use of any of the foregoing, whether arising in contract, tort or any other theory of liability, exceed the fee paid by User to Connectivity for the Purchased Services for the initial or renewal one (1) year term of this Contract during which such liability first accrued.
If Connectivity breaches this Contract in any way, or if Connectivity otherwise violates any rights of User, Connectivity’s sole liability and User’s sole and exclusive remedy therefor shall be direct damages, subject to Section 11(b). User shall not seek and hereby irrevocably waives any right to receive injunctive or other equitable relief of any type or nature against Connectivity.
User shall, at its sole expense, defend (with counsel selected by User and approved by Connectivity) Connectivity and its affiliates and their respective officers, directors, employees, partners, members, agents, subcontractors and representatives (collectively, the “Connectivity Group”) from and against any and all claims, demands, actions or causes of action (“Claims”) asserted against the Connectivity Group or any member(s) thereof, and shall indemnify the Connectivity Group and hold it harmless with respect to any liabilities, losses, damages, charges, fines, penalties, settlements, costs or expenses (including, without limitation, attorneys’ fees) (“Losses”) suffered or incurred by the Connectivity Group or any member(s) thereof, in either case which arise out of or result from, or are connected with, or which are claimed to arise out of or result from, in whole or in part, (i) User’s use of the Site, the Purchased Services or the Connectivity Data, (ii) any disclosure, corruption or loss of data received from User or Connectivity Data, (iii) User’s breach of this Contract, (iv) any unauthorized use of or access to any Services or Connectivity Data or (v) User’s interaction of any type or nature with any customer or potential customer thereof; provided, however, that the indemnity obligations of User (but excluding the obligations of User to defend set forth herein) shall not apply to Claims and associated Losses which are finally determined on the merits to have resulted primarily and directly from the willful misconduct or fraud of Connectivity in the provision of the Purchased Services.
Connectivity shall notify User of any Claims and shall tender sole control of the defense and settlement thereof to User, provided that User shall in no event consent to the entry of any judgment (other than a judgment of dismissal on the merits without costs) or enter into any settlement unless such settlement (i) does not involve any liability or other obligation on the part of Connectivity and (ii) includes a full release from all liability in respect of such Claim in favor of Connectivity. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of Connectivity to give such notice (or by delay by Connectivity in giving such notice) unless, and then only to the extent that, the rights and remedies of User shall have been actually prejudiced as a result of the failure to give, or delay in giving, such notice.
Notwithstanding the foregoing, User shall not be entitled to assume control of such defense or settlement (unless otherwise agreed to in writing by Connectivity) if the Claim seeks an injunction or equitable relief against Connectivity that, in the reasonable opinion of Connectivity, would have a substantial negative affect on Connectivity or its business if granted. Further, User’s failure to notify Connectivity of its election to defend any Claim within twenty (20) days after written notice thereof shall have been given to User shall be deemed an irrevocable waiver by User of its right to defend such Claim. Finally, Connectivity may assume the defense of any Claim from User if Connectivity reasonably determines that User is not vigorously defending such Claim. If under this Section 12 User is not entitled to defend or to continue defending any Claim or if User for any reason declines or ceases to defend such Claim, Connectivity may defend against such Claim in such manner as it deems appropriate, and User shall pay all associated Losses, including, without limitation, the fees and expenses of counsel retained by Connectivity.
In addition, under no circumstances may User seek an indemnity, contribution or other relief against Connectivity arising from any Claims asserted against User which arise out of or result from, or are connected with, or which are claimed to arise out of or result from, in whole or in part, the Site, the Purchased Services, the Connectivity Data or User’s use of any of the foregoing, unless such indemnity, contribution or other relief is based upon Claims and Losses which are finally determined on the merits of such claim to have resulted primarily and directly from the willful misconduct or fraud of Connectivity in connection with the Purchased Services.
In connection with any Claim, references in Section 12(b), 12(c) or 12(d) to Connectivity shall be deemed to include any members of the Connectivity Group that are subject to such Claim.
Connectivity may amend this Contract by providing notice thereof to User by email at the email address provided by User in the Order Form, by prominently posting such notice on the home page of the Site or by any means via which such notice is actually received by User.
Such amendments shall be effective thirty (30) days after notice, if such notice so states, or if such notice does not so state, then such amendment shall be effective with respect to User upon User’s first renewal of this Contract that follows such notice; provided that any amendment that Connectivity shall implement as a result of a material change in circumstances beyond Connectivity’s reasonable control, including but not limited to a change in applicable law or requirements imposed by any Connectivity vendor or licensor, may at Connectivity’s option be effective immediately upon notice.
If notice of amendment states that it shall be effective thirty (30) days after notice, then User shall have the right to terminate this Contract upon notice to Connectivity provided during such thirty (30) day period, and Connectivity shall refund any unused fees paid by User. If notice of any amendment does not state that it will be effective thirty (30) days after notice but such notice is provided within thirty (30) days of the end of the then current one (1) year initial term or renewal term of this Contract, then, notwithstanding any contrary provision in this Contract or in the Order Form, User may, upon written notice to Connectivity at any time before the end of such current term, terminate this Contract as of the last day of such current term.
Except as otherwise provided in this Section 13, this Contract shall not be amended except in a writing signed by Connectivity and User.
RESOLUTION OF DISPUTES: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS.
The parties shall arbitrate any and all Disputes (other than certain specified intellectual property claims), as follows:
“Dispute” as used in this Section 14 means any dispute arising out of or in any way related to this Contract, any amendments or addenda to this Contract, or the subject matter of this Contract, including but not limited to any contract, tort, statutory or equity claims that relate in any way to (1) this Contract, the Site, the Purchased Services or the Connectivity Data (collectively, the “Contract Subject Matter”), (2) maintenance, support or other services that relate in any way to any of the Contract Subject Matter, (3) the use, operation, licensing, distribution, sale, advertising, promotion, transmission, provision or marketing of any of the Contract Subject Matter, (4) any transaction that relates in any way to any of the Contract Subject Matter, or (5) any claims, statements, promises, descriptions, representations or warranties made in connection with the Contract Subject Matter or any such transaction; provided, however, that any claims specifically described in Section 14.c will not be included in the definition of Dispute.
This Section 14 shall apply to the resolution of Disputes. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute between Connectivity, on the one hand, and User or any affiliate thereof, on the other hand, will be subject to binding arbitration.
The parties expressly agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that this Contract will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law.
The parties expressly agree that any Dispute is personal to them, and any such Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.
The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that Connectivity and User mutually agree upon. If, after making a reasonable effort, Connectivity and User are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules or the appropriate rules of any alternative arbitration forum selected by Connectivity and User or appointed by a court, subject to the following modifications:
The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes.
As limited by the FAA, the terms of this Contract, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this Contract as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary, with the caveat that each party shall have the right to take the deposition of at least one person for at least one day.
In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in this Contract (Section 11), and will not have jurisdiction to make an award to any party to the arbitration contrary to the Limitation of Liability provisions; provided however that if the enforceability of any of these restrictions is limited by the applicable substantive law or by the AAA rules, that restriction will only be enforced to the extent permitted by such law or rules.
The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) will be entitled to recover its reasonable attorneys’ fees and costs incurred: (i) a motion which any party is required to make in the courts to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated in this Section 14.
Connectivity will pay the amount of any arbitration costs and fees charged by the AAA, subject to the right of Connectivity to request that the arbitrator allocate the ultimate responsibility for that fee in a fair and reasonable manner. Unless the arbitrator finds that User is economically unable to pay a share of the arbitrator’s fee or that it is otherwise inappropriate for User to do so, the arbitrator ultimately may decide that User is responsible for some portion of that fee in the arbitrator’s discretion.
Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
The AAA rules are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
The following claims by Connectivity or User shall not be subject to binding arbitration and shall not be submitted to arbitration: (1) claims of infringement or misappropriation of any United States or foreign copyright, patent, trade secret, trademark, service mark or trade dress and (2) claims alleging violations of Title 17 of the United States Code, Sections 1201 and/or 1202, or of any similar foreign law. For any claims not subject to binding arbitration, neither Connectivity nor User will be bound by any decision or award of any arbitrator in connection with the resolution or decision of any question of fact or law required to resolve such claim, including, but not limited to, questions required to decide or rule with respect to the infringement, misappropriation, validity, enforceability or ownership of any copyright, patent, trade secret, trademark, service mark or trade dress or with respect to any remedy or relief at law or in equity for any such infringement or misappropriation or for any violation of such Sections 1201 and/or 1202.
With the exception of the provision above that the enforceability of this Section 14 is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, this Contract otherwise will be construed and enforced in accordance with the laws of the State of California and of the United States of America applicable to contracts entered into and performed in California by residents thereof to the maximum extent permitted by law.
LIMITATION OF TIME PERIOD TO COMMENCE ANY COMPLAINT OR ACTION. Regardless of any statute of limitations or law to the contrary, and to maximum extent permitted by applicable law, any claim or cause of action that constitutes a Dispute as defined in Section 14.a must be filed within one (1) year after the date on which the incident giving rise to the Dispute occurred; provided that, if the substantive law applicable to the arbitration prohibits the parties from agreeing to this limitations period, then the limitations period under the applicable substantive law shall control. The failure of a party to file an arbitration claim within the applicable limitations period shall constitute a waiver by that party of its right to bring such a claim in any form or forum and a complete bar to any claim based on any Dispute, and the arbitrator shall not have jurisdiction to make a determination for a party that has not brought its claim within such applicable limitations period.
ASSIGNMENT. User shall not assign, delegate or otherwise transfer this Contract or any of its rights, remedies, obligations or duties of performance hereunder without Connectivity’s prior written consent. Connectivity may elect whether or not to grant such consent in the exercise of its sole and absolute discretion; provided that such consent shall not be unreasonably withheld if it is to be made in connection with a sale of substantially all of User’s assets. Any purported assignment in violation of this Section 16 shall be null and void ab initio. Connectivity may assign this Contract or delegate any of its obligations or duties hereunder at any time, and Connectivity shall not have any, and User expressly and irrevocably waives any claim against Connectivity, and releases Connectivity, with respect to all, liability that accrues under this Contract after User receives notice or otherwise becomes aware of such assignment.
NO SOLICITATION. During the Term of this Agreement, and for an additional one (1) year thereafter, you shall not, directly or indirectly, solicit (i) Connectivity’s vendors or suppliers to do business or enter into any business arrangement with any entity or person other than Connectivity that relates to products or services that are similar to or compete with the Purchased Services or (ii) any person who is then an employee or independent contractor of Connectivity to work for a person or entity other than Connectivity. Nothing herein prohibits you from engaging in a general solicitation (e.g., solicitations via newspaper, online employment service, trade publication), so long as such solicitation is in no way directed at any Connectivity vendors, suppliers, employees or contractors.
Notices and other communications from Connectivity to User may be made by electronic means, including, without limitation, by posting on the homepage of the Site or by email.
This Contract, including the Order Form, together constitute the entire agreement between Connectivity and User with respect to the subject matter hereof and thereof and supersede any and all prior or contemporaneous oral or written communications relating to the subject matter hereof and thereof. There being no expectations to the contrary between the parties hereto, no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement or alter in any manner any express terms of this Contract. Except as otherwise provided herein, this Contract shall not be amended except by a writing executed by both parties. No waiver of any provision of this Contract or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
If all or part of any provision of this Contract shall be deemed invalid or unenforceable under applicable law, such provision, or the invalid or unenforceable part thereof, shall be deemed stricken from this Contract, and the remainder of this Contract shall continue in full force and effect.
Nothing in this Contract shall be deemed to confer upon any person or entity other than the parties hereto and their respective assigns or other successors in interest a right of action either under this Contract or in any manner whatsoever.
User shall not do anything that circumvents or undermines the purpose or intent of any provision of this Contract.
The parties acknowledge and agree that the provisions hereof that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Contract that are fundamental to the parties’ understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach or other occurrence hereunder. Without limiting the generality of the foregoing, User agrees that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive remedy under this Contract to fail of its essential purpose.
QUESTIONS OR COMMENTS
Should you have any questions concerning this Contract, you may contact Connectivity in writing at _____________________________________________.